A day before Apple Computer publicly announced results of an internal investigation over stock option backdating, the company’s lawyers held a meeting with federal prosecutors in San Francisco to spell out what they’d found.
Lawyers for Apple wouldn’t comment on Tuesday’s meeting with the feds. “I really can’t say anything about it,” said John Potter, the partner at Quinn Emanuel Urquhart Oliver & Hedges who conducted Apple’s internal investigation for a board committee. And George Riley, a partner at O’Melveny & Myers who represents the company, was similarly taciturn. “To be clear: we have no comment on the story,” he wrote in a Wednesday e-mail.
Apple publicly revealed Wednesday that 15 option awards between 1997 and 2002 “appear to have grant dates that precede the approval of those grants,” according to a public document filed with the SEC.
The company’s CEO, Steve Jobs, apparently “was aware that favorable grant dates had been selected” but was unaware of the accounting ramifications and didn’t personally benefit, the filing said. Board member and former CFO Fred Anderson resigned, it added.
The investigation also raised “serious concerns regarding the actions of two former officers in connection with the accounting, recording and reporting of stock option grants,” the company said in the filing, though it did not specifically name any executives. “The company will provide all details regarding their actions to the SEC.”
Apple is one of dozens of companies under government investigation for stock option backdating. Because of the central role general counsel often play in the issuance of stock options, they have been at particular risk in backdating probes. In August, federal prosecutors in Brooklyn charged former Comverse GC William Sorin for his role in backdating at that company. That same month, McAfee Inc. said it received a subpoena relating to the firing of its general counsel, Kent Roberts.
Longtime Apple GC Nancy Heinen left the company earlier this year for undisclosed reasons. She subsequently retained Cristina Arguedas, the top Bay Area criminal attorney who is also representing former Hewlett-Packard General Counsel Ann Baskins.
Arguedas would only say Wednesday that “Nancy Heinen has had a long career, and is a well-respected lawyer in Silicon Valley, and is well-known for her integrity.”
Read The Recorder‘s roundup of the stock-option backdating scandal. There won’t be a test later … but there might be a subpoena.
Reached Wednesday afternoon, Heinen likewise declined to comment. “I’m in the grocery store, I’m not gonna talk,” she said with a small laugh.
A spokesman for the Northern District U.S. attorney’s office declined to comment on the Apple investigation.
The plaintiff bar immediately descended on Apple after the company first announced it had stock option problems at the end of June. A derivative suit filed in U.S. district court in San Jose does not name Heinen as a defendant, however.
But Jeffrey Krinsk, name partner at San Diego’s Finkelstein & Krinsk, said his firm plans to name Heinen in another derivative class action as an officer who had either been a recipient of backdated stock options, or who had known about Apple’s practices. The firm plans to file in state court by the end of the week.
“We believe there’s liability directed at her for her acts and practices in connection with backdating,” Krinsk said.