Jobs Has Some Explaining to Do in Backdating Case

Apple declined to comment on a Bloomberg News report suggesting that Jobs had been subpoenaed to give a deposition in a lawsuit the SEC has brought against Apple's former general counsel, Nancy Heinen. The SEC also declined to comment.

The SEC in April announced it was suing Heinen and former Apple CFO Fred Anderson in connection with a rash of misdated and backdated stock options grants at the computer and consumer device maker. Anderson promptly settled the charges against him, agreeing to forfeit US$3 million in stock sale profits, but admitting no wrongdoing.

That has left Heinen to fight the charges against her. While the SEC has never said its investigation was closed, it's likely that Jobs is being asked to help build the SEC's case against the former corporate attorney, rather than seeking to take aim at Jobs himself.

For Apple, keeping Jobs away from the stock options scandal is essential not only because he is the face of the company as its founder and the savior CEO who embraced digital music and has transformed the company from a PC-also ran to a technology powerhouse, but also because an internal investigation essentially cleared him of any wrongdoing.

In the Clear

"Jobs is arguably the most protected CEO in the industry because Apple's board appears to believe that his departure would cost the company billions," Enderle Group Principal Analyst Rob Enderle told MacNewsWorld. "Apple hasn't been able to step away from this problem yet."

In April, a special investigative committee set up by Apple's board reported on the options issues and said Jobs had no direct involvement and did not benefit financially from any options dating shenanigans. Following that report, Apple's board of directors said it had "complete confidence" in Jobs.

However, Apple's board "has no more say" in how the case turns out now, Enderle noted. "It's up to the SEC and the Justice Department now."

There has always been a risk that Heinen would seek to strike a deal with the SEC and implicate Jobs in the process. In fact, when Anderson's attorney announced his settlement, he gave a statement that suggested Jobs was more involved than the internal investigation revealed.

Dozens of companies both inside and outside the technology sector have been caught up in the options backdating imbroglio since it began more than two years ago.

While there have been several high-profile CEO resignations as a result of backdating scandals, the stakes for executives were ratcheted up significantly last month when Brocade CEO Gregory L. Reyes was found guilty of fraud and conspiracy in connection with backdating, the first high-profile criminal conviction involving a tech company.

Staying Alive

Even if Jobs isn't the focus of the investigation, being called in to testify under oath has its risks, Enderle noted. "I think the SEC is aware that there was an attempt to use the CFO and counsel as scapegoats. Jobs is historically incredibly lucky in this regard, that doesn't mean he will be again in this instance."

Apple investors didn't seem to be spooked by the report, with Apple stock relatively unchanged in afternoon action Thursday at $140.81.

While investors were nervous for a time last year about how the scandal would unfold, they have since focused on Apple's strong and growing product portfolio, such as the addition of the iPhone.

The track record of other companies that have come through the options scandal gauntlet suggests Apple would likely suffer relatively little damage to its reputation, market share or stock market value, said University of Iowa business professor Erik Lie, who has followed the scandal.

For one thing, Lie told MacNewsWorld, investors have come to accept that the practice was widespread and done not to deceive shareholders or regulators but to ensure that executives would be compensated well enough to stay with the companies.

"Regulators are likely to go after the most egregious cases to help send a message, but most companies will not be severely impacted," Lie added.

Meanwhile, the SEC and Heinen's attorneys have been jockeying in court over procedural elements of the trial, including how many depositions each side will take and when the trial will start.