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More execs face backdating day in court
Both the government and shareholders are likely to seek justice in growing options scandal.
By Shaheen Pasha, CNNMoney.com staff writer

NEW YORK (CNNMoney.com) -- The widespread options backdating scandal is gaining new momentum after the Department of Justice charged executives from Comverse Technology with securities fraud for profiting from manipulated stock options.

It was the second set of high-profile arrests resulting from the government's wide probe into options backdating. For Corporate America, it should serve as a wake up call: The government is on a mission to prosecute wrongdoers in the latest scandal to hit Wall Street.

kobi.03.jpg
An arrest warrant is out for former Comverse CEO Kobi Alexander. He's charged with securities fraud for profiting from backdated options.

Former Comverse (Charts) finance chief David Kreinberg and former senior general counsel William Sorin surrendered to the FBI Wednesday. They were arraigned in a New York federal courthouse on charges that they, as well as former chief executive Jacob "Kobi" Alexander, embarked on a scheme to defraud investors while pocketing millions of dollars through profits from backdated options.

A warrant is out for Alexander's arrest after he failed to turn himself in to authorities.

The arrests came just one month after Brocade Communication System's (Charts) former CEO Gregory Reyes, along with another executive, were charged in California with scheming to backdate stock options.

More litigation to come

And experts believe that this is just the beginning of what could be an onslaught of litigation, both criminal and civil, against corporations ensnared in the widening web of the options backdating scandal.

"It's like sitting on a beach and watching a wave swell," said Michael Koenig, an attorney at the Washington office of law firm Dewey Ballantine. "I think we're in the infancy of these kinds of cases."

But Koenig said the government is going to be careful in the cases it picks for prosecution, looking for those companies whose actions were so obviously egregious that they can point to specific evidence of wrongdoing as opposed to circumstantial evidence.

In Comverse's case, the executives are accused of creating a "slush" fund to hide extra options that Alexander could hand out to keep favored employees away from competitors. The fund was full of option grants under fictitious employee names, creating a pool of money without an actual recipient.

The government accused the executives of then hiding the information from auditors.

Experts said the public just hasn't shown the same level of outrage over the backdating practices that was seen during the accounting scandals a few years earlier. For that reason, prosecutors are going to look for misdeeds that can easily be explained to jurors.

"It's just not rising to the level of public interest of Enron where people lost their pension funds and witnessed massive corporate implosions," said John Bielema, securities litigation defense partner at Atlanta-based Powell Goldstein LLP. "The issue is technical related to stock prices, performance based compensation and tax deductions, which may be esoteric for the average person."

But that could easily change, Koenig said, as the public begins to focus more on executive compensation rules. Late last month, the SEC overhauled rules for executive compensation by requiring companies to disclose the timing and price of stock options awarded to executives.

He added that he expects increasing intensity around the issue as more and more companies become ensnared in the investigation.

Shareholder lawsuits likely

And if stock prices for corporations begin to take a massive hit from restatements and government scrutiny, that could result in some large shareholder lawsuits that raise public awareness of the issue.

It's been a steadily unfolding drama in recent months as dozens of corporations were subject of investigations by the FBI, Securities and Exchange Commission and IRS for the questionable way in which top executives exercised company options.

Authorities take issue with the way some executives awarded options on one date, but set an earlier date in order to precede a rally in the share price and lock in profits for the option recipient.

The government is also looking into spring loading, in which options are issued before the announcement of positive news, and bullet-dodging, in which dates are set after the company issues negative news.

While none of the practices are illegal, companies can run into trouble if they don't properly disclose or account for the options.

Erik Lie, assistant professor of finance at the University of Iowa - whose research put a spotlight on the granting of options to executives prior to big run-ups in the stock price - said he expects the number of companies involved in the scandal to grow.

Investigations to grow

Already there are over 80 investigations underway, affecting dozens of high-profile companies such as Apple (Charts) and Cablevision (Charts). Lie said that thousands of companies have been involved in backdating, and as more corporations pursue internal investigations, it's likely more evidence of improper disclosure and fishy documentation will surface.

As it is, Wall Street is already feeling the effects as corporations restate past earnings and delay earnings reports to conduct internal reviews.

And where the government may have a tougher time bringing criminal charges, legal experts expect that private plaintiff lawyers will be actively looking to bring class action lawsuits against corporations.

"You're going to see a lot of derivative suits as shareholders brings lawsuits against directors and officers saying that they've breached fiduciary duty by awarding executives backdated options," said Powell Goldstein's Bielema.

And for corporations already investing millions of dollars into hiring lawyers and auditors to investigate its own practices, settlements with shareholders could prove costly, he added.

As for the government, legal experts aren't expecting any leniency for executives charged with profiting from fraud.

"I don't see the government trying to cut any sweetheart deals," Bielema said. "They want to send a message that they're going to take this issue seriously."

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