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In Re Apollo Group, Inc. Securities Litigation 10-CV-01735-Consolidated Class Action Complaint

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In Re Apollo Group, Inc. Securities Litigation 10-CV-01735-Consolidated Class Action Complaint Case 2:10-cv-01735-GMS Document 45 Filed 02/18/11 Page 1 of 144 1 Richard G. Himelrick (# 004738) J. James Christian (# 023614) 2 TIFFANY & BOSCO P.A. Third Floor Camelback Esplanade II 3 2525 East Camelback Road Phoenix, AZ 85016-9240 4 Tel: 602-255-6000 Fax: 602-255-0103 5 Email: [email protected] [email protected] 6 Local Counsel for Lead Plainti f fs and the Class 7 Stuart M. Grant (admitted pro hac vice) 8 Megan D. McIntyre (admitted pro hac vice) John C. Kairis 9 Diane Zilka Michele S. Carino 10 Christine M. Mackintosh GRANT & EISENHOFER P.A. 11 1201 N. Market St. Wilmington, DE 19801 12 Tel: 302-622-7000 Fax: 302-622-7100 13 Lead Counsel for Lead Plainti f fs and the Class 14 15 IN THE UNITED STATES DISTRICT COURT 16 FOR THE DISTRICT OF ARIZONA 17 IN RE APOLLO GROUP, INC. Lead Case No. CV-10-1735-PHX-GMS 18 SECURITIES LITIGATION Consolidated With: 19 No. CV-10-2044-PHX-GMS No. CV- 10-2121 -PHX-GMS 20 CONSOLIDATED CLASS ACTION 21 COMPLAINT 22 JURY TRIAL DEMANDED 23 24 25 26 27 28 Case 2:10-cv-01735-GMS Document 45 Filed 02/18/11 Page 2 of 144 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION 1 4 II. NATURE OF THE ACTION AND SUMMARY ALLEGATIONS 2 5 III. JURISDICTION AND VENUE 8 6 IV. PARTIES 9 7 A. PLAINTIFFS 9 8 B. DEFENDANTS 9 9 V. FACTUAL BACKGROUND AND SUBSTANTIVE ALLEGATIONS 17 10 A. APOLLO BUILDS AN EMPIRE BY PROFITING AT THE EXPENSE OF STUDENTS, INVESTORS AND U.S. TAXPAYERS 17 11 B. TITLE IV AND THE FOR-PROFIT EDUCATION INDUSTRY 17 12 1. The 90/10 Rule 18 13 2. The Cohort Default Rate 19 14 C. APOLLO EMPLOYED DECEPTIVE RECRUITMENT PRACTICES TO 15 MAXIMIZE ITS ENROLLMENT OF STUDENTS ELIGIBLE FOR TITLE IV AID, IRRESPECTIVE OF THE STUDENTS’ QUALIFICATIONS OR 16 LIKELIHOOD OF SUCCESS 20 17 D. APOLLO USED FRAUDULENT SCHEMES TO ARTIFICIALLY INFLATE REVENUES AND PRESERVE ITS ELIGIBILITY TO RECEIVE TITLE IV 18 FUNDS, IN THE FACE OF INCREASING STUDENT WITHDRAWALS 35 19 E. APOLLO ’ S FINANCIAL STATEMENTS VIOLATED SEC RULES AND GAAP 46 20 F. APOLLO FAILED TO MAINTAIN ADEQUATE INTERNAL CONTROLS 21 OVER FINANCIAL REPORTING 57 22 VI. DEFENDANTS’ FALSE AND MISLEADING STATEMENTS 60 23 A. DEFENDANTS CONCEALED FROM INVESTORS THAT APOLLO ’ S ENROLLMENT AND REVENUE GROWTH WERE DUE TO DECEPTIVE 24 MARKETING PRACTICES, AND FALSELY ATTRIBUTED THEM TO THE PURPORTED QUALITY OF THE COMPANY ’ S SERVICES 60 25 B. DEFENDANTS MADE MATERIALLY FALSE STATEMENTS REGARDING 26 APOLLO ’ S ORGANIZATIONAL VALUES AND MANAGEMENT INTEGRITY 64 27 C. DEFENDANTS MADE MATERIALLY FALSE STATEMENTS REGARDING 28 APOLLO ’ S BUSINESS FOCUS 65 i Case 2:10-cv-01735-GMS Document 45 Filed 02/18/11 Page 3 of 144 1 D. DEFENDANTS MADE MATERIALLY FALSE AND MISLEADING STATEMENTS ABOUT APOLLO ’ S COMPENSATION PRACTICES 69 2 E. DEFENDANTS MADE MATERIALLY FALSE AND MISLEADING 3 STATEMENTS ABOUT APOLLO ’ S PRACTICES REGARDING THE RETURN OF FEDERAL LOAN FUNDS FOR STUDENTS WHO 4 WITHDRAW 70 5 F. DEFENDANTS’ DISCLOSURE OF THE “RISKS” ASSOCIATED WITH APOLLO ’ S REGULATORY REQUIREMENTS WERE MATERIALLY 6 MISLEADING BECAUSE DEFENDANTS KNEW, BUT FAILED TO DISCLOSE, THAT THESE “RISKS” WERE VIRTUAL CERTAINTIES 72 7 G. APOLLO MADE MATERIALLY FALSE AND MISLEADING STATEMENTS 8 ABOUT ITS FINANCIAL CONDITION 76 9 H. DEFENDANTS MADE MATERIALLY FALSE AND MISLEADING STATEMENTS CONCERNING DISCLOSURE CONTROLS AND 10 PROCEDURES AND INTERNAL CONTROLS OVER FINANCIAL REPORTING 93 11 VII. AS INVESTORS BEGIN TO LEARN THE TRUTH ABOUT APOLLO, 12 ITS STOCK PRICE DROPS, BUT THE COMPANY CONTINUES TO DECEIVE THE INVESTING PUBLIC WITH ADDITIONAL FALSE 13 AND MISLEADING STATEMENTS 98 14 VIII. LOSS CAUSATION 112 15 IX. POST-CLASS PERIOD EVENTS 114 16 A. THE ATTORNEYS GENERAL OF FLORIDA AND KENTUCKY LAUNCH INVESTIGATIONS 114 17 B. THE SEC EXPANDS ITS INQUIRY INTO APOLLO 115 18 C. THE DOE COMMENCES THE SECOND PROGRAM REVIEW OF 19 APOLLO ’ S FINANCIAL-AID PRACTICES IN JUST TWO YEARS 115 20 D. THE SENATE HELP COMMITTEE CONTINUES TO INVESTIGATE 115 21 E. UNDER INCREASING REGULATORY AND CONGRESSIONAL SCRUTINY, APOLLO MAKES FUNDAMENTAL CHANGES TO ITS BUSINESS 22 PRACTICES 116 23 X. ADDITIONAL SCIENTER ALLEGATIONS 117 24 A. SENIOR OFFICERS AT APOLLO AND UOP KNEW OF THE COMPANY’ S IMPROPER FINANCIAL AID AND FINANCIAL REPORTING PRACTICES, 25 AND OF THE TRUE SOURCE OF APOLLO ’ S “GROWTH” 118 26 B. THE INDIVIDUAL DEFENDANTS’ COMPENSATION WAS TIED TO APOLLO ’ S FINANCIAL RESULTS 120 27 C. INSIDER TRADING BY DEFENDANTS JOHN SPERLING, PETER 28 SPERLING, D’AMICO AND PEPICELLO SUPPORTS A STRONG INFERENCE OF SCIENTER 121 ii Case 2:10-cv-01735-GMS Document 45 Filed 02/18/11 Page 4 of 144 1 1. The Sales Were Unusual In Timing And Amount 123 2 2. The Sales Are Suspicious Because They Coincided With Massive Stock Repurchases By Apollo 125 3 3. The Timing Of the 2009 and 2010 Sales Is Particularly 4 Suspicious Given Defendants’ Knowledge Of Material, Adverse Information 126 5 D. THE SPERLINGS HAD UTTER CONTROL OVER APOLLO, AND 6 PROFITED HANDSOMELY BY PREYING UPON THOSE LESS FORTUNATE 128 7 XI. CLASS ACTION ALLEGATIONS 129 8 XII. PRESUMPTION OF RELIANCE 131 9 XIII. INAPPLICABILITY OF STATUTORY SAFE HARBOR 132 10 XIV. CLAIMS FOR RELIEF 132 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii Case 2:10-cv-01735-GMS Document 45 Filed 02/18/11 Page 5 of 144 1 I. INTRODUCTION 2 1. Lead Plaintiffs Oregon Public Employees Retirement Fund, 3 Amalgamated Bank (as Trustee for the LongView LargeCap 500 Index Fund, the 4 LongView LargeCap 500 Index VEBA Fund, the LongView Quantitative LargeCap 5 Fund, and the LongView Quantitative LargeCap VEBA Fund) and Mineworkers’ 6 Pension Scheme (collectively, “Plaintiffs”) bring this federal securities class action 7 under the Securities and Exchange Act of 1934 (the “Exchange Act”), on behalf of 8 themselves and all other persons and entities who purchased Class A common stock of 9 Apollo Group, Inc. (“Apollo” or the “Company”) between May 21, 2007 and October 10 13, 2010, inclusive (the “Class Period”). This action alleges that Apollo and certain 11 members of its senior management team – John Sperling, Peter V. Sperling, Joseph L. 12 D’Amico, Gregory W. Cappelli, Charles B. Edelstein, Brian L. Swartz, Brian E. 13 Mueller, Gregory J. Iverson and William J. Pepicello – concealed material information 14 and made false and misleading statements relating to Apollo’s business and financial 15 condition, and violated generally accepted accounting principles (“GAAP”) in 16 accounting for the Company’s revenues, income, and accounts receivable, all of which 17 had the effect of artificially inflating the price of Apollo’s Class A common stock 18 during the Class Period. 19 2. The allegations in this Complaint are based upon information and belief, 20 except as to allegations specifically pertaining to Plaintiffs, which are based on personal 21 knowledge. Plaintiffs base their belief upon information uncovered through an 22 investigation conducted by and under the supervision of Plaintiffs’ attorneys into the 23 facts and circumstances alleged herein. This investigation included, among other 24 things: interviews with confidential witnesses; review of Apollo’s filings with the 25 Securities and Exchange Commission (“SEC”); review of Apollo’s press releases and 26 other public statements; and review of regulatory filings and reports, court filings, 27 Congressional investigation materials, securities analysts’ reports, and media reports 28 about the Company. Plaintiffs believe that substantial additional evidentiary support 1 Case 2:10-cv-01735-GMS Document 45 Filed 02/18/11 Page 6 of 144 1 will exist for the allegations set forth herein after a reasonable opportunity for 2 discovery. 3 II. NATURE OF THE ACTION AND SUMMARY ALLEGATIONS 4 3. Apollo’s founder, John Sperling, is often credited with being the pioneer 5 of the for-profit education industry. Apollo and other companies in this industry tout 6 themselves as providing valuable educational opportunities to those who may be unable 7 to attend traditional colleges and universities – such as working adults, and those 8 seeking to take on-line courses – and as filling the education gap left by non-profit 9 private and public institutions of higher learning. Particularly as many Americans have 10 fallen on difficult economic times in recent years, business has been booming for these 11 for-profit institutions as students have sought out new educational opportunities in 12 hopes of improving their earnings potential and embarking on new career paths. In 13 2008, nearly two million students were enrolled in for-profit institutions to pursue 14 everything from technical certificates to graduate degrees. Not only have these 15 companies been able to attract substantial numbers of students, but they have attracted 16 significant capital from investors by publicly portraying their business models as 17 successful, growing, and sustainable. 18 4. Apollo, one of the largest for-profit education companies, has taken the 19 promise of increased access to higher education and turned it into a nightmare both for 20 the underprivileged and underserved students it purports to serve and for the investors 21 who believed that Apollo’s success was attributable to a sound business model that 22 delivered real results. In actuality, Apollo built its multi-billion dollar global 23 educational leviathan by capitalizing on a lax regulatory environment and weakened job 24 market and by preying on the hopes of millions in dire economic circumstances. 25 Through a combination of aggressive marketing and false and misleading assurances, 26 Apollo has exploited the very population it purports to serve in order to gain access to 27 billions of dollars of revenue awarded through federal student financial aid programs.
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