The US 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 US$40 million, according to the SEC.
The agency 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.
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.
In a response to the SEC case, Anderson's attorney has blamed the backdating on Apple CEO Steve Jobs. Anderson had "cautioned" Jobs that backdated options had to be approved by the board of directors, 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 taken action on the stock option grants that day. Anderson colluded by failing to disclose her 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.
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.