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Teamsters Local 617 Pension and Welfare Funds, Et Al. V. Apollo

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Teamsters Local 617 Pension and Welfare Funds, Et Al. V. Apollo Case 2:06-cv-02674-RCB Document 112 Filed 04/30/2009 Page 1 of 78 1 BUCKLEY KING MICHAEL SALCIDO 2 2020 North Central Avenue, Suite 1120 Phoenix, AZ 85004 3 Telephone: 602/424-2550 602/424-2566 (fax) 4 [email protected] 5 Liaison Counsel 6 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 7 JEFFREY W. LAWRENCE CHRISTOPHER M. WOOD 8 100 Pine Street, Suite 2600 San Francisco, CA 94111 9 Telephone: 415/288-4545 415/288-4534 (fax) 10 [email protected] [email protected] 11 Lead Counsel for Lead Plaintiff 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF ARIZONA 14 TEAMSTERS LOCAL 617 PENSION ) No. 2:06-cv-02674-RCB 15 AND WELFARE FUNDS, on behalf of ) itself and all other similarly situated, ) CLASS ACTION 16 ) Plaintiff, ) LEAD PLAINTIFF’S SECOND 17 ) AMENDED COMPLAINT FOR vs. ) VIOLATIONS OF THE FEDERAL 18 ) SECURITIES LAWS APOLLO GROUP, INC., et al., ) 19 ) Defendants. ) 20 ) 21 22 23 24 25 26 27 28 Case 2:06-cv-02674-RCB Document 112 Filed 04/30/2009 Page 2 of 78 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION.................................................................................................... 1 4 II. JURISDICTION AND VENUE............................................................................... 5 5 III. PARTIES.................................................................................................................. 6 6 IV. DEFENDANTS’ DUTIES WITH RESPECT TO GRANTING AND APPROVING STOCK OPTION GRANTS .......................................................... 10 7 A. Apollo’s Stock Option Plans....................................................................... 11 8 V. BACKDATED STOCK OPTION GRANTS AT APOLLO ................................. 13 9 A. 1998 Option Grants ..................................................................................... 13 10 B. 1999 Option Grants ..................................................................................... 14 11 C. 2000 Option Grants ..................................................................................... 15 12 D. 2001 Option Grants ..................................................................................... 17 13 E. 2003 Stock Options ..................................................................................... 19 14 VI. DEFENDANTS’ FALSE AND MISLEADING STATEMENTS ISSUED 15 DURING THE CLASS PERIOD........................................................................... 20 16 False and Misleading Earnings Releases and Financial Filings............................. 21 17 False and Misleading Statements Regarding Compliance with APB 25 and IRS Code §162(m) ...................................................................................... 32 18 False Sarbanes-Oxley Act of 2002 (“SOX”) Certifications................................... 35 19 VII. THE TRUTH BEGINS TO EMERGE................................................................... 37 20 A. The Restatement.......................................................................................... 43 21 VIII. ADDITIONAL ALLEGATIONS OF SCIENTER................................................ 52 22 A. The Company’s Admissions and Recent Actions Establish 23 Defendants’ Scienter ................................................................................... 53 24 B. Defendants’ Specific Participation in the Backdating Establishes Their Scienter .............................................................................................. 54 25 C. Defendants’ Personal Enrichment Through Lucrative Stock Option 26 Grants and Insider Trading Supports a Finding of Scienter........................ 59 27 D. The Fact that Failing to Report Compensation Expenses from Backdated Options Was Essential to Maintaining Apollo’s Profitable 28 Performance Supports a Strong Inference of Scienter ................................ 60 - i - Case 2:06-cv-02674-RCB Document 112 Filed 04/30/2009 Page 3 of 78 1 2 Page 3 E. The Mass “Retirements” of Apollo Directors and Executives Supports a Strong Inference of Scienter...................................................... 60 4 IX. LOSS CAUSATION .............................................................................................. 60 5 X. APPLICABILITY OF PRESUMPTION OF RELIANCE: FRAUD-ON- 6 THE-MARKET DOCTRINE................................................................................. 62 7 XI. APPLICABILITY OF THE AFFILIATED UTE PRESUMPTION OF RELIANCE ............................................................................................................ 63 8 XII. NO SAFE HARBOR.............................................................................................. 64 9 XIII. LEAD PLAINTIFF’S CLASS ACTION ALLEGATIONS .................................. 64 10 FIRST CLAIM FOR RELIEF 11 For Violation of §10(b) of the Exchange Act and Rule 10b-5 Against Defendants Apollo, Nelson, Norton, Gonzales and Blair ...................................... 66 12 SECOND CLAIM FOR RELIEF 13 For Violation of §20A of the Exchange Act Against Defendant Blair.................. 69 14 THIRD CLAIM FOR RELIEF For Violation of §20(a) of the Exchange Act Against All Defendants.................. 70 15 PRAYER FOR RELIEF.................................................................................................... 71 16 JURY DEMAND............................................................................................................... 72 17 18 19 20 21 22 23 24 25 26 27 28 - ii - Case 2:06-cv-02674-RCB Document 112 Filed 04/30/2009 Page 4 of 78 1 I. INTRODUCTION 2 1. Lead Plaintiff, the Pension Trust Fund For Operating Engineers (“Operating 3 Engineers” or “Lead Plaintiff”), brings this federal securities law class action on behalf of 4 itself and all persons who purchased or otherwise acquired the publicly traded securities of 5 Apollo Group Inc. (“Apollo” or the “Company”) between November 28, 2001 and 6 October 18, 2006 (the “Class Period”), against Apollo and certain of its officers and/or 7 directors for violations of the Securities Exchange Act of 1934 (the “Exchange Act”). 8 2. This action involves an admitted fraudulent scheme that spanned nearly five 9 years. At the crux of the fraudulent scheme was a practice whereby defendants overstated 10 Apollo’s earnings and income by failing to report compensation expenses associated with 11 granting in-the-money stock options, which had been intentionally manipulated in order to 12 provide the recipients with a more profitable exercise price. As a result of this scheme, 13 Apollo was forced to restate its previously filed financial statements for fiscal years 2001 14 through the second quarter of 2006 by over $59 million (the “restatement”). Defendants’ 15 scheme caused the Company’s financial statements issued during the Class Period to be 16 materially false and misleading, resulting in an artificial inflation of the Company’s stock 17 price, the disclosure of which caused investors to lose hundreds of millions of dollars. By 18 engaging in this scheme, defendants, among other things, concealed that Apollo was not 19 recording material compensation expenses and was materially overstating its net income and 20 earnings per share, in violation of the Generally Accepted Accounting Principles (“GAAP”). 21 3. A stock option granted to an employee of a corporation allows the employee to 22 purchase a specified number of shares of company stock at a specified price – referred to as 23 the “exercise price” or “strike price” – for a specified period of time. To qualify for 24 favorable accounting and tax treatment, options are often required to be priced at the market 25 price on the date of the grant, as Apollo’s were required to be, in order to incentivize 26 corporate performance and profitability by good, honest management efforts. When the 27 employee exercises the option, he or she purchases the stock from the company at the 28 exercise price, regardless of the stock’s market price at the time the option is exercised. If - 1 - Case 2:06-cv-02674-RCB Document 112 Filed 04/30/2009 Page 5 of 78 1 the Company has grown and prospered, the share price will have increased from the strike 2 price and the option grantee will pocket the difference. Stock options are granted by public 3 companies as part of compensation packages for employees and executives to align their 4 interests with those of the shareholders. 5 4. Where, however, the system is abused by backdating the options, that is, 6 picking an option-grant date earlier and at a lower price than the actual date the option was 7 granted – or by “spring-loading,” i.e. , granting the stock option just before the company is 8 going to issue positive news which will likely push the stock price up, the executive gets an 9 instant, unearned profit and the incentive to grow the company is gone because the executive 10 has already made a profit without doing anything. Further, the company is hurt as the spread 11 between the true grant exercise price and the market price is required by law to be treated as 12 compensation expense, which reduces profits, results in the corporate stock option plan 13 losing its tax protection and the corporation’s internal non-public information is 14 misappropriated by the executives for their personal profit. Shareholders and share 15 purchasers are also hurt, as the reported corporate profits are improperly inflated, as is the 16 trading price of the stock (at least until the truth comes out), and their ownership interest in 17 the corporation is unfairly diluted. 18 5. Stock option manipulation and,
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