SEC charges former Apple executive in options case

The U.S. Securities and Exchange Commission has charged former Apple general counsel Nancy Heinen of fraudulently backdating stock options, the agency said Tuesday.

Heinen helped backdate options given to Apple’'s top officers, causing the company to under-report its expenses by almost $40 million, according to the SEC.

Tuesday afternoon, Heinen’s attorney issued a statement refuting the SEC’s allegations. “Nancy Heinen’s integrity is unimpeachable,” stated Miles Ehrlich, a partner with Ramsey & Ehrlich.

The SEC filed similar charges against Apple’s former chief financial officer, Fred Anderson, but simultaneously settled that case. Anderson will pay $3.5 million in penalties in response to SEC charges that he should have noticed Heinen’s actions and corrected the company’s financial statements, the SEC said.

A PDF of the SEC’s complaint against the two former Apple executives is available online.

Despite the charges against those employees, the SEC said that Apple itself was in the clear. The commission praised Apple for its “swift, extensive and extraordinary cooperation” in the investigation, including prompt self-reporting, an internal investigation, sharing the investigation results with the government and implementing new controls to prevent future fraud.

Reached for comment, Apple noted that no current employees had been cited by the SEC and referred to the agency’s statement citing the company’s participating in the investigation.

In a response to the SEC case, Anderson’s attorney has blamed the whole incident on Apple CEO Steve Jobs. Anderson had “cautioned” Jobs that backdated options had to be approved in official board meetings, and relied on Jobs’ assurances that had happened, said Anderson’s attorney Jerome Roth in a statement released Tuesday.

In one instance that occurred in February 2001, Apple granted 4.8 million options to six executives including Heinen and Anderson. To avoid reporting an $18.9 million compensation charge, Heinen backdated the options to Jan. 17 when the company share price was much lower, the SEC said. She then told her staff to prepare false documents showing the board of directors had acted on that day. Anderson colluded by failing to the disclose those actions to Apple’s auditors, or ensuring that Apple’s financial statements were correct, the SEC said.

Later, in December 2001, the company granted 7.5 million options to Jobs. Again, Heinen avoided a $20.3 million charge by drafting minutes for a fake board meeting she said happened on Oct. 19, the SEC said. That meeting had never occurred.

Both Heinen and Anderson personally received millions of dollars in unreported compensation through the backdating, the SEC said in its case.

But attorney Ehrlich said those who accuse Heinen of fraud “misunderstand the facts.”

“Nancy did not backdate stock options and she didn’t deceive anyone inside or outside the company. Every action Nancy took was fully understood and authorized by the board,” he stated.

Ehrlich further noted that Heinen had been part of the management team that produced the “storybook turnaround” at Apple in the early 1990s.

Scores of corporations have been charged with similar actions, but the Apple case was particularly onerous because Heinen and Anderson were specifically charged with ensuring that the company created accurate reports of executive compensation.

“Instead, they failed in their duty as gatekeepers and caused Apple to conceal millions of dollars in stock option expenses,” said Marc Fagel, associate regional director of the SEC’s San Francisco office.

In its lawsuit, the SEC is seeking a penalty payment and refund of those profits from Heinen, as well as an order barring her from serving as an officer or director of any other public company.

This story was reposted at 12:11 p.m. PT on Tuesday, April 24, 2007, with updated information from the Securities and Exchange Commission as well as statements from Fred Anderson’s attorney.
Updated at 12:57 p.m. to include a link to the SEC's complaint.
Updated at 2:04 p.m. to correct a reporting error on the extent of the charges.
Updated at 2:33 p.m. to add a comment from Apple.
Updated at 4:49 p.m. to add comments from Nancy Heinen’s attorney.

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