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Jobs' new Disney role raises conflict concerns

Even with precautions, deals between studio and Apple could raise serious conflict-of-interest issues, experts say.

When Steve Jobs announced the $7.4 billion merger of his Pixar Animation Studios with Disney on Tuesday, he said the two companies could finally move beyond their "two separate sets of shareholders and two different agendas."

But in fact, there are three companies in that equation. Left mostly unsaid throughout the merger celebrations was exactly how Jobs would balance his new role as board member at Disney and his job as chief executive of Apple Computer.

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As Apple has moved into video distribution--using Disney content as its first centerpiece--those two companies' fates have become increasingly entwined. Some corporate governance experts say that puts Jobs in a deeply uncomfortable position, particularly as Apple and its rivals seek to distribute Disney and Pixar films online.

"It's like sitting on both sides of the table when negotiating," said B. Espen Eckbo, the director of the Center for Corporate Governance at Dartmouth University's business school. "The only issue is whether the degree of conflict of interest is large enough to raise a red flag."

This kind of interlocking board of directors is far from rare, but the phenomenon remains a serious concern for the advocates of corporate reform who have gained influence since the costly collapse of companies such as Enron and WorldCom in the early part of the decade.

No one argues that Jobs, Disney or Apple fall in the same category as companies whose executives have been indicted for fraud. But the worry is that Jobs--soon to be the largest Disney shareholder, along with his 1 percent share of Apple as chief executive--is taking on the difficult task of representing two separate sets of shareholders whose interests may not always be identical.

"If we can make great animated films that really affect the culture, there is going to be a strong demand from younger family members to watch them many, many times in many places, on probably many devices."
--Steve Jobs

The most obvious flash point will be the development of Apple's iTunes video business. Jobs and Disney CEO Bob Iger launched this new service together late last year, with Disney-owned ABC Television content such as "Desperate Housewives" and "Lost."

Though Apple has not disclosed its future plans for the service, it is widely expected to seek an expansion of the video service to provide feature films as well as television shows and music videos. The ability to distribute classic Disney and Pixar films to the video iPod or other future Apple devices would represent a coup for the computer company.

"The big picture is that obviously Apple is going to try and make an assault on the living room in 2007, and they need to increase the amount of content they are selling in order to make it work," said Piper Jaffray analyst Gene Munster.

Indeed, in a press conference on Tuesday, Jobs was optimistic about the ability of the new Pixar-Disney match to distribute its content increasingly to new devices, although he stopped short of mentioning Apple or the iPod by name.

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"The opportunity for viewing these films, both on televisions and other types of devices, is huge," Jobs said. "If we can make great animated films that really affect the culture, there is going to be a strong demand from younger family members to watch them many, many times in many places, on probably many devices."

Jobs may also be in a position to gain knowledge about his competitors such as Microsoft, with which Disney has intermittently had a close working relationship on issues such as digital rights management and digital content delivery.

Disney also has a long-term technology agreement with Hewlett-Packard, in which the computer maker provides the studio with a wide range of hardware. The two have done extensive marketing work as part of the pact, which HP inherited as part of its Compaq Computer buyout. In 2003, HP .

For now, Disney says Jobs may take himself out of the stream of discussion for this kind of sensitive issue.

"If there are occasions when the board deals with company business with Apple, appropriate steps, which may include recusal, will be taken to ensure that conflicts of interest are avoided," said Disney spokesman David Caouette.

An Apple representative had no immediate comment on the issue.

Avoiding a Mickey Mouse approach
Not all corporate governance experts are worried about this dual Jobs role.

Paul Lapides, director of the corporate governance center at Kennesaw State University in suburban Atlanta, said he expects conflicts, but he predicts that Disney and Jobs can manage them. In some cases, that may mean Jobs will have to refrain from voting, while in other instances he may have to recuse himself entirely from particular discussions.

"One of the important things is for the board to address these conflicts head-on and not be Mickey Mouse with the situation," Lapides said.

To some extent, it's an area both companies have practice in addressing, and for which both have come under criticism previously.

Apple, for example, was cited in a 2002 Business Week article as having one of America's worst boards, a rating that included measures such as the presence of an independent auditor or financial ties with outside directors. That is the most recent survey of the issue by the magazine. Disney was on the magazine's list of bad boards several times in the 1990s.

In 2002, Apple shareholders put forth a measure to require that the company's compensation and nominating committees be made up entirely of independent directors. The shareholders also wanted to exclude directors who were significant Apple customers or executives at companies on which Jobs sits as a director. At the time, Apple's board members included Jerome York, then-CEO of large Mac dealer Micro Warehouse and Gap's then-CEO Millard Drexler. Jobs, at the time, was on Gap's board of directors.

He later left Gap's board, and Apple added former Vice President Al Gore as another independent director. York and Drexler remain on Apple's board, but both have new posts, York as a venture capitalist and Drexler as CEO of J. Crew. Apple's former CFO, Fred Anderson, is also on the company's board, along with Jobs and Intuit Chairman Scott Cook and Genentech CEO Arthur Levinson.

After long criticism by shareholders, Disney's board of directors was reformed in 2003, reducing the total number of directors from 17 to 13 and giving outside, or so-called independent, directors more power. Jobs, a new 14th board member, will be counted as a nonindependent, or someone with ties to companies that have financial dealings with Disney, the companies said Tuesday.

That qualification helps, but it doesn't eliminate concerns, Dartmouth's Eckbo said. Eckbo is one of a group of governance experts who have called for stricter rules that guard against conflicts even if there are some costs to the companies. Regardless of how strong they might be, efforts to keep Jobs out of decisions that affect Apple are unlikely to be perfect, he said.

"That comes down to whether (those efforts) are actually feasible," Eckbo said. "The fact that Jobs leaves the room when they talk about Apple doesn't mean that he doesn't have an influence on the outcome of the conversation."

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