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Daniel Taubenfeld, Et Al. V. Career Education Corporation, Et Al. 03-CV-8884-Memorandum Opinion and Order

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Daniel Taubenfeld, Et Al. V. Career Education Corporation, Et Al. 03-CV-8884-Memorandum Opinion and Order UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DANIEL TAUBENFELD, Individually and ) On Behalf of All Others Similarly Situated, ) ) Plaintiff, ) ) vs. ) No. 03 C 8884 ) Judge Joan H. Leticow CAREER EDUCATION CORPORATION, ) JOHN M. LARSON and PATRICK K. PESCH, ) ) Defendants. ) MEMORANDUM OPINION AND ORDER Lead plaintiff, Thomas Schroder, individually and on behalf of a class of purchasers of the securities of defendant Career Education Corporation ("CEC") between January 28, 2003 and December 2, 2003 (the "Class Period"), filed this lawsuit alleging that defendants, CEC, John M. Larson ("Larson"), and Patrick K. Pesch ("Pesch") (1) violated § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated under § 78j(b); and (2) violated § 20(a) of the Securities Exchange Act of 1934, 18 U.S.C. § 78t(a). Plaintiff has moved to modify the discovery stay imposed under the Private Securities Litigation Reform Act of 1995, 15 U. S.C. § 78u-4(b) ("PSLRA"). Defendants, in turn, have moved to dismiss the Amended Consolidated Complaint (the "Complaint") for failure to state a claim upon which relief may be granted under Rule 12(b)(6), Fed. R. Civ. P., and for failure to satisfy the pleading requirements of Rule 9(b), Fed. R. Civ. P., and the PSLRA. For the reasons set forth below, defendants' motion is granted without prejudice to plaintiff filing an amended complaint and plaintiff's motion is denied as moot. MOTION TO DISMISS STANDARDS A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat 'l Juvenile Del. Ass 'n, 187 F.3d 690, 695 (7th Cir. 1999). In ruling on the motion, the court accepts as true all well pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in favor of the plaintiff. Jackson v. E.J Brach Corp., 176 F.3d 971, 977 (7th Cit. 1999); Zemke v. City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996). In addition to the mandates of Rule 12(b)(6), Federal Rule of Civil Procedure 9(b) requires "all averments of fraud" to be "stated with particularity," although Imjal ice, intent, knowledge, and other condition of mind of a person may be averred generally." "The rule requires the plaintiff to state the identity of the person who made the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994); see also DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990) ("Although states of mind may be pleaded generally [under Rule 9(b)1, the 'circumstances' must be pleaded in detail. This means the who, what, when, where, and how: the first paragraph of any newspaper story."). "Because only a fraction of financial deteriorations reflects fraud,' . plaintiffs in securities cases must provide enough information about the underlying facts to distinguish their claims from those of disgruntled investors." Arazie v. Mullane, 2 F.3d 1456, 1458 (7th Cir. 1993) (quoting DiLeo, 901 F.2d at 628). 2 Further, in addition to Rule 9(b), the PSLRA imposes "heightened pleading requirements." Johnson v. Tellabs, Inc., 303 F. Supp. 2d 941 at 951 (ND. III. 2004). In order to satisfy the PSLRA' s dictates for claims of securities fraud, "the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information or belief, the complaint shall state with particularity all facts on which that belief is formed." 15 U.S.C. § 78u-4(b)(1). If the complaint fails to meet this requirement under the PSLRA, the court, "shall, on a motion of any defendant, dismiss the complaint." 15 U.S.C. § 78u-4(b)(3)(A). ALLEGATIONS OF THE COMPLAINT' Background CEC is a provider of private, for-profit post-secondary education with 78 campuses throughout the United States, Canada, France, the United Kingdom and the United Arab Emirates. (Am. Compl. at II 2, hereinafter, "iif "). CEC owns and operates schools in the fields of visual communication and design technologies, information technology, business studios, culinary arts, and health education. (I 2). CEC is a Delaware corporation with its principal place of business in t The facts in this section are taken from the Complaint and CEC's Form 10-K for the fiscal year that ended December 31, 2002 and filed with the Securities Exchange Commission ("SEC") on March 7, 2003 ("2002 Form 10- K"), which was attached to defendants' motion to dismiss. The Court may "examine documents that a defendant attached to a motion to dismiss ... if they are referred to in plaintiffs complaint and are central to her claim."Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). Although the 2002 Form 10-K was not attached to the Complaint, it was referred to therein and central to plaintiff's claims. The Court also may take judicial notice of SEC filings without converting a motion to dismiss to a motion for summary judgment. Stavros v. Exelon, 266 F.Supp.2d 833 at 844 n.8 (N.D. Ill. June 13, 2003). The court will disregard the other exhibits attached by plaintiff in his response to defendants' motion to dismiss and the other exhibits attached by defendants to their motion to dismiss because these materials were not referenced in the Complaint. See Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1430 (7th Cir. 1996) ("[I]f the district court considers matters outside the pleadings in connection with a motion to dismiss, it must treat the motion as one for summary judgment."). These exhibits include plaintiff's response exhibits A, B, C, D, E, and F, surreply exhibits A and B, and defendants' exhibits B and C. 3 Hoffman Estates, Illinois. During the Class Period, defendants Larson and Pesch ("individual defendants") were executive officers of CEC. Larson served as CEC's Chief Executive Officer, President and Chairman of the Board. (If 17). Pesch served as CEC's Chief Financial Officer, Treasurer and Secretary. (II 18). CEC's business is highly regulated by federal, state and private accrediting agencies, including the Accrediting Council for Independent Colleges and Schools ("ACICS"). (T 3). Many of CEC's students in the U.S. and Canada participate in government-sponsored financial aid programs, which results in the imposition of extensive regulatory requirements by government funding agencies and other bodies. (178). Because CEC derives a significant portion of its revenue from students involved in the U.S. federal student financial aid programs administered by the U.S. Department of Education ("DOE"), CEC must maintain its authorization from appropriate state agencies, its accreditation by an accrediting agency recognized by the DOE, and its DOE certification. Off 79). In addition, CEC is subject to compliance reviews, claims of non-compliance, and lawsuits by government agencies as a result of the government regulations. Id. CEC's business and stock price depends upon its compliance with these regulations and its accreditation and reputation with students and employers. (113). H. CEC's Alleged Improper Practices Relying on interviews with thirteen CEC employees, the Complaint alleges that CEC engaged in a pervasive practice and pattern which consisted of (a) falsifying student records in order to obtain aid monies and portray CEC schools as having increasing attendance and revenue to gamer the favor of the investing public and (b) manipulating CEC schools' financial statements in order to artificially inflate revenue, lower bad debt reserves, and to avoid cessation of funding from financial aid sources. 4 Off 33). The Complaint asserts that, by failing to disclose such practices, CEC made materially false and misleading statements when publicly touting its business and financial performance, the performance of its stock price, and its position as an industry leader. (114). Moreover, the Complaint alleges that CRC grounded its reports of strong growth in these practices, thereby rendering false and misleading CEC's reported historical financial performance and projections of future growth. Id. In support of these allegations, plaintiff relies on information provided by thirteen witnesses. For example, according to Witness 1, CEC had two critical metrics for measuring its success: (1) overall enrollments, the number of students that pay an application fee, and (2) the number of "starts," the number of students who show up for classes on the first day and remain in school until the "Add/Drop" date. (11 37). Witness 1 asserts further that the Add/Drop date "should be about five days from the first day of class," but "[t]here was considerable flexibility at CRC schools when the Add/Drop date was actually enforced. ." Id. This flexibility allowed schools to add additional students if starts for a particular period fell below the goal even if it meant that the newly added students missed the first two weeks of classes. Id. In addition, the Complaint cites to the admissions of former CEC employees, including Witnesses 1, 2, and 3, that "it was very common for a student to start school with only a portion of their aid and loans in place" although students "were supposed to have complete packages of financial aid and loans at the time of enrollment." (11 38).
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