Monster Stock-Option Backdating Settlement

A week after former Brocade C.E.O. Gregory Reyes was sentenced to 21 months in prison after becoming the first executive convicted of criminal charges for backdating stock options, federal prosecutors announced a conclusion of sorts in another closely watched case.

Michael J. Garcia, United States Attorney for the Southern District of New York, announced a deal today for the deferred prosecution of Andrew J. McKelvey, the former chief executive of Monster Worldwide. McKelvey is accused of of fraud and conspiracy in connection with the backdating of millions of dollars' worth of stock options.

The press release from the prosecutors' office highlights that the deferral is "in light of medical condition." McKelvey, 73, suffers from terminal pancreatic cancer.

As part of the deal, McKelvey agreed to issue a statement in which, according to the prosecutors' press release, he accepts his "responsibility for his participation in the backdating scheme."

In the statement, McKelvey says that from 1997 through 2003 he and others at Monster Worldwide "routinely selected prices for stock options grants based on historical dates when Monster's stock price had closed at, or near, a low point, resulting in grants of in-the-money stock options."

He added: "Thereafter, I signed and certified public filings with the S.E.C. that reported false and misleading financial results and contained misleading descriptions of Monster's options granting process. These filings created the impression that Monster did not grant in-the-money options and failed to disclose the compensation expense resulting from the in-the-money options grants."

As a result, Monster's results between 1997 and 2005 fraudulently understated the company's compensation expense, and inflated earnings by more than $300 million.

Fair enough. But is it really a mea culpa? Most criminal defense lawyers would argue McKelvey lacked criminal intent. The criminal complaint made public today says that investigators have debriefed the company's former general counsel, Myron Olesnyckyj, who pleaded guilty last year and has been cooperating with prosecutors.

During that debriefing, prosecutors said that "McKelvey was advised that backdating options without disclosing it or publicly reporting the resulting compensation expense was improper."

Under the agreement, McKelvey must not leave jurisdictions in New York, New Jersey and southern Florida, and "shall only associate with law-abiding persons." That may constrain his contact with former chums from Monster.

But it is hard to quip at a time like this. McKelvey has also entered into a settlement with the Securities and Exchange Commission, agreeing to pay $275,989.75 in "disgorgement and interest."

McKelvey did not receive backdated options, an S.E.C. press release notes, but he benefited by granting backdated options to four people he personally employed—three pilots and a mechanic.

The S.E.C. news release ends on this ominous note, if you happen to be a defense lawyer:

"The Commission's investigation of this matter is continuing."

by Karen Donovan