Overshadowing Apple's excitement over iPhone

SAN JOSE, Calif. - As much as Apple Inc. wants to focus on its future with a new name and gadgets introduced Tuesday at the Macworld show, federal investigators are unlikely to overlook the company's past stock option practices.

The Cupertino, Calif., company still has not said that it has been a target of any investigations by the Securities and Exchange Commission or the Justice Department. The federal agencies are probing dozens of companies nationwide for backdating stock options.

But legal experts say Apple's revelations last month about documents from a board meeting that never occurred, chief executive officer Steve Jobs' fame, and the recent departure of two key Apple executives make this a case regulators must review carefully.

"It's not an advantage to be prominent in an SEC investigation - in fact, it's a disadvantage," said Richard M. Phillips, a senior partner for law firm K&L Gates, of San Francisco. "The investigation is likely to be even more thorough."

Apple's internal review of options manipulation identified no misconduct by current executives. But if regulators come to different conclusions, they could press for sanctions against the company and pursue civil or criminal charges against individuals.

Though outsiders can only speculate about how the case will unfold, lawyers and law professors say it is likely to follow a blueprint that government prosecutors tend to use in white-collar cases.

Regulators typically will work to resolve the case against the company, a behind-the-scenes process that could take months, while civil or criminal probes and prosecution against individuals proceed on a slower track that could take years to resolve.

Options give the holder the right to buy shares in the company's stock at a specific price - usually the market price on the days the options are granted.

Backdating involves changing the timing of stock option grants to a date when the stock price was lower. That can give the holder a bigger profit.

Although it is not illegal to backdate options, it must be properly disclosed to regulators, investors and tax authorities. The practice can crimp corporate profits, trigger taxes for the company and recipient, and violate a company's stock plan. The practice generally is frowned upon by corporate-governance experts.

Apple's findings by an outside law firm and forensic accountants are likely to provide the road map for federal investigators. Among other things, Apple's probe found that:

Jobs received tainted options.

Records were falsified to support a 2001 options grant to him.

Jobs "recommended the selection of some favorable grant dates."

Jobs did not benefit financially from any questionable stock awards, Apple said in a filing with the Securities and Exchange Commission last month. It added, however, that its investigation revealed that the company's stock option procedures "did not include sufficient safeguards to prevent manipulation."

Apple's board has expressed its "complete confidence" in Jobs and current executives, but regulators are not likely to be satisfied, experts predict. Instead, they are likely to examine documents, interview key players, and review evidence.

Besides the irregularities at Apple, questions abound about the suspicious timing of options awarded to executives at Pixar Animation Studios Inc., which Jobs headed at the time.

Apple spokesman Steve Dowling declined to confirm whether the company was the subject of an inquiry by either the SEC or Justice Department. However, he said, the company had responded to inquiries from regulators and has voluntarily turned over its findings to both agencies.

Apple's decision to investigate voluntarily could buy it some leniency from the SEC, some experts say.

"The best thing is to tell the government there is a problem and keep the government apprised so they know you are cleaning your own stable," said James D. Cox, a law professor at Duke University. "That has worked a lot."

Last week, the San Francisco legal newspaper the Recorder reported that Apple recently fired the attorney who "fabricated meeting minutes" for a fictitious board meeting when Jobs' 2001 grant of 7.5 million options was supposedly approved.

The attorney, Wendy Howell, did not return phone messages seeking comment.

U.S. Attorney Kevin Ryan, who set up a task force of SEC, Justice Department and Internal Revenue Service examiners, declined to comment on the Apple case. But Ryan has said the team would be hunting mostly for executives or managers who acted fraudulently and intended to deceive investors.

Any case that might develop against Jobs would have to be built painstakingly, legal experts say. While regulators are drawn to such cases because they send a potent message that even the mighty will be prosecuted, they typically are difficult to prove in court.

"Because it is high-profile, any mistakes are going to be magnified," and prosecutors do not want to be second-guessed, said Jahan P. Raissi, a lawyer for Shartsis Friese & Ginsburg L.L.P.

The pressure would intensify if the government took aim at Jobs.

"At the end of the day, it will not be that clear a case," Cox, the Duke law professor, said. "You've got to really think about what the endgame is. Who wants to be the one whose career is built on 'You brought down Steve Jobs'? It's a little like undressing Mary Poppins."