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Tuesday, December 26, 2006, 02:00 pm PT (05:00 pm ET)

Jobs seeks outside counsel as Apple restatement looms

An impending financial restatement by Apple Computer and uncertainties regarding formal charges by the Securities and Exchange Commission may have driven chief executive Steve Jobs to seek some outside representation.

According to a starkly revealing piece by The Recorder published on Law.com, falsified documents — like those recently revealed in an internal Apple probe — are one of the key issues for government officials trying to determine which of their 100-plus backdating investigations will be pursued as criminal matters and which will be limited to civil SEC inquiries.

The report cites "individuals with knowledge of the probe" as saying the U.S. attorney's office has shown great interest in Apple's case since the findings of the company's internal investigation were disclosed to San Francisco federal prosecutors in October.

"When there are falsified documents, the government views them as an intent to defraud, because people generally don't falsify documents unless they're trying to make things different from reality," commented one attorney who has worked an unrelated backdating case. "They view that as intent."

While it's still unclear on who prosecutors will focus, Apple in an October statement said its "investigation raised serious concerns regarding the actions of two former officers in connection with the accounting, recording and reporting of stock option grants."

The Recorder in its piece cites "individuals with knowledge of the case" in corroborating prior suspicions that those two ex-officers are indeed Nancy Heinen and Fred Anderson, the company's former general counsel and chief financial officer, respectively.

Interestingly, the report notes that Heinen's departure from Apple last spring — prior to the options blow up — "was the result of a tiff with CEO Steve Jobs unrelated to options." Meanwhile, it's well know that Anderson, who retired as CFO in 2004, surrendered his seat on Apple's board in October following the findings of the company's internal probe.

In a filing with the SEC that same month, Apple said that, "in a few instances," Jobs was also "aware that favorable grant dates had been selected, but he did not receive or otherwise benefit from these grants and was unaware of the accounting implications."

The company concluded that its "investigation found no misconduct by any member of Apple's current management team." However, The Recorder now claims that in recent weeks Jobs "has apparently decided that he needs his own legal representation, separate from Apple's lawyers at O'Melveny & Myers, and has hired his own attorney to deal with the SEC and Justice Department."

In speaking to The Recorder, Apple spokesman Steve Dowling maintained that the company would file its annual report for 2006 by Friday.

"It must be some consolation for [Apple] that the company's annual report is going to be published during the slowest news week of the year," the publication wrote. "Given the uncomfortable admissions about its past stock options practices — and the cost to the company — that Apple will have to make in the delayed SEC filing due by Friday, less public attention is probably a good thing."