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The U.S. Securities and Exchange Commission’s civil fraud charges against former Apple Inc. General Counsel Nancy Heinen last week was the SEC’s highest-profile condemnation of stock-options backdating at a technology company thus far. But attorneys involved in the case are divided on whether Heinen’s apparent defense � that she did not backdate options but actually forward-dated them in accordance with what she thought the law allowed � will hold water with a jury. In addition, though the SEC’s Apple complaint did not come down on board members or outside counsel that does not necessarily mean those people are in the clear, according to a longtime securities litigator not involved in the case, speaking on condition of anonymity. 7.5M options for Jobs The largest grant in question, giving Apple Chief Executive Steve Jobs 7.5 million options, was awarded in December 2001 and then backdated to Oct. 19 of that year, the SEC alleges. The stock price was lower in October, making the options worth much more. Heinen, the SEC alleges, then signed fictitious board meeting minutes stating that directors had approved the grant on Oct. 19. The meeting never occurred. Several newspapers quoted Heinen “defense sources” last week arguing that Heinen chose not to backdate the grant to August � when discussions about them began � but instead pushed it forward to a date in October. Heinen’s attorney, Miles Ehrlich, name partner at Ramsey & Ehrlich of Berkeley, Calif., said in a statement that Heinen was “singled out” among the thousands of executives across the country involved in the stock-options backdating scandal. But will the “forward date, not backdate” defense fly in court? SEC attorneys aren’t fazed. “It’s not a new argument to us,” said Michael Dicke, assistant director of the SEC’s regional office. “The fairest course of action would have been to disclose to the auditors and allow them to make the final conclusion [about grant dates] rather than choosing something and creating false documentation to record it,” SEC attorney Sahil Desai added.

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