CIV. NO. 2:10-cv-01061-RCM J. KILLEEN, JOHN R. MCKERNAN, …securities.stanford.edu/.../2011110_r01c_10CV01061.pdf · 2011. 3. 3. · Case 2:10-cv-01061-NBF -RCM Document 56 Filed

Case 2:10-cv-01061-NBF -RCM Document 56 Filed 01/10/11 Page 1 of 168

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF PENNSYLVANIA

)DOUGLAS N. GAER, Individually And )On Behalf of All Others Similarly Situated, )

) CIV. NO. 2:10-cv-01061-RCMPlaintiff, )

)vs. )

)

EDUCATION MANAGEMENT CORP., TODD ))

S. NELSON, EDWARD H. WEST, RANDALL )J. KILLEEN, JOHN R. MCKERNAN, JR.,ADRIAN M. JONES, JEFFREY T. LEEDS, )LEO F. MULLIN, PAUL J. SALEM, PETER O. )WILDE, GOLDMAN, SACHS & CO., J.P. )

)MORGAN SECURITIES INC., MERRILL)

LYNCH, PIERCE, FENNER & SMITH, INC., )BARCLAYS CAPITAL INC., CREDIT SUISSE FILED ELECTRONICALLY

)SECURITIES (USA) LLC, MORGANSTANLEY & CO. INC., ROBERT W. BAIRD & )CO. INC., WILLIAM BLAIR & CO., L.L.C., )BMO CAPITAL MARKETS CORP., PIPER )

)JAFFRAY & CO., BARRINGTON RESEARCH JURY TRIAL DEMANDED

)ASSOCIATES, SIGNAL HILL CAPITAL )

GROUP, LLC, and STIFEL, NICOLAUS & CO., )INC. )

Defendants. ))

AMENDED CLASS ACTION COMPLAINT

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TABLE OF CONTENTS

I. SUMMARY OF THE ACTION 2

II. OVERVIEW OF THE SEPARATE CLAIMS 7

III. JURISIDICTION AND VENUE 8

IV. PARTIES 8

A. Plaintiffs 8

B. Defendants 9

1. Education Management Corporation 9

2. Individual Defendants 9

3. Underwriter Defendants 11

V. REGULATORY BACKGROUND 13

A. Eligibility and Participation in Title IV Programs 14

B. Negotiated Rulemaking 17

VI. LEAD PLAINTIFF’S INVESTIGATION AND CONFIDENTIALSOURCES 19

A. Description of Confidential Sources 19

B. Post-Class Period Statements of Current EDMCEmployee to Congress 30

VII. VIOLATIONS OF THE SECURITIES ACT 37

A. EDMC’s October 1, 2009 IPO 38

B. The Registration Statement Contained Untrue and MisleadingStatements and Failed to Disclose Material Information 40

1. Improper Recruiting and Enrollment PracticesThat Materially Affected Enrollments 41

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2. Pressure on Admissions Staff to Enroll Students and ImproperIncentive-Based Compensation Practices That ResultedIn Improper Recruiting and Enrollment Practices 44

3. Academic Program Quality and Graduate Career PlacementWere Not As Described 47

4. Enrollment and Financial Data Disclosed in the RegistrationStatement Did Not Comply With Relevant GAAP and SECReporting Requirements 49

5. Omissions Regarding Material Related Party TransactionWith Goldman Sachs Capital Partners Affiliate 53

6. Omissions Regarding Material Federal Regulatory ChangesWith Respect to “Gainful Employment” and IncentiveCompensation 58

C. The Untrue and Misleading Registration Statement 60

1. Statements Regarding EDMC’s Historical EnrollmentGrowth and Marketing Practices Omitted MaterialInformation About EDMC’s Improper Recruitingand Enrollment Practices 61

2. Additional Untrue Statements and Material OmissionsRegarding EDMC’s Academic Program Quality andGraduate Career Placement 69

3. Additional Untrue Statements and Material OmissionsRegarding EDMC’s Incentive Compensation Practices 72

VIII. CAUSES OF ACTION UNDER THE SECURITIES ACT 74

IX. VIOLATIONS OF THE EXCHANGE ACT 79

A. The Fraudulent Scheme 80

1. EDMC Systematically Employed Abusive and DeceptiveRecruiting and Enrollment Practices Encouraged byManagement and Managements’ Unrealistic EnrollmentQuotas and Improper Incentive-Based Compensation 80

a. EDMC Management Set Unrealistic EnrollmentQuotas And Constantly Monitored EnrollmentNumbers And Admissions’ Staff Quotas 80

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b. EDMC’s Improper Incentive-Based CompensationSystem 84

c. EDMC’s Systemic Abusive and Deceptive Recruitingand Enrollment Practices 87

d. EDMC Manipulated Its Graduate Employment andEnrollment Figures 93

2. Misrepresentations Regarding Changes to Title IVRegulations 94

3. The Exchange Act Defendants Concealed a Material RelatedParty Transaction With an Affiliate of Goldman SachsCapital Partners 97

B. The Exchange Act Defendants’ Material False and MisleadingStatements and Omissions 100

1. The Registration Statement 100

2. First Quarter Fiscal Year 2010 101

3. Second Quarter Fiscal Year 2010 110

4. Third Quarter Fiscal Year 2010 117

C. The Truth Begins to Emerge 125

D. The Exchange Act Defendants’ Additional Violationsof GAAP 141

E. Post-Class Period Events 145

1. Defendant Nelson’s Admission Regarding theSignificant Impact of the Proposed “Gainful Employment”Regulations 145

2. Statements of Current EDMC Employee Bittelto Congress 146

3. Attorneys General Investigations Regarding EDMC 146

4. Material Related Party Transaction 147

iii

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5. Report Regarding EDMC’s Revenues From MilitaryStudents Resulting From Abusive and DeceptivePractices 147

F. Additional Scienter Allegations 148

1. The Undisclosed Material Related Party Transaction Withan Affiliate of Goldman Sachs Capital Partners Supportsa Strong Inference of Scienter 148

2. Defendants Nelson and West Were Motivated to CommitFraud Because Their Compensation Was Tied toEDMC’s Performance 150

3. The Magnitude and Pervasiveness of the Abusive andDeceptive Recruiting and Enrollment Practices and theNature of the Practices Supports a Strong Inference ofScienter 151

4. The Exchange Act Defendants’ Statements Regarding“Gainful Employment” Support A Strong Inferenceof Scienter 152

5. The Misconduct Relates to EDMC’s Core Operations 153

G. Loss Causation/Economic Loss 153

X. CAUSES OF ACTION UNDER THE EXCHANGE ACT 156

XI. CLASS ACTION ALLEGATIONS APPLICABLE TOALL CLAIMS 158

XII. NO SAFE HARBOR 161

XIII. PRAYER FOR RELIEF

162

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Court-appointed Lead Plaintiff Oklahoma Police Pension and Retirement System

(“Oklahoma Police”) and Plaintiff Southeastern Pennsylvania Transportation Authority

(“SEPTA”) (collectively, “Plaintiffs”), by and through their undersigned counsel, bring claims

arising under the Securities Act of 1933 (the “Securities Act”), individually and on behalf of a

class of similarly situated persons and entities, except Defendants and their affiliates, who

purchased Education Management Corp. (“EDMC” or the “Company”) common stock in an

initial public offering completed on October 1, 2009 (the “IPO”). The Securities Act claims

allege strict liability and negligence causes of action. As alleged herein, the Securities Act

claims do not sound in fraud and are not based on any knowing or reckless misconduct by

Defendants (defined below) in connection with the IPO.

Separately, Plaintiffs, by and through their undersigned counsel, bring claims arising

under the Securities Exchange Act of 1934 (the “Exchange Act”), individually and on behalf of a

class of similarly situated persons and entities, except Defendants and their affiliates, who

purchased EDMC common stock in the IPO or on the open market from October 1, 2009 through

and including August 13, 2010 (the “Class Period”). To assist the Court in distinguishing the

allegations of fraud which underlie the Exchange Act claims, those allegations are set forth

separately below, following the Securities Act claims.

Plaintiffs allege the following upon personal knowledge as to themselves and their own

acts, and upon information and belief as to all other matters. Plaintiffs’ information and belief as

to allegations concerning matters other than themselves and their own acts is based upon an

investigation by their counsel which included, among other things: (i) review and analysis of

documents filed publicly by EDMC with the United States Securities and Exchange Commission

(the “SEC”); (ii) review and analysis of press releases, news articles, and other publicly-available

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records, including those issued by government bodies including the United States Government

Accountability Office (“GAO”), United States Department of Education (the “Department of

Education” or the “Department”), and the United States Senate Committee on Health, Education,

Labor, and Pensions (the “HELP Committee”) issued by or concerning EDMC and other

Defendants named herein; (iii) review and analysis of research reports issued by financial

analysts concerning EDMC’s securities and business; (iv) discussions with consulting experts;

(v) discussions with confidential witnesses; and (vi) review and analysis of certain pleadings

filed in connection with other litigation naming EDMC as a defendant or nominal defendant.

Plaintiffs believe that substantial additional evidentiary support for the allegations herein exists

and will continue to be revealed after Plaintiffs have a reasonable opportunity for discovery.

I. SUMMARY OF THE ACTION

1. This is a securities class action brought on behalf of: (1) purchasers of EDMC

common stock in the IPO for violations of the Securities Act; and (2) purchasers of EDMC

common stock during the Class Period for violations the Exchange Act.

2. EDMC is one of the largest for-profit post-secondary education providers in

North America. The Company offers campus-based instruction at 101 locations in 31 U.S. states

and Canada through its Art Institute, Argosy University, Brown Mackie Colleges, and South

University schools, and online instruction through the Art Institute, Argosy University, and

South University. As of October 2010, EDMC had 158,300 enrolled students. By comparison,

EDMC enrolls more students than the entire Pennsylvania State System of Higher Education,

and has an enrollment that is approximately twice as large as the Pennsylvania State University,

including the University Park campus and all of Penn State’s Commonwealth campuses. If

EDMC were a state university system, it would be among the 12 largest in the country.

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3. Prior to and throughout the Class Period, EDMC reported dramatic increases in

student enrollments. As of October 2008, EDMC had 110,800 enrolled students. A year later, as

of October 2009, EDMC reported having over 136,000 students, an increase of nearly 23%.

Between October 2009 and October 2010, EDMC saw a further increase in enrollments of

22,300, or nearly 16.4%.

4. EDMC’s primary source of revenues is tuition collected from students in

connection with their enrollment in the Company’s academic programs. The overwhelming

majority of these tuition payments come from students’ receipt of financial assistance from

federal student financial aid programs authorized by Title IV (“Title IV”) of the Higher

Education Act of 1965, as amended (the “HEA”). During the Class Period, EDMC derived

approximately 81% to 89% of its revenues from Title IV funds.

5. The Company’s business is highly regulated at the federal, state, and institutional

accrediting agency levels. To be eligible to receive Title IV funds, each EDMC institution must

comply with the standards set forth in the HEA, regulations promulgated thereunder by the

Department of Education, other regulations, and the requirements of the various accrediting

agencies that govern EDMC’s schools. Thus, during the Class Period, it was crucial to EDMC’s

ongoing and future business operations that the Company and its institutions maintain

compliance with the HEA and applicable federal regulations, and maintain institutions’

accreditation. Moreover, EDMC’s financial condition and stock price were critically dependent

upon EDMC institutions’ continued eligibility to secure revenues through Title IV federal

financial aid programs.

6. As alleged in greater detail herein, the HEA and Department of Education

regulations impose requirements on institutions seeking to participate in Title IV student

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financial aid programs. These requirements include, among other things: prohibitions on various

misleading or improper student recruiting practices; prohibitions on paying incentive

compensation to institutions’ admissions and financial aid personnel based on enrollments; a

requirement that for-profit institutions, except in certain circumstances, prepare students for

“gainful employment in a recognized occupation”; and that the institution maintain state

authorization and accreditation by a recognized accrediting commission. Institutions that fail to

comply with these and other requirements risk losing their ability to receive Title IV funds.

7. Prior to the Class Period, on June 1, 2006, EDMC was acquired in a $3.4 billion

leveraged buyout by a consortium of private equity investors including Goldman Sachs Capital

Partners, Providence Equity Partners, and Leeds Equity Partners (the “2006 Transaction”)

(Goldman Sachs Capital Partners, Providence Equity Partners, and Leeds Equity Partners are

referred to as EDMC’s “private equity shareholders” herein). EDMC, which had been publicly

traded before the 2006 Transaction, remained privately-held until the October 1, 2010 IPO.

After the IPO, affiliates of the Company’s private equity shareholders continued to own nearly

70% of EDMC’s outstanding common stock.

8. Throughout the Class Period, EDMC publicly touted its business and financial

performance, consistently increasing revenues and enrollment numbers, the quality of and

demand for its academic programs, internal controls, and the Company’s compliance with – and

ability to comply with – current and pending federal student financial aid regulations.

Defendants herein made such representations in the materials filed in connection with the IPO,

EDMC’s other public filings with the SEC, the Company’s press releases, and investor

conference calls with analysts. Those representations, however, were materially untrue and

misleading as they did not accurately represent EDMC’s past and current business and financial

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position, and failed to disclose material information to the investing public. Among Defendants’

inaccurate representations and omissions of material facts were that EDMC had been regularly

and systematically engaged in improper recruiting, enrollment, admissions and financial aid

practices prior to and throughout the Class Period that subjected the Company to risk of loss of

its ability to receive Title IV funds. As alleged in detail herein, EDMC’s undisclosed practices

included: improper recruiting and enrollment practices such as misleading prospective students

about tuition costs, academic program quality, graduation rates, graduate employment prospects

and expected graduate salaries, and aggressively targeting low-income and vulnerable

populations; using aggressive telemarketing practices in student recruiting; improperly

compensating admissions staff; engaging in improper practices in connection with students’ and

prospective students’ federal financial aid forms; inflating EDMC’s enrollment data; and

misrepresenting the success of EDMC’s graduates and the student loan repayment rates of its

graduates in connection with pending “gainful employment” regulations. These practices also

rendered EDMC in violation of then-governing federal regulations and requirements, thus

seriously jeopardizing its access to federal student aid – the vast majority of EDMC’s revenue.

Furthermore, the strong historic and continued growth reported by EDMC in connection with the

IPO and throughout the Class Period was grounded upon these improper and inherently

unsustainable practices, rendering EDMC’s reported financial performance materially untrue and

misleading.

9. The truth about EDMC’s improper recruiting and enrollment practices was

revealed to the stock market between August 3 and August 13, 2010. As alleged herein, these

revelations first began to come to light in connection with a GAO report entitled, “For-Profit

Colleges: Undercover Testing Finds Colleges Encouraged Fraud and Engaged in Questionable

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Marketing Practices” (the “GAO Report”). Next, on August 4, 2010, the Senate HELP

Committee held a hearing related to its investigation into for-profit education providers at which

it was revealed that EDMC employed systemic improper practices related to student recruiting,

enrollment, admissions, and financial aid. As detailed in the GAO Report and in HELP

Committee hearing testimony, for-profit colleges including EDMC systemically used improper

practices in an effort to consistently increase revenues through tuition and fees paid for by

federal student aid. The practices revealed included: misleading prospective students about

tuition costs, academic program quality, accreditation, graduation rates, and graduate

employment prospects and expected salaries, and aggressively targeting low-income and

vulnerable populations; using aggressive telephone marketing practices; engaging in improper

practices in connection with students’ and prospective students’ financial aid forms; and

improperly compensating admissions staff based on student enrollments.

10. In addition, an August 5, 2010 Business Week article, “Goldman Schools Students

on Debt,” published after markets had closed, revealed that EDMC had incurred substantial debt

to affiliates of its private equity shareholders in connection with the 2006 Transaction. In the

article, EDMC’s former CFO stated that EDMC’s massive debt to the Company’s private equity

shareholders “changed the culture of EDMC.” The article further describes that the burden of

EDMC’s debt to its private equity shareholders caused the Company to pursue aggressive growth

strategies that undermined its programs’ academic quality and led to EDMC’s use of improper

recruiting and enrollment practices. Prior to the IPO and throughout the Class Period, EDMC

had not disclosed that affiliates of its private equity shareholders had been substantial creditors of

the Company in connection with debt that financed the 2006 Transaction and remained on

EDMC’s books throughout the Class Period.

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11. Finally, on August 13, 2010, after the close of the market, the Department of

Education released data on federal student loan repayment rates for for-profit education

providers, including EDMC, in connection with pending “gainful employment” regulations. As

to EDMC, the Department of Education’s repayment data showed an overall repayment rate of

38% – well below what Defendants had suggested in their public statements during the Class

Period, and well below the 45% threshold necessary to maintain full Title IV eligibility under the

pending “gainful employment” regulations. EDMC’s low repayment rates confirmed that

EDMC was systemically employing improper recruiting and enrollment practices throughout the

Class Period.

12. When the truth regarding EDMC was revealed, EDMC’s stock price plummeted

from a Class Period high of $26.40 per share to $9.71 per share on August 16, 2010, the first

trading day after the close of the Class Period.

II. OVERVIEW OF THE SEPARATE CLAIMS

13. In Counts I through III, Plaintiffs assert claims for violations of Sections 11,

12(a)(2), and 15 of the Securities Act, 15 U.S.C. §§ 77k, 77l(a)(2), and 77o, against EDMC,

Defendants Todd S. Nelson, Edward H. West, and Randall J. Killeen, the Director Defendants

(as defined below), and the Underwriter Defendants (as defined below) (collectively, the

“Securities Act Defendants”) who are statutorily liable for the materially untrue and misleading

statements set forth in the Registration Statement. In connection with the Securities Act claims,

Plaintiffs specifically disclaim any allegations of fraud in connection with Defendants’

statements or omissions relating to the IPO, which sound in strict liability and negligence.

Moreover, the Securities Act claims are not based on any allegations of knowing or reckless

misconduct on the part of any Defendant in connection with the IPO.

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14. In Counts IV and V, Plaintiffs assert claims for violations of Sections 10(b) and

20(a) of the Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a) and the rules and regulations

promulgated thereunder, including Rule 1 0b-5, 17 C.F.R. § 240.1 0b-5 (“Rule 1 0b5”), against

Defendants EDMC, Nelson, and West (collectively, the “Exchange Act Defendants”).

III. JURISDICTION AND VENUE

15. The claims alleged herein arise under Sections 11, 12(a)(2) and 15 of the

Securities Act, 15 U.S.C. §§ 77k, 77l(a)(2) and 77o, and Sections 10(b) and 20(a) of the

Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and the rules and regulations of the SEC

promulgated thereunder, including Rule 1 0b-5, 17 C.F.R. § 240.1 0b-5.

16. This Court has jurisdiction over the subject matter of this action pursuant to

Section 22 of the Securities Act, 15 U.S.C. § 77v, Section 27 of the Exchange Act, 15 U.S.C. §

78aa, and 28 U.S.C. §§ 1331 and 1337.

17. Venue is proper in this District pursuant to Section 22 of the Securities Act, 15

U.S.C. § 77v, Section 27 of the Exchange Act, 15 U.S.C. § 78aa, and 28 U.S.C. § 1391(b).

EDMC is a Pennsylvania corporation with its headquarters located in Pittsburgh, Pennsylvania,

within this District.

18. In connection with the acts alleged in this complaint, Defendants, directly or

indirectly, used the means and instrumentalities of interstate commerce, including, but not

limited to, the United States mails, interstate telephone communications, and the facilities of the

national securities markets.

IV. PARTIES

A. Plaintiffs

19. Lead Plaintiff Oklahoma Police is a public pension fund established for the

benefit of current and retired Oklahoma police officers and employees of Oklahoma’s police

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departments. Oklahoma Police provides retirement benefits to thousands of members and their

beneficiaries and has over $1.5 billion in assets under management. As set forth in the

certification submitted in support of its motion for appointment as Lead Plaintiff, Oklahoma

Police purchased EDMC common stock on the open market during the Class Period and suffered

damages as a result of the misconduct alleged herein.

20. Plaintiff SEPTA is a regional transportation authority that operates various forms

of public transit serving Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties in

Pennsylvania. As set forth in the attached certification, Plaintiff SEPTA purchased EDMC

common stock in the IPO and on the open market during the Class Period and suffered damages

as a result of the misconduct alleged herein.

B. Defendants

1. Education Management Corporation

21. Defendant EDMC is a Pennsylvania corporation with a business headquarters

located in Pittsburgh, Pennsylvania. EDMC is one of the largest for-profit education providers in

the United States and offers campus-based and online instruction to students through its Art

Institute, Argosy University, Brown Mackie Colleges, and South University schools. EDMC

operates schools in 101 locations in 31 U.S. states and Canada that award undergraduate and

graduate degrees and certain specialized non-degree diplomas in a broad range of disciplines.

EDMC’s common stock is listed and publicly traded on the NASDAQ exchange under the ticker

symbol “EDMC.” EDMC is also the Registrant for the IPO.

2. Individual Defendants

22. Defendant Todd S. Nelson (“Nelson”) served as the Company’s Chief Executive

Officer (“CEO”) and Principal Executive Director at all relevant times hereto. The IPO was

made pursuant to a registration statement on Form S-1 (File No. 333-148259) filed with the

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Securities and Exchange Commission on December 21, 2007, and as amended on August 6,

2008, October 1, 2008, February 23, 2009, April 6, 2009, August 31, 2009 and September 21,

2009 (the “Registration Statement”). Nelson signed the Registration Statement filed in

connection with the IPO.

23. Defendant Edward H. West (“West”) served as the Company’s President and

Chief Financial Officer (“CFO”) at all relevant times hereto. West signed the Registration

Statement.

24. Defendant Randall J. Killeen (“Killeen”) served as Vice President, Controller, and

Chief Accounting Officer at all relevant times hereto, and signed the Registration Statement.

25. Defendants Nelson, West, and Killeen are collectively referred to as the “Officer

Defendants” herein.

26. Defendant John R. McKernan, Jr. (“McKernan”) served as Chairman of the Board

of Directors of the Company at all relevant times hereto, and signed the Registration Statement.

27. Defendant Adrian M. Jones (“Jones”) served as a director of the Company at all

relevant times hereto, and signed the Registration Statement. Jones also serves as a Managing

Director of Goldman, Sachs & Co., and was appointed to the EDMC board by Goldman Sachs

Capital Partners.

28. Defendant Jeffrey T. Leeds (“Leeds”) served as a director of the Company at all

relevant times hereto, and signed the Registration Statement. Leeds also serves as President and

Co-Founder of Leeds Capital Partners, and was appointed to the EDMC board by Leeds Capital

Partners.

29. Defendant Leo F. Mullin (“Mullin”) served as a director of the Company at all

relevant times hereto, and signed the Registration Statement. Mullin serves as consultant to

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Goldman Sachs Capital Partners, and was appointed to the EDMC board by Goldman Sachs

Capital Partners.

30. Defendant Paul J. Salem (“Salem”) served as a director of the Company at all

relevant times hereto, and signed the Registration Statement. Salem is a Senior Managing

Director and Co-Founder of Providence Equity Partners, and was appointed to the EDMC board

by Providence Equity Partners.

31. Defendant Peter O. Wilde (“Wilde”) served as a director of the Company at all

relevant times hereto, and signed the Registration Statement. Wilde is a Managing Director of

Providence Equity Partners and was appointed to the EDMC board by Providence Equity

Partners.

32. Defendants McKernan, Jones, Leeds, Mullin, Salem, and Wilde are collectively

referred to as the “Director Defendants” herein.

33. The Officer Defendants and the Director Defendants are collectively referred to as

the “Individual Defendants” herein.

3. Underwriter Defendants

34. Defendant Goldman, Sachs & Co. (“Goldman Sachs”) maintains offices at 85

Broad Street, New York, NY 10004. Goldman Sachs was an underwriter and joint bookrunner

for the IPO and served as a co-representative of all of the underwriters pursuant to the IPO.

Goldman Sachs sold 5,771,960 shares 1 of EDMC stock in the IPO.

35. Defendant J.P. Morgan Securities Inc. (“JP Morgan”) maintains offices at 270

Park Avenue, New York, NY 10017. JP Morgan was an underwriter joint bookrunner for the

1 As set forth herein, the number of shares that each Underwriter Defendant sold in the IPO doesnot include any sales from over-allotments. As specified in the Prospectus, the Underwriters hada 30-day option to purchase up to an additional 3,000,000 shares from EDMC to cover over-allotments. The Underwriters exercised that option.

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IPO and served as co-representative of all of the underwriters pursuant to the IPO. JP Morgan

sold 3,666,680 shares of EDMC stock in the IPO.

36. Defendant Merrill Lynch, Pierce Fenner & Smith Incorporated (“Merrill Lynch”)

maintains offices at 1251 Avenue of the Americas, Suite 24, New York, NY 10020. Merrill

Lynch was an underwriter and joint bookrunner for the IPO. Merrill Lynch sold 2,087,720

shares of EDMC stock in the IPO.

37. Defendant Barclays Capital Inc. (“Barclays”) maintains offices at 200 Park

Avenue, New York, NY 10166. Barclays was an underwriter and joint bookrunner for the IPO.

Barclay’s sold 2,087,720 shares of EDMC stock in the IPO.

38. Defendant Credit Suisse Securities (USA) LLC (“Credit Suisse”) maintains

offices at 11 Madison Avenue, New York, NY 10010. Credit Suisse was an underwriter and

joint bookrunner for the IPO. Credit Suisse sold 2,087,720 shares of EDMC stock in the IPO.

39. Defendant Morgan Stanley & Co. Incorporated (“Morgan Stanley”) maintains

offices at 1585 Broadway, New York, NY 10036. Morgan Stanley was an underwriter and joint

bookrunner for the IPO. Morgan Stanley sold 2,087,720 shares of EDMC stock in the IPO.

40. Defendant Robert W. Baird & Co. Incorporated (“Baird”) maintains offices at 777

East Wisconsin Avenue, Milwaukee, WI 53202. Baird was an underwriter and co-manager for

the IPO. Baird sold 442,100 shares of EDMC stock in the IPO.

41. Defendant William Blair & Company, L.L.C. (“Blair”) maintains offices at

222 West Adams Street, Chicago, IL 60606. Blair was an underwriter and co-manager for the

IPO. Blair sold 442,100 shares of EDMC stock in the IPO.

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42. Defendant BMO Capital Markets Corp. (“BMO”) maintains offices at 3 Times

Square, New York, NY 10036. BMO was an underwriter and co-manager for the IPO. BMO

sold 442,100 shares of EDMC stock in the IPO.

43. Defendant Piper Jaffray & Co. (“Piper Jaffray”) maintains offices at Suite 800,

800 Nicollet Mall, Minneapolis, MN 55402. Piper Jaffray was an underwriter and co-manager

for the IPO. Piper Jaffray sold 442,100 shares of EDMC stock in the IPO.

44. Defendant Barrington Research Associates (“Barrington”) maintains offices at

161 N. Clark Street, Suite 2950, Chicago, IL 60601. Barrington was an underwriter and co-

manager for the IPO. Barrington sold 147,360 shares of EDMC stock in the IPO.

45. Defendant Signal Hill Capital Group, LLC (“Signal Hill”) maintains offices at

300 East Lombard Street, Baltimore, MD 21202. Signal Hill was an underwriter and co-

manager for the IPO. Signal Hill sold 147,360 shares of EDMC stock in the IPO.

46. Defendant Stifel, Nicolaus & Company, Incorporated (“Stifel Nicolaus”)

maintains offices at 501 North Broadway, One Financial Plaza, St. Louis, MO 63102. Stifel

Nicolaus was an underwriter and co-manager for the IPO. Stifel Nicolaus sold 147,360 shares of

EDMC stock in the IPO.

47. Defendants Goldman Sachs, J.P. Morgan, Merrill Lynch, Barclays, Credit Suisse,

Morgan Stanley, Baird, Blair, BMO, Piper Jaffray, Barrington, Signal Hill, and Stifel Nicolaus

are collectively referred to as the “Underwriter Defendants” herein.

V. REGULATORY BACKGROUND

48. EDMC purportedly offers associate’s, bachelor’s, master’s, and doctoral degree

programs and non-degree diploma programs to more than 158,300 students at 101 locations in 31

states and Canada and through its online programs, as of October, 2010. As of September 2010,

EDMC’s 101 locations included 19 Argosy University locations, 25 Brown Mackie College

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locations, 8 South University locations, 48 Art Institute locations, and the Western State

University College of Law. EDMC’s online education is offered through Argosy University,

South University and the Art Institutes. The Company claims that each of its United States

institutions is accredited by an accrediting commission recognized by the Department of

Education. During the Class Period, EDMC derived approximately 81% to 89% of its revenues

from federal student financial aid programs under Title IV.

A. Eligibility and Participation in Title IV Programs

49. EDMC’s financial performance is crucially dependent on the revenue it receives

through federal student aid, its eligibility to participate in Title IV Programs, and its ability to

maintain accreditation at its various institutions.

50. To participate in Title IV Programs, EDMC institutions must each comply with

the standards set forth in the HEA and the regulations promulgated thereunder by the Department

of Education. Among other things, the HEA and the regulations promulgated thereunder

prohibit institutions from making misrepresentations, defined as “any false, erroneous or

misleading statement,” “regarding the nature of its educational program, its financial charges or

the employability of its graduates” to “a student enrolled at the institution, to any prospective

student, to the family of an enrolled or prospective student, or to the Secretary.” 34 C.F.R. §

668.71. Further, institutions are required to provide and “accurately describe (i) the cost of

attending the institution, including (ii) tuition and fees, (iii) books and supplies, (iv) estimates of

typical student room and board costs or typical commuting costs, and (v) any additional cost of

the program in which the student is enrolled or expresses a specific interest” to prospective and

enrolled students. Title IV § 485(a).

51. In order to further discourage such misrepresentations in connection with

recruiting, admissions and financial aid, the HEA prohibits institutions from providing “any

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commission, bonus, or other incentive payment based directly or indirectly on success in

securing enrollments or financial aid to any persons or entities engaged in any student recruiting

or admission activities or in making decisions regarding the award of student financial

assistance.” Title IV § 487(a). Twelve “safe harbors” were enacted in 2002, effective July,

2003, to provide guidance as to what forms of compensation would be considered a violation of

this ban. One such “safe harbor” provides that an institution may make up to two adjustments

(upward or downward) to a covered employee’s annual salary or fixed hourly wage rate within

any 12-month period without the adjustment being considered an incentive payment, provided

that no adjustment is based solely on the number of students recruited, admitted, enrolled, or

awarded financial aid. 34 C.F.R. 668.14(b)(22). The regulatory “safe harbors” do not eliminate

the statutory prohibition against compensating admissions, recruiting or financial aid staff solely

based on the number of students enrolled or receiving financial aid.

52. The HEA further requires that programs at for-profit institutions, other than those

clearly designated as “liberal arts,” and other vocational programs not designed to lead to a

degree, must prepare students for “gainful employment in a recognized occupation” to be eligible

for Title IV federal student aid.

53. In addition, state authorization and accreditation by an accrediting commission

recognized by the Department of Education are also required for an institution to become and

remain eligible to participate in Title IV programs. As such, EDMC is also subject to extensive

state regulations and requirements of accrediting agencies, including the Accrediting Council for

Independent Colleges and Schools (“ACICS”), Accrediting Commission of Career Schools and

Colleges (“ACCSC”), Commission on Colleges of the Southern Association of Colleges and

Schools, Higher Learning Commission of the North Central Association, Middle States

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Association of Colleges & Schools of the Commission on Higher Education, Northwest

Commission on Colleges and Universities, and the Commission on Colleges of the Western

Association of Schools and Colleges. The requirements of each of the accrediting agencies are

set forth in numerous documents and include, among other requirements, that:

• “Advertising, recruiting, and admissions information adequately and accurately representthe programs, requirements, and services available to students.”

• “An institution may not delegate without supervision these [recruiting] activities toanyone whose economic incentives are to recruit prospects through means that areunethical or subject to public criticism or to admit ill-prepared applicants.”

• “[r]ecruiting shall be ethical and compatible with the educational objectives of theinstitution. ... The following minimums apply: (a) An institution shall ensure that anyperson or entity engaged in admissions or recruitment activities on its behalf iscommunicating current and accurate information regarding courses and programs,services, tuition, terms, and operating policies.”

• Schools are required “to describe themselves to prospective students fully and accuratelyand to follow practices that permit prospective students to make informed and consideredenrollment decisions without undue pressure. The school’s recruitment efforts mustattract students who are qualified and likely to complete and benefit from the trainingprovided by the school and not simply obtain enrollments ... Each school observesethical practices and procedures in the recruitment of its students.”

• “No misrepresentations should be made in student recruitment, including ... b.misrepresenting job placement and employment opportunities for graduates; c.misrepresenting program costs; d. misrepresenting abilities required to complete intendedprogram.”

54. If the Department of Education or another regulatory agency determines that an

institution improperly disbursed Title IV program funds or violated a provision of the HEA or

the implementing regulations, that institution could be required to repay such funds to the

Department or the appropriate state agency or lender and could be assessed a substantial fine.

Violations of Title IV program requirements could also subject EDMC to other civil and criminal

penalties, including the limitation, suspension or termination of the participation of affected

institutions in Title IV programs, and, thus, threatening its receipt of federal student aid funds.

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B. Negotiated Rulemaking

55. On May 26, 2009, the Department of Education published a Federal Register

Notice announcing its intent to establish a negotiated rulemaking committee to develop proposed

regulations to maintain or improve program integrity in federal student aid programs. The

rulemaking committee was to consider issues including, “incentive compensation paid by

institutions to persons or entities engaged in student recruiting or admission activities” and

“gainful employment in a recognized occupation.” The notice also announced a series of three

regional public hearings at which interested parties could comment on the topics suggested by

the Department and suggest additional topics for consideration for action by the negotiating

committees. The notice invited parties to comment and submit topics for consideration in

writing.

56. On May 29, 2009, Robert Shireman, the Deputy Undersecretary for the

Department of Education, held a conference call regarding the negotiated rulemaking and

reported that the Department was considering reversing the 2002 “safe harbors” related to the

incentive compensation ban and adding standards to the rules requiring that certain programs,

including those at proprietary colleges, demonstrate that graduates are finding “gainful

employment” in their field.

57. On September 9, 2009, the Department of Education published a Federal Register

Notice announcing the establishment of two negotiating rulemaking committees, Team I:

Program Integrity Issues, and Team II: Foreign School Issues. As to Team I: Program Integrity

Issues, “gainful employment in a recognized occupation” and “incentive compensation” were

listed as topics to be addressed. The September 9, 2009 notice further stated that the Department

anticipated that the negotiated rulemaking sessions would begin in late 2009, with each

committee meeting for three sessions of approximately five days at roughly monthly intervals.

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The final dates of the negotiated rulemaking sessions on Program Integrity were November 2-6,

2009, December 7-11, 2009, and January 25-29, 2010.

58. During the negotiated rulemaking sessions’ consideration of “gainful

employment,” the Department of Education focused on developing certain thresholds based on

loan repayment rates and debt to income ratios of former students in a given program to

demonstrate “gainful employment.” For a program to be eligible for federal student aid, it would

have to meet one of those two thresholds. By February, 2010 and throughout most of the first

half of 2010, the Department was considering requiring programs to demonstrate a 90%

repayment rate on Title IV loans among a program’s graduates to satisfy the “gainful

employment” requirement via the loan repayment rate threshold. A loan would not be

considered in repayment if it was delinquent, in default, in deferment, or in forbearance.

59. As to incentive compensation, prior to the start of the negotiated rulemaking

sessions, the Department of Education recommended and continued to recommend the

elimination of the “safe harbors” related to the ban on incentive based compensation for

admissions and financial aid personnel.

60. On June 16, 2010, the Department of Education issued a Notice of Proposed

Rulemaking regarding, among other things, incentive based compensation. The proposed

regulations, which were the result of the negotiated rulemaking, remove all of the “safe harbor”

provisions relating to the ban on incentive based compensation for admissions and financial aid

personnel.

61. On July 23, 2010, the Department of Education issued a Notice of Proposed

Rulemaking and released its proposed rules regarding the “gainful employment” requirement.

Under the proposed regulations, which also resulted from the negotiated rulemaking, programs

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will be fully eligible to receive Title IV funds if at least 45% of the principal of the loans of

former students is being paid down, or if its graduates have debt to income ratios of less than

20% of discretionary income or 8% of total income. A program will become ineligible for Title

IV funds if less than 35% of the principal of the loans of former students is being paid down, or

if its graduates have debt to income ratios above 30% of discretionary income or 12% of total

income. Further, programs that fall between these eligibility measures will be restricted.

Restricted programs will have enrollment growth limits, be required to demonstrate employer

support for the program, and must warn prospective and current students of high debt levels.

VI. PLAINTIFFS’ INVESTIGATION AND CONFIDENTIAL SOURCES

62. As noted herein, Plaintiffs’ allegations are based upon the investigation of Lead

Counsel, which included, among other things: review of EDMC’s public filings with the SEC;

EDMC press releases; transcripts of EDMC’s investor conference calls; publicly available

trading information; publicly available materials from Congressional and other federal

government sources, including those related to investigations of for-profit colleges including

EDMC; articles in the general and financial press; and investment analyst reports.

A. Description of Confidential Sources

63. Plaintiffs’ allegations are also based upon information provided by former

employees of EDMC with knowledge of the Company’s business practices including: student

recruiting and enrollment practices; federal financial aid practices; recruiting and compensation

of Assistant Directors of Admissions (“ADAs”) responsible for student recruitment and

enrollment; financial forecasting; and internal controls. These former employees include, but are

not limited to, the following:

Confidential Witness 1 was a Senior Admissions Representative (“SAR”) forSouth University’s online division from August 2008 through July 2010. CW 1

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recalled that compensation for EDMC’s admissions representatives wasdetermined “solely based on how many students you ran across the finish line” toenrollment. CW1 stated that EDMC claimed to use a “compensation matrix” toset salary levels for admissions staff that purported to take into account qualitativefactors other than the number of enrollments. In reality, however, CW 1 recalledthat enrollment volume (measured by a “new student point range”) was the soleconsideration used to determine compensation levels for admissionsrepresentatives, or ADAs. ADAs had increasing enrollment quotas based on thelength of their tenure at EDMC and their prior enrollment volume. According toCW1, EDMC evaluated each ADA every six months. Following those reviews,EDMC would adjust ADAs’ salaries based on whether they had met theirenrollment quotas. Top performers would be required to meet increasingly higherproduction targets, including double-digit enrollments for the next 5 1/2 weekenrollment session. CW1 recalled having received a $15,000 raise after just sixmonths on the job due to exceeding enrollment quotas. ADAs who failed to meettheir quotas saw their salaries cut. CW1, who was aware that the “safe harbor”rules precluded EDMC from paying its admissions staff based on enrollments,believed that EDMC’s practice of cutting ADA salaries based on reductions inenrollments violated those rules. According to CW1: “[I]f you do not make yourgoals, the ADA would get a pay deduction. This is also illegal in academics. Ifwe cannot work on commission, then we cannot have pay deductions either.”CW 1 also recalled that sometime before Thanksgiving 2009, EDMC held acompany-wide meeting at EDMC Online Higher Education’s offices to announceseveral changes to the Company’s job expectations for ADAs. These changesaffected ADAs’ recruitment practices and involvement in the financial aidprocess. CW1 recalls that at the company-wide meeting, ADAs were brought intoa conference room in groups of approximately 100 to hear about those changes,and that EDMC Online Higher Education CEO Stephen J. Weiss (“Weiss”) andPresident John R. Kline (“Kline”) attended the meetings. CW1 stated that Weissinitiated the changes and Kline implemented them. The changes, which CW1recalled having made ADAs’ jobs much more difficult, included increasing theamount and duration of required telephone contacts with prospective students to150-200 calls with at least 3-4 hours of “talk time” per day. These newrequirements, which were added onto the existing enrollment quota system,forced CW 1 to work overtime. CW 1 recalled that EDMC’s new requirementsalso instructed ADAs to get more intimately involved in helping students obtainfinancial aid, something that was rarely done before. CW1 recalled that Weissand Kline justified the ADAs’ new role in the financial aid process by stating thatit made sense given that ADAs had already built strong relationships with thestudents. According to CW1, the new system required ADAs to obtain copies ofstudents’ tax returns, birth dates, social security numbers, and information onstudents’ living arrangements. CW 1 also recalled hearing about numerous ADAswho engaged in inappropriate recruiting practices and misrepresentations aboutEDMC’s online programs and financial aid. These included: misrepresentationsabout students’ homework obligations and need to buy books or course materials;encouragement of students to cheat on required college placement exams;

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promises to students that they would receive financial aid and not have to pay itback, including telling students they could default on student loans and write themoff; and representations to graduate-level students that they were eligible for Pellgrants, which they were not. According to CW1, these and othermisrepresentations were made to students over the telephone despite the fact thatEDMC’s online division had a compliance division that monitored ADAs’telephone calls: “[compliance] didn’t care as long as they got students in. It wasall about the [compensation] matrix.”

Confidential Witness 2 served as an ADA and a Director of Admissions forEDMC’s online division from March 2006 through December 2009. CW2recalled that EDMC’s compensation system was structured such that anadmissions representative received points for each student they enrolled. At theend of each recruiting period, “these points were tallied up and this determinedyour salary.” CW2 recalled that the compensation system remained essentiallythe same throughout CW2’s tenure at EDMC. According to CW2, there was a lotof pressure on admissions staff to meet enrollment numbers: “the waycompensation was structured at EDMC put a lot of pressure on admissions reps torecruit as many students as they could.” “We were compensated based on howmany students you start.” CW2 left EDMC due to the fact that the Company puttoo much emphasis on recruiting a large number of students, rather than recruitingquality students. CW2 understood that “there were issues with recruitment” atEDMC involving inappropriate practices. CW2 described EDMC’s onlinedivision as a “churn and burn” environment where there was a high turnoveramong admissions staff.

Confidential Witness 3 was an ADA at EDMC from October 2006 throughOctober 2009. CW3 described a very “cutthroat” and “competitive” environmentat EDMC admissions, where the average tenure of an ADA was approximatelythree months. During CW3’s time at EDMC, the Company instituted atelemarketer-style “dialer system” that automatically dialed prospective studentsfor ADAs to solicit over the phone. CW3 described this as being a “big brother”system that contributed to the cutthroat atmosphere. CW3 was aware of – and notsurprised by – the GAO’s findings of deceptive recruiting practices at EDMC.CW3 acknowledged that EDMC “knew all the tricks” to get students enrolled.CW3 described the pressure on ADAs to enroll as many students as possible, “[i]fa student said they weren’t ready to start, it was our job to talk them into it,”including people who “would never be able to pay for their education.” CW3further recalled that students would use their federal student loan money forthings other than tuition. “People would call in to ask, ‘what’s my Stafford loanmoney? I need to pay my rent.’” In addition, CW3 recalled that EDMCdramatically increased its tuition from 2006 through 2009, from $292 per credit in2006 to $437 per credit in 2009. CW3 also recalls that EDMC compensatedADAs based on enrollments, with additional purported review criteria such asproduct knowledge and customer service being “just fluff.”

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Confidential Witness 4 was an ADA for South University’s online division fromAugust 2008 through April 2010. When CW4 was hired, South University’sDirector of Online Admissions, Bret Segar (“Segar”), explained to CW4 thatADAs were not paid on commission because commissions were against the law.According to CW4, Segar said, “I can’t pay you on commission but we havesomething called a matrix.” Segar then explained how EDMC used the “matrix”system to get around the restriction on paying commissions. The matrix wasbased on how many people ADAs started into EDMC’s online programs for eachrecruitment period. CW4 began at EDMC in August 2008 earning a salary of$29,000 per year, and was earning $53,500 as of April 2010. CW4 believed thatEDMC’s compensation practices violated Title IV funding laws because ADAsalaries were based on numbers of enrollments. CW4 recalled having been underincreasing enrollment quotas during each successive recruitment period. CW4’squotas started at 4 students per period and were raised from 6, to 9, to 11 studentsper three-month period. By the time CW4 left EDMC, CW4 had to recruit 30new students into EDMC’s online programs every three months. If CW4 failed tomeet the increasing quotas, there was a risk of a salary reduction: “I had thepotential of losing 15% of my salary if I didn’t meet the performance goals.” Ifan ADA missed his or her quota in three consecutive recruiting periods, he or shewould be terminated. According to CW4, EDMC used “heavy sales recruitingtactics” to get students to enroll in online courses. CW4 recalled: “I wasencouraged to not tell people what the cost of the school was in actuality. I wastold to say the price per credit hour and let them do the math.” CW4 furtherrecalled: “[i]t was encouraged that by any means you can, get a student into theschool. . . . The big thing at EDMC was to get to know your clients and befriendthem.” CW4 was aware of EDMC keeping statistics on student withdrawalsbecause certain involuntary withdrawals (due to a lack of financial aid or poorgrades) would negatively affect CW4’s enrollment quota. CW4 recalled thatwithdrawal rates of EDMC’s online students was around 40%, as “[a] lot ofstudents found out that the online environment didn’t work out for them.”

Confidential Witness 5 was Manager of Human Resources for EDMC’s onlinedivision from May 2007 through January 2010. CW5 recalled that in the two anda half years that CW5 was at EDMC, turnover in the online division was over100%, and CW5 had to terminate over 1,000 employees in CW5’s first year.CW5 “had issues” with EDMC’s recruiting practices due to “constantly” fieldingcomplaints from ADAs who felt uncomfortable with enrolling certain students,and who were under pressure from Directors of Admissions who told the ADAsto get prospective students enrolled in EDMC’s programs regardless. Accordingto CW5, “[e]mployees came to me all the time with these complaints – especiallyif they were going to be disciplined for not making their numbers.” CW5believed that EDMC’s enrollment quotas were “very aggressive” and recalled thatthe quotas were tied to ADAs’ prior performance and salaries, rather than theirtenure with the Company. CW5 recalled that EDMC management at the Directorof Admissions and Vice President of Admissions levels for each online schoolkept close tabs on each ADA’s performance, and that poor performers wereplaced on a “performance improvement plan” intended to increase their

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enrollment numbers. Every week, EDMC monitored the enrollment numbers foreach ADA, and CW5 recalled attending weekly meetings with Kate Kelliher, theAdmissions Director for the Art Institute and interim VP for online admissions,and other VPs for admissions at EDMC, at which ADA enrollment numbers werediscussed. During those meetings, it was decided which ADAs would bedisciplined or fired based on enrollments. As CW5 described these decisions,“[i]t was all about the numbers. CW5 recalled that Weiss knew about the weeklymeetings and the Company’s focus on enrollment numbers. CW5 described howADAs were subject to a review every six months during which they wouldreceive either a raise (a “performance increase”) or a salary cut based on EDMC’scompensation matrix. Performance increases were uncapped, although salary cutswere limited to no more than 15%. CW5 recalled that one ADA who startedmaking between $30,000-$40,000 per year received a performance increase aftersix months with EDMC that raised his salary to $90,000 per year. In addition,CW5 recalled that EDMC’s focus on “enrolling anybody it could” createdproblems for several reasons. First, CW5 recalled serving on a committee toreview requests from students with special needs to see if those students couldreceive assistance such as special computers. During this review, CW5 reviewedstudents’ prior transcripts and recalled finding: “[a] lot of these students barelypassed high school. These people would never pass in this college environment.”Regardless, those students were enrolled in EDMC programs because “a lot of theadmissions reps were enrolling people just to enroll them.” Second, CW5recalled that EDMC’s financial aid group was “running into problems” becauseADAs “would enroll everyone and everybody.” CW5 understood that when aprospective student did not get financial aid, admissions staff would complain andDirectors of Admissions would “intervene” when this happened.

Confidential Witness 6 served as Associate Director of the Finance Department atSouth University’s Tampa, Florida campus from September 2007 through April2010. CW6 believes that South University’s Tampa campus is not in compliancewith federal student loan program requirements. During CW6’s tenure at SouthUniversity, enrollment in Tampa had swelled from 122 students in 2007 to over1,000 in 2010. CW6 described how the Tampa office was not sufficiently staffedto handle this increased volume, stating: “I was working way too many hours.Nobody was listening. I was more qualified than my director, who didn’t haveany financial aid or funding experience.” CW6 believed that EDMC’scompliance program was insufficient, stating that EDMC “didn’t really knowwhat they were doing” in terms of compliance. CW6 also described havingdiscovered that, in October 2009, several graduate students receiving direct loansfrom the Department of Education were receiving $6,000 above the typicalamount of aid awarded to students in the program. CW6 brought these over-awards to McLaughlin’s attention and told him, “I don’t think this meets thecriteria – we’re over-awarding the students.” McLaughlin ignored CW6’sfinding, and the over-awards continued through CW6’s departure from theCompany in April 2010. CW6 is aware from contacts with current employees atSouth University that the government eventually discovered these over-awardsand required EDMC to return $250,000 in over-awarded grants.

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Confidential Witness 7 worked as a Director of Staffing at EDMC’s onlinedivision from December 2007 through May 2008. In CW7’s capacity at EDMC,CW7 was responsible for recruiting ADAs and conducted exit interviews withADAs leaving EDMC’s online division. According to CW7, EDMC aggressivelysought to expand the number of ADAs at the Company, requiring CW7 to hirefrom 50-60 new ADAs per week. CW7 recalled that these hiring targets were setout in an Excel spreadsheet with “formulas that directly tied the number of ADAswith productivity and for EDMC to make its earnings numbers.” CW7 recallshaving to prepare, every Monday by noon, several Excel spreadsheets called“Hire and Fire Reports,” “Recruitment Matrix,” and the “Weekly Staffing Report”that tracked how many ADAs were hired, fired, or quit each week, as well as theweekly recruiting goals for ADAs. This data was used to project how manyADAs were needed to keep up the volume of student enrollments and earnings.All of this information was uploaded to EDMC’s computer system through a“Recruitment Dashboard” to which EDMC’s senior-level managers had access.CW7’s reports were also sent to Weiss, EDMC Online’s President, EDMC’sDirector of Human Resources, and the Vice Presidents of each of EDMC’s onlinebrands for discussion on conference calls that were held every Monday at noon.CW7 recalled that there was “unusually high” turnover among ADAs, and thatthere was tremendous and unusual attention paid by Weiss and other managers todetail about individual ADA hiring and salary decisions. CW7 never recallshearing complaints from management about high ADA turnover, stating: “[t]herewas zero accountability to keep these people [the ADAs]. It was all aboutvolume.” CW7 also conducted exit interviews of ADAs and recalled hearingcomplaints from departing employees who felt that there was a disconnectbetween the job they were hired to do and what they were actually being asked todo. CW7 recalled hearing from ADAs that, “[t]here were a lot of people whowere asked to do things [that were] unethical.” CW7 described how ADAscomplained of being asked to provide misinformation to students about financialaid so that the ADAs could meet their quotas. CW7 also described ADAs havingcomplained: “I can’t do this to people. [Students] don’t know what they’regetting into. It’s too expensive.” CW7 concurred, calling EDMC a “diplomamill” and stating, “[i]t was a disgrace what they charged people to get what wasessentially a valueless degree.” According to CW7, despite the pressure to hirenew ADAs, EDMC would not allow its recruiters to work with EDMC’s careerservices staff to hire prospective ADAs from among the graduates of EDMCinstitutions. CW7 recalled, “They were adamant that I not work with careerservices [at EDMC schools].”

Confidential Witness 8 was a senior financial analyst at EDMC from 2007 untilapproximately March 2009 whose responsibilities included preparing financialreports for EDMC’s online division. CW8 dealt with EDMC online’s numbers“on a daily basis,” and understood EDMC’s student recruiting goals and thecompany’s related financial targets. CW8 believed: “[t]heir goals for recruitmentwere extremely over aggressive. Their whole budget and objectives were well outof reach.” According to CW8, EDMC’s plan was to double the size of the onlinedivision “practically every year” with the use of “aggressive marketing and

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aggressive sales people . . . to go after as many students as you can.” EDMCmanagement kept a close eye on enrollment, and CW8 understood thatmanagement knew “hour by hour” exactly where the online division was in termsof enrollment, with enrollment figures updated manually and captured in acomputer system that was “kept very current.” As an example, CW8 recalledbeing in a meeting with senior management where at 3:00 p.m. there was anannouncement that EDMC had enrolled 87 new students in a certain onlineprogram. CW8 recalled believing that EDMC’s system for reporting enrollmentdata was not subject to internal controls that were “true and accurate.” Accordingto CW8, EDMC counted students as “enrolled” when they had been enrolledduring the previous semester but had not decided to enroll in any classes in thecurrent semester. CW8 recalled that such students may have indicated that theywould “probably” enroll in the next term, but had not actually committed to do so.CW8 believed that such students should not have been counted as enrolled as theywere not “technically” enrolled in the current semester.

Confidential Witness 9 was a Vice President for Marketing & AdmissionsOperations at EDMC’s corporate headquarters from 1988 until April 2010. CW9was responsible for managing EDMC’s marketing and admissions budget,planning, and analysis. CW9 recalled that after EDMC was acquired by privateequity investors including Providence Equity Partners and Goldman Sachs,however, EDMC’s focus changed as the “new group managed it short term” toconsider its “financial interests.” Under EDMC’s new management, includingDefendants Nelson and West, and Senior VP of Marketing and AdmissionsAnthony DiGiovanni, Chief Information Officer Robert Carroll, and Senior VicePresident of Student Recruitment/Enrollment Vijay Shah, achieving growth byaggressively increasing enrollments became a major goal for the Company. CW9recalled that EDMC’s new senior management, including Defendants Nelson andWest, criticized EDMC’s historical business practices, including that EDMC had“not grown fast enough,” and was “too cautious” and “not aggressive enough.”CW9 had been historically involved with the coordination of Marketing &Admissions’ budgeting, forecasting, and strategy, including “coming up with [the]numbers” for plans and forecasts based on the Company’s prior performance.When new management came in after the 2006 Transaction, they took thisprocess over. According to CW9, the reports and plans prepared by newmanagement “did not make sense” and used numbers that “appeared to be overlyaggressive” based on CW9’s experience of EDMC’s historical budgets andperformance. Much of these aggressive forecasts concerned EDMC’s increasingenrollment of students in online programs through a new, “large organization” foronline recruiting based in Phoenix and Pittsburgh.

Confidential Witness 10 served as Vice President of Human Resources atEDMC’s online division from August 2006 through February 2009. CW 10 wasfamiliar with EDMC’s policies with respect to the compensation of ADAs.According to CW10, “all pay raises for admissions reps were approved bycorporate headquarters.” CW 10 also recalled that all of the training materials

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used in new employee training programs were developed by EDMC Corporateheadquarters.

Confidential Witness 11 was Vice President for Admissions at EDMC’s onlinedivision from 2002 through 2007. CW 11 had previously worked in admissions atthe Apollo Group’s University of Phoenix during the same time that DefendantNelson served as Apollo Group’s CEO, and CW 11 knew Defendant Nelson fromtheir time at Apollo Group. According to CW 11, Apollo Group “really pushedthe envelope” in terms of admissions compliance and ethics. With respect toadmissions staff compensation for EDMC’s online programs, CW 11 recalled thatsalaries for admissions representatives were “determined based on a look at howmany new students they enrolled.” CW 11 recalled that EDMC’s compensationplan was developed by the Vice President of Enrollment, Vijay Shah, and “acouncil of about seven to ten high-level executives” at the EDMC Corporatelevel. After the compensation plan was developed, CW 11 recalled that it wasreviewed by EDMC’s CEO and President. CW1 1 does not recall DefendantNelson having made any changes to the compensation system after reviewing it.CW 11 further recalls EDMC having had a “dashboard” system that showed thetotal number of student enrollments, retentions, and EDMC’s enrollment targets.

Confidential Witness 12 worked from May 2007 until June 2008 as a StudentFinance Assistant in Argosy University’s Santa Ana, California, Financial Aidoffice. CW 12 recalled that students were recruited in the following manner: “Theway it works is the admission department gets people to come in. They tell themthat there’s tons of financial aid available. The admissions reps are driven to getas many students as possible. If they don’t get them in, they get fired. Theadmissions reps tell [prospective students] exactly what they want to hear.”CW 12 recalled that EDMC’s admissions staff were incentivized based on thenumber of students they enrolled, noting, “[s]ome enrollment people were makingmore than their bosses because they made their quotas. Some made six-figuresalaries.” In addition, according to CW12, EDMC had “no guidelines” for tellingstudents about whether they could afford EDMC’s programs or whether theywould ever be able to pay back their loans.

Confidential Witness 13 was a college recruiter for EDMC’s Art Institutes,serving in both the southeastern region and as a national representative from 1999through 2004. CW 13, who left EDMC for personal reasons, maintained close,personal contact with several former co-workers at EDMC. According to CW 13,starting in 2006 after EDMC went through a change of management, CW 13began to hear complaints from people still employed by EDMC. These EDMCemployees told CW 13 that the Company was changing and that new managementconsisted of personnel from ITT Tech and DeVry, institutions that CW13 knewhad engaged in unethical recruiting from having competed against thosecompanies to attract students. CW 13 recalled that DeVry was “desperate to getstudents and would say anything” to get enrollments, including telling studentsthey could expect salaries and job positions that were not true. CW13 recallshearing that EDMC hired several new employees from those institutions and that

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those new employees recruited the “same way they always did.” According toCW 13, EDMC hired a senior recruitment executive from DeVry who led a“radical shift in recruitment policy” at EDMC that resulted in the Art Instituteshaving increasing enrollment that made it “no longer exclusive” as an institution.CW13 further recalled agreeing with the assessments of CW13’s contacts withinthe Company, that “EDMC was going from caviar to McDonald’s” as a result ofthe new emphasis on increasing enrollments.

Confidential Witness 14 served as a recruiting agent for EDMC in Colorado from2007 through 2008. CW 14 recalled that recruiters were given a script by EDMCto use when speaking with prospective students over the telephone and were alsoadvised to tell prospective students that they would get “good paying jobs” upongraduation. According to CW14, EDMC recruiters were instructed to “make theprogram sound like it is more effective than it is” and “make it sound exciting.”If students were interested in an EDMC program, they were advised to contact theadmissions department at the particular school. CW 14 recalled being harassed atleast once or twice a week by supervisors for not having made enough sales, andfurther recalled that other recruiters were similarly pressured to sell.

Confidential Witness 15 worked as an ADA at Brown Mackie College in Arizonafrom December 7, 2009 through July 2010. CW15 described the aggressive,high-pressure sales tactics that were expected of ADAs. According to CW15,“we would badger [prospective students] on the phone, to get them to come in foran appointment.” CW15 recalled that ADAs “were told [by theirsupervisors] ‘make [prospective students] feel the pain, make them feel the pain.’”CW 15 further recalled receiving e-mails and attending a week-long training inCincinnati on “making people feel the pain.” As part of this pressure tactic,CW 15 recalled using details about vulnerable prospective students’ personal livesto pressure them into enrolling. For example, CW15 described a prospectivestudent with a child and AIDS that was told, “now more than ever you need aneducation, for what time you have left here, get a job where they might have lifeinsurance, get a job where you can get health insurance.” In addition, ADAs wererequired to find five personally developed referrals (“PDRs”) each week, withCW 15 recalling that “each week, to keep our job, we were encouraged on ourlunch hours to go to fast food places, dead end jobs [and tell people], I can getyou into a career.” If a student changed his or her mind about enrolling, ADAstold the student that they had to come to the office to sign paperwork. Accordingto CW15, there was no paperwork to sign. Rather, this was a tactic to get thestudent in the door for additional pressure from a senior director of admissions.CW 15 also recalled that EDMC provided training to ADAs to encourage them toanswer prospective students’ questions evasively when the “real answer” woulddiscourage enrollment. For example, CW 15 stated that if ADAs were asked ifBrown Mackie’s credits would transfer to another institution, “the real answer is‘no college will take our credits,’” but instead, “what we would say is, ‘thiscourse is designed for you to enter the job market,’ . . . ‘if you do plan ontransferring, contact that school.’” Student concerns about program costs weresimilarly evaded, with CW 15 recalling, “we were told to emphasize, ‘it’s all

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covered’ – even though it’s being covered by student loans.” CW 15 recalled thatADAs would be reprimanded for telling students that most of the cost of tuitionwould be financed with loans that would have to be paid back, that student loanswere not dischargeable in bankruptcy, and that defaulting on student loans couldprevent someone from getting a mortgage. Similarly, with respect to questionsabout career prospects for graduates, CW15 described that, “[w]e would just tellthem, you can go onto the web and punch it in, and see what numbers you comeup with, [but they] spend $40k with us and can get an $8/hour medical assistantjob, but we can’t tell them that.” CW15 further recalled that career placementstatistics for the particular Brown Mackie College location were misleading,including that the school reported a graduate as placed when, “they could havebeen in that job for just one day” and also that definitions of relevant employmentwere stretched. “[I]f you had a business administration or management degreeand you ended up as a manager of a Circle K [convenience store], they includedthat in the statistics saying that’s management.” CW 15 further recalled thatEDMC set aggressive sales goals for ADAs: “[y]ou signed a contract that youwould hit this sales goal,” adding further that, “there was a ton of pressure to hityour numbers every month.” CW 15 described EDMC’s compensation system as,“they had a chart, and depending on how much money you wanted to make wasyour quota that you had to get.” According to CW 15, EDMC’s policies regardingstudent recruiting practices and ADA compensation came from, “[t]he gentlemanthat runs EDMC, Todd Nelson [who] ran University of Phoenix.” CW 15 recalledthat, “when [Nelson] abruptly resigned when [University of Phoenix] got sued,EDMC hired him, he brought the whole system to EDMC and all of the keypersonnel, and they just instituted the exact same system. . .” CW15 recalled thatADAs used “leads” that the Company purchased from “lead generatingcompanies” that collected “leads” by posting ads saying things like, “Obamawants you to go back to school,” encouraging people to click on links thatforwarded them to the “lead generating companies.” CW 15 recalled that,“[s]ometimes [when I called a lead] they’d say ‘I [thought] I was entering to win afree laptop.’” “99% [of online leads] were entering their information on, ‘Obamawants you to go back to school’ or something like that, [but] some of them thinkthey’re clicking on [] a job.” In contacting those online “leads,” ADAs would usean “interview process” script that enabled the ADA to “summarize back to themin [a] bleak picture, to make them feel the pain, to make them cry, no one has everbeen turned away, as long as you want to sign on the dotted line and you can getfinancial aid, you are in.” CW 15 further stated that, as to these recruitingpractices, the campus president “absolutely knew what was going on.”

Confidential Witness 16 was a Pittsburgh, Pennsylvania-based ADA for ArgosyUniversity from approximately 2007 through August 2009. CW 16’s recruitingwas conducted exclusively over the telephone. CW 16 described having workedin an office filled with “rows of people [making sales calls]” to prospectivestudents, where EDMC “had it set up where once one call was done, the next callwould kick in, [and the system] would monitor how many calls the assistantdirectors would take.” CW 16 recalled that ADAs faced increasing enrollmentquotas and stated that, “[e]ach semester you had to hit a certain amount of

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people.” According to CW16, these enrollment quotas were directly tied to ADAcompensation, recalling that, “[y]ou can make so much . . . money, 70, 80, 90k –you’re paid based on people you brought in.” CW16 recalled being promoted dueto having met enrollment targets and that, “the promotion was not based onexperience [or] skill sets, it [was based] upon numbers, and if the people in yourteam aren’t producing, then you get demoted.” EDMC’s quotas created a high-pressure, high-stress environment for ADAs where, “if you didn’t make yourquota, then you’re put on probation, third time, they’ll get rid of you.” Thisenvironment was created by Defendants Nelson and West, who CW 16 recalledmeeting with and putting direct pressure on ADAs’ supervisors (directors ofadmissions) to increase enrollments. CW 16 recalled that EDMC’s CEO and CFOwould meet with directors of admissions for discussions, “if the numbers aren’tthere.” According to CW16, management’s attitude was, “[i]f you can’t get itdone, we’ll replace you.” EDMC’s enforcement of enrollment quotas was, “wasvery frightening, very intimidating.” Each morning, CW 16’s supervisors “used toget people in a room and . . . get them excited . . . [by cheering] ‘I am good’...every morning we’d have to clap, almost like we’re getting a speech from afootball coach, and in the middle of the afternoon, they’d call us in, and if [weweren’t] doing good they’d ream us out.” According to CW16, “if you’re notproducing numbers they just box your stuff up in front of everyone, humiliateyou.” “[I]f you’re not trying to close the deal, they’ll push you aside.” CW16also recalled receiving “sales presentation” training about how to speak withprospective students. This training focused on securing enrollments with the goalto, “convince people, sometimes have them on the phone for three hours, [wewould] would wear them down to get them to apply.” “The longer you keep themon the phone by talking to them and convincing them . . . the likelihood[increases] for them to start, that’s when it counts for numbers.” CW 16 recalledthat part of EDMC’s sales training involved overstating the career opportunitiesavailable to graduates. CW 16 said, “they wanted us to paint a visual for thesepeople . . . they’d [have us] say ‘. . . ya know, after you finish this program, pause,aren’t you looking for the perfect job? Don’t you think, to be a counselor,wouldn’t it be great? One of the great benefits for you as a student is our careerservice, they’ll help you, they have umpteen amount of places they can refer youto.” According to CW16, however, career services at EDMC were of little value,“[c]areer services was four people who basically go on monster.com andindeed.com, they have no connections.” CW16 also recalled that supervisorsencouraged ADAs to mislead prospective students into applying by, among otherthings, waiving the $50 application fee. According to CW16, ADAs would tellprospective students, “you seem like a really, really good prospective student, letme see what I can do to waive the $50 administration fee.” The ADA would putthe student on hold under the pretense of speaking with a supervisor. The ADAdid not speak to a supervisor, but would come back to the student that the fee waswaived by saying, “hey, I got great news . . . my director says you’re gonna besuch a good student.” Supervisor approval was not required, and ADAs couldwaive application fees on their own. CW16 also recalls having been pressured toenroll vulnerable students that were unprepared for college level study. In one

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instance, CW 16 was working with a prospective student suffering frompsychological problems. CW16 understood that the student’s psychiatristcautioned that, “she was not ready to go to school.” Nonetheless, CW 16 wascriticized by a supervisor for not enrolling the student. The supervisor toldCW 16, “you should have closed her. . . why didn’t you get her into a program?”CW 16 also recalled that EDMC had previously required that incoming studentstake a proficiency test, but later decided to waive the test. According to CW16,“even if the person didn’t graduate from high school, they could take classes tokind of go in the back door to get them in a program if they get remedial stuff.”Finally, according to CW 16, EDMC was not concerned whether students would,in fact, succeed in their studies, stating, “. . . once these students go in, they arepretty much thrown to the wind, [and] now that they have the money to go toschool, EDMC profits, so forget ‘em.”

B. Post-Class Period Statements of Current EDMC Employee to Congress

64. Plaintiffs’ allegations are also based upon the written and oral post-Class Period

Congressional testimony of Kathleen Bittel (“Bittel”), a current EDMC employee, and a

September 15, 2010 letter that Bittel faxed to six U.S. Senators, including Senator Tom Harkin,

the chairman of the HELP Committee (the “Bittel Letter”). Bittel has worked at EDMC for

approximately the past three years in admissions and career services capacities. For the past year

and a half, Bittel has worked as a career services advisor at the Art Institute of Pittsburgh.

Previously, she worked in admissions as an ADA for Argosy University.

65. Bittel testified before the Senate HELP Committee on September 30, 2010 and

provided written testimony in connection with her appearance before the Committee. Bittel’s

testimony and the Bittel Letter, strongly corroborate the allegations concerning EDMC’s

recruitment, enrollment, financial aid, and career placement practices as detailed by the

Confidential Witnesses described in ¶63, supra, and as otherwise alleged herein. Furthermore,

the Bittel Letter states that:

I can attest that all that was testified to in the [HELP Committee] hearings[on August 4, 2010] was not only very true, but a companywide policyand not just [something at Argosy University]. These alleged tactics werepart of our daily sales meetings, and were being utilized by my most“successful” colleagues.

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66. According to Bittel’s written testimony, the admissions department at Argosy

University was a “high-pressure” environment where ADAs were “constantly pressured to

deliver a minimum of two applications per week.” ADAs would, in turn, place pressure on

prospective students to enroll. Bittel testified that “[n]ew ‘leads’ were to be called three times a

day for at least a week, then you could drop back to two, then one as the month progressed.”

These “leads” were generated when prospective students provided information about themselves

that was sold to numerous online schools without the students’ knowledge. Bittel recalled that

prospective students would be called almost immediately after providing a telephone number,

and that “these poor people were inundated with phone calls mere minutes after their oftentimes

unwittingly submitted information.”

67. Bittel’s written testimony also described how ADAs did nothing to help students

beyond their enrollment and “were responsible only to keep the student enrolled and attending

the classes for one week.” Nonetheless, Bittel described how she checked in on the enrollment

status of the students she enrolled at Argosy University. Bittel testified, “[o]ut of the 96 students

I enrolled, only 46 continued to be taking classes when I checked on their status 16 months later.

Additionally, more than half of the students still enrolled were on Academic Probation.”

68. In her oral testimony before the HELP Committee, Bittel further testified that,

“high-pressure sales tactics are being used to recruit individuals from the lower-income sector of

our population as they are eligible for the most amount of [federal student] aid.”

69. Bittel’s oral testimony also showed that EDMC’s business focus is on recruiting

and enrolling students in an “unethical funneling of tax dollars through low-income individuals

to further fill the coffers of mega-rich corporations” rather than providing students with

opportunities to advance themselves. Bittel testified, “I see a systemic problem here when there

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are only nine employees servicing the students [at EDMC’s Art Institute Online, Argosy

University Online, and South University Online] that are being recruited by an admissions

workforce of almost 1,600.” Bittel also testified that, at EDMC, “[c]areer services employees are

being paid nearly a third of what the top performers in the admissions department receive.”

70. The relative lack of attention to career placement at EDMC was further detailed in

Bittel’s written testimony, where she stated that among the nine career services staff, “[t]his

number was broken down into 5 advisors for the Art Institute Online graduates, 2 advisors for

the Argosy University Online graduates, and 2 for the South University Online graduates.”

Bittel explained that she “was responsible for 50-60 graduates in each [Art Institute] class. We

were responsible to work 3 classes simultaneously. We have only 6 months to work with each

class and the pressure to find gainful employment for so many in such a short period of time was

overwhelming.”

71. Bittel’s written testimony provides details of her experience working in the Career

Services Department at EDMC’s Art Institute. Bittel had hoped that a move to career advising

from admissions would be a rewarding opportunity to help graduates that were actively seeking a

better life “find good jobs in a poor job market.” In reality, however, Bittel testified that:

I realized quickly it was all about hitting quotas instead of really helpingstudents find meaningful work. I quickly came to see that career servicedepartment’s primary role is to lend credibility to the brands of EDMC byallowing them to claim such large numbers of successful graduatesworking in their fields. But these are not realistic numbers being reported.

72. According to Bittel’s written testimony, “[e]arly in my employment with career

services, a co-worker showed me how to manipulate information received from a student, to

ensure that the student could be listed as ‘gainfully employed’ for the purposes of the company’s

statistics.” Bittel recounted how that co-worker showed her two documents:

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one was a signed Employment Verification form from the graduate statingthey were working in their field earning $8,000 a year, the other a printoutfrom salary.com estimating that the average salary in their field and intheir zip code would be $25,000, which would meet the salary threshold of$10,500 to justify marking them as employed in their field. “Which onedo you think I’m going to turn in?” they laughed as they tossed thegraduate’s document in the trash and entered the salary.com data into thestudent’s file.

73. Bittel’s written testimony states that falsifying student employment data in the

manner done by her co-worker “[was] not discouraged by managers.” Bittel testified that she

“immediately reported these actions to the supervisor I had at the time, who promised to discuss

this with the head of the department. No disciplinary action was taken.” In fact, Bittel’s

testimony reveals, “to the contrary, this same co-worker who changed the student’s salary data

received EDMC’s ‘North Star Award’ shortly thereafter.” According to Bittel, “[t]he intent of

the award is to exhibit to other employees that ‘this was a star to follow.’” Reacting to Bittel’s

written testimony about substituting students’ reported salary information with estimated salary

levels, Senator Tom Harkin, Chair of the HELP Committee, asked Bittel whether “[there] –

basically was – an encouragement to do that [at EDMC]?” Bittel responded affirmatively,

stating, “[t]hat was the way I took it. It – it wasn’t written down in a memo. They’re far too

smart for that.” Bittel further told the Committee that “I saw that person rewarded in many

ways. . . . actions speak louder than words. And that is how that was – the way I took it to be.”

74. Bittel’s written and oral testimony both describe EDMC having an “89.5%

employment quota” for career counselors. According to Bittel’s written testimony, “[w]hen I

missed my quota by one tenth of one percent, the company docked $500 from my ‘bonus’ and I

was told that I could lose my job if I failed to meet October’s goal.” In response to a question

from Senator Harkin about what it meant for Bittel to “make your numbers,” Bittel described the

requirement:

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I was required to provide documentation that 85.9 percent of all thegraduates under my care were employed in field-related employmentearning more than $30,000. And I would ask you, sir, from an online artschool in these times, in this economy and with this job market, do youhonestly believe that’s achievable? That was my quota. That was myrequirement – 85.9 percent in field-related jobs earning $30,000 or more.

75. Bittel’s written testimony describes how, at EDMC, “we were able to essentially

eliminate graduates from the employment statistics if we could prove they had attenuating

circumstances that prevented them from seeking field related employment.” Bittel listed five

situations that created a “waiver” in which a graduate would not be counted in EDMC’s

employment statistics “prior to calculating the number of those gainfully employed,” including:

• Military – active duty military or the spouse of a solider• Medical Condition – primary care-giver or suffering from a medical condition

or disability preventing them from work• Established Professional – someone who had worked in an unrelated field for

at least 6 months earning a minimum of 10% more than the average startingsalary in their degree program

• Stay at Home Parent – one not seeking employment, choosing to raise theirchildren instead

• Education – one who was continuing their education and choosing not to seekemployment at that time

76. Bittel describes a graduate’s signature on an “established professional” waiver

form as an “acknowledg[ement] that they could not leave their current employment due to the

‘financial hardship’ it would cause them, because a job in their degree field would pay them far

less than what they were already earning in the field they had hoped to leave by obtaining the

education.”

77. In addition to the issue of “waivers” skewing EDMC’s reported placement

statistics, Bittel’s written testimony details further efforts by EDMC to falsely report that certain

graduates were gainfully employed in their field of study. According to Bittel, “I was repeatedly

pressured to call graduates working in unrelated fields and review with them the courses they

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had taken while at the Art Institute to find obscure details of their current jobs where it could be

considered that they were indeed ‘using their skills.’” Bittel testified that, “[i]f one could

convince [graduates] that they were using these ‘skills’ at least 25% of the time in their current

job, and to sign the employment form stating so, then their job could be counted as field related

employment.” According to Bittel, this was “rife with abuse” as EDMC career counselors “were

expected to convince graduates that skills they used . . . as waiters, payroll clerks, retail sales,

and gas station attendants were actually related to their course of study in areas like graphic

design and residential planning.”

78. Bittel further testified that EDMC also falsely presented statistics about graduates’

employment rates by counting among the employed those who worked at a job “for merely one

day.” According to Bittel’s written testimony, “[t]here was no company policy stating that a

graduate had to be currently employed in order for their job to be counted among the statistics.

If they worked in their field for one day within the time period between graduation and the six

month deadline, it was routinely included in the statistics as gainful employment.”

79. Bittel’s written testimony also states that many of her cited examples of graduates

who were not adequately employed in their fields of study came from graduates that were

discussed at weekly “brainstorming meetings.” She describes these meetings as, “including all 9

advisors and 2 supervisors where we discussed one another’s problem graduates. . . . Much

brainstorming was done in order to come up with other angles that we could employ to make

them fit into the employment category before the deadline.”

80. The Bittel Letter contains a substantially similar account of EDMC’s recruitment,

enrollment, financial aid, and career placement practices as provided in Bittel’s Congressional

testimony. In addition, the Bittel Letter provides further details of these practices at EDMC.

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81. In connection with Bittel’s testimony about EDMC’s targeting of lower-income

individuals described in ¶68, the Bittel Letter further described that while an ADA at Argosy

University Online, Bittel knew of recruiting practices that preyed upon vulnerable individuals to

secure their enrollment. Bittel describes, “[o]ne of my co-workers also attempted to enroll

gentlemen in homeless shelters and programs for the underprivileged. I was encouraged to enlist

a woman hiding out in a battered women’s shelter to go to the library to attend her classes.”

82. The Bittel Letter also provided further details regarding the improper

manipulation of employment data and counting of EDMC graduates as being gainfully employed

as described in ¶¶72-78. In addition to the practices described in her Congressional testimony,

the Bittel Letter described the following improper practices at EDMC:

• Early in my tenure with the [career services] department, I was instructed onhow to manufacture an e-mail from the graduate to say whatever it needed tosay, to justify placement.

• A Game Art and Design Bachelor’s Student (one who learns how to createvideo games) with 100K in student debt is working at a Toys R Us in thevideo game department earning $8.90 an hour. I was told to “place” him asemployed in his field because his work was with video games. “He needs toknow the knowledge he learned [at the Art Institute] to be able to help hiscustomers decide which game to purchase.”

• I had numerous Residential Planning Diploma (one quarter of an InteriorDesign Bachelor’s degree) Graduates who were working as wait staff in smallrestaurants for less than minimum wage. I was coerced into calling them toconvince them that they were using their learned skills by possibly re-decorating the restaurant and/or by re-arranging tables for banquets andparties being held there.

• I had Graphic Design students working in places like Starbucks whom wereexpected to agree they were using their “skills learned” within theiremployment by making signs for daily specials and menus.

• A co-worker had a Residential Planning Graduate who was working in a gasstation convenience store. He was expected to convince her that she was“using her skills” by arranging the displays of candy bars!

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• Unemployed Graduates who were doing some menial freelance work (mostoften for churches, friends, and family for free) were encouraged to setthemselves up as a business and “project what they would like to earn in theirfirst year” and to sign a document implying stable employment.

83. The Bittel Letter also described how EDMC’s admissions practices resulted in the

enrollment of students incapable of performing at the college level, creating “graduates who will

never find gainful employment justifying their 50-100K debt.” Bittel wrote, “[m]any of the

graduates I have worked with could barely read and had difficulty writing in full sentences. This

was at the end of their programs!” Bittel described further, “[o]ne Bachelor’s student with a

disability had his sister complete the courses for him! He had no skills of his own! He was a

Graphic Design Bachelor’s Graduate who did not know how to open a document in Adobe

Reader!”

84. Lastly, the Bittel Letter wrote, “Goldman Sachs and EDMC are concerned only

with continuing to be able to suck Federal Financial Aid funds through as many hapless

individuals as they can find.”

VII. VIOLATIONS OF THE SECURITIES ACT

85. Defendants are liable for violations of the Securities Act arising out of the sale of

EDMC stock in the IPO pursuant to a Registration Statement (described herein) that contained

untrue statements of material fact and omitted material facts required to make the statements

therein not misleading. Prior to and at the time of the IPO, EDMC engaged in improper

recruiting and enrollment practices including: misleading prospective students about tuition

costs, academic program quality, accreditation, graduation rates, and graduate employment

prospects and expected salaries and aggressively targeting low-income and vulnerable

populations; using aggressive telephone marketing practices; engaging in improper practices in

connection with students’ and prospective students’ financial aid forms; and unlawful

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admissions staff compensation practices that were contrary to the Registration Statement’s

portrayals of EDMC’s operational and financial positions. Moreover, as set forth herein, the

Registration Statement omitted to disclose a material related party transaction with an affiliate of

one of its largest private equity shareholders. This undisclosed related party transaction also

materially contributed to the improper recruiting and enrollment practices described herein. The

Registration Statement also omitted to disclose material risks to EDMC’s business operations

and financial results from regulatory changes being considered in a negotiated rulemaking that

the U.S. Department of Education began prior to the IPO.

86. Allegations set forth in this section of the Complaint assert strict liability and

negligence claims pursuant to Sections 11, 12(a)(2) and 15 of the Securities Act. As noted

above, the Securities Act claims alleged herein are not based on any allegation that any

Securities Act Defendant engaged in fraud or any other deliberate or intentional misconduct

relating to the IPO, and Plaintiffs expressly disclaim any reference to or reliance upon allegations

that Securities Act Defendant engaged in fraud relating to the IPO in connection with the

Securities Act claims.

A. EDMC’s October 1, 2009 IPO

87. On June 1, 2006, EDMC, then a publicly-traded company, was acquired by a

consortium of private equity investors. From June 2006 through the date of the IPO, EDMC’s

principal shareholders were private equity funds affiliated with Providence Equity Partners,

Goldman Sachs Capital Partners, and Leeds Equity Partners. In materials filed in connection

with the IPO, EDMC’s private equity investors were referred to collectively as the IPO’s

“Sponsors.”

88. On September 21, 2009, EDMC issued a press release and filed an amended

Registration Statement on Form S-1/A with the SEC to announce that the Company had

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commenced an IPO of 20,000,000 shares of common stock, with an estimated IPO price range of

$18 to $20 per share. The IPO was to commence “as soon as practicable” after the Registration

Statement became effective. According to the amended Registration Statement, the Underwriter

Defendants, identified as the Underwriters for the IPO, had an option to purchase up to an

additional 3,000,000 shares of common stock from EDMC to cover over-allotments in the IPO.

89. In connection with the IPO, EDMC filed an amended Registration Statement on

Form S-1/A with the SEC on October 1, 2009, and a Joint Proxy-Prospectus on Form 424B4 on

October 2, 2009 (the “Prospectus”) (collectively, these filings are the “Registration Statement”).

The Prospectus provides that it is “part of” the Registration Statement. A Notice of

Effectiveness issued by the SEC made the Registration Statement effective as of October 1, 2009

at 3:00 p.m. According to the Prospectus, after the IPO, private equity funds controlled by the

Sponsors would still own, in the aggregate, approximately 70.7% of the voting interests of

EDMC’s outstanding capital stock, or 69.2% in the event that the Underwriters exercised their

option to purchase an additional 3,000,000 shares to cover over-allotments.

90. On October 1, 2009, EDMC completed the IPO pursuant to the Registration

Statement, selling 23,000,000 shares of common stock (including 3,000,000 shares sold as

Underwriter over-allotments) at $18.00 per share. Net proceeds to the Company, after

transaction costs, totaled approximately $387.3 million.

91. EDMC’s Form 10-Q dated February 12, 2010 confirmed that, after consummation

of the IPO, the private equity funds controlled by the Sponsors owned approximately 69.2% of

the Company’s outstanding common stock.

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B. The Registration Statement Contained Untrue and Misleading Statementsand Failed to Disclose Material Information

92. The Registration Statement contained a series of materially untrue and misleading

statements regarding EDMC’s business operations and financial position and omitted to disclose

material information concerning EDMC’s use of improper recruiting and enrollment practices

which rendered EDMC not in compliance with the governing regulations for eligibility for Title

IV funds. The Registration Statement’s materially untrue and misleading statements and

material omissions include EDMC’s descriptions of business operations and/or financial data

that are directly and/or otherwise fundamentally linked to the Company’s improper recruiting

and enrollment practices, including EDMC’s history of enrollment growth and levels of

enrollment, the compensation system for EDMC’s recruiting and admissions personnel, EDMC’s

academic program quality and/or graduate career placement, and EDMC’s reported financial

results.

93. The Registration Statement also contained a series of materially untrue and

misleading statements and omitted to disclose material information concerning regulatory risks

that existed prior to and at the time of the IPO that would materially affect EDMC’s business

operations and financial results. Specifically, the Registration Statement omitted to disclose

risks related to the fact that, prior to the IPO, the Department of Education had initiated a

negotiated rulemaking process to develop new regulations that would gravely threaten EDMC’s

ability to participate in Title IV student financial assistance programs (that provided the

overwhelming majority of EDMC’s revenues) by: (1) repealing the 2002 regulations on incentive

compensation “safe harbors” to the HEA ban on incentive compensation paid to admissions and

financial aid personnel; and (2) defining the meaning of “gainful employment” of graduates in

connection with Title IV funding eligibility.

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94. In addition, the Registration Statement omitted to disclose a material related party

transaction with an affiliate of one of its largest private equity shareholders. Specifically, the

Registration Statement omitted to disclose that, at the time of the IPO, an affiliate of Goldman

Sachs Capital Partners was a substantial creditor of EDMC’s in connection with a “term loan

facility” and a “revolving credit facility” used to finance the 2006 Transaction. This undisclosed

related party transaction also materially contributed to the improper recruiting and enrollment

practices described herein.

1. Improper Recruiting and Enrollment Practices

95. In the Registration Statement, EDMC described its efforts and ability to recruit

and enroll students as being among the competitive strengths of the Company’s business and a

crucial factor contributing to EDMC’s historical growth in enrollment and revenues. The

Registration Statement also stated that EDMC had approximately 110,800 enrolled students as of

October 2008, and that EDMC “experienced a compounded annual enrollment growth rate of

18.0%” from October 1998 through October 2008, including a 12.0% compounded annual

enrollment growth rate at schools that EDMC had owned or operated for one year or more. The

Registration Statement failed to disclose, however, that as of the time of the IPO, EDMC was

inflating its student enrollments by engaging in improper recruiting and enrollment practices. As

stated by current EDMC employee Bittel in the September 15, 2010 Bittel Letter, “I can attest

that all that was testified to in the [August 4, 2010] hearings was not only very true, but a

companywide policy [throughout EDMC].”

96. According to former EDMC employees including CWs 9, 11, 13, and 15,

EDMC’s recruiting and admissions practices changed markedly after the Company was taken

over by private equity investors in 2006. These and other CWs describe how prior to and at the

time of the IPO, EDMC’s primary goal became achieving increasingly greater volumes of

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student enrollments. CW9 recalled that EDMC’s new management shifted from the Company’s

prior “focus[] on education” to “short term” objectives based on “financial interests” tied to

growth achieved through aggressively increasing enrollments. According to CW9, planning and

forecasting related to the growth targets set by EDMC’s new management “did not make sense”

and “appeared to be overly aggressive” based on the historical growth experience that CW9

observed at EDMC. CW13 described a “radical shift in recruitment policy,” at EDMC to

increase enrollments, and CW15 attributed these changes to Defendant Nelson and the

management team that he brought to EDMC. CW16 recalled that Defendants Nelson and West

would put pressure on directors of admissions to increase enrollments and would meet with them

“if the numbers aren’t there.” In addition, CW8 recalled that EDMC set “extremely over

aggressive” goals for student recruitment that included annual doubling of EDMC’s online

enrollments through the use of “aggressive marketing and sales people . . . to go after as many

students as you can.”

97. As also described herein, numerous former EDMC employees from different

geographic regions and business units, including CWs 1, 2, 3, 4, 6, 7, 12, 13, 14, 15, and 16

provided consistent accounts of how EDMC routinely used high-pressure tactics to compel

prospective students to enroll in EDMC’s programs prior to and at the time of the IPO. CW 15

recalled that ADAs were instructed to put pressure on prospective students and exploit their

vulnerabilities, “[w]e were told [by supervisors] to ‘make [prospective students] feel the pain,

make them feel the pain.’” CWs 1, 4, 6, 7, 12, 14, 15, and 16 recalled how EDMC regularly

made misrepresentations to students about such matters as the academic obligations of EDMC’s

programs, financial aid repayment obligations, availability of federal grants and qualification for

federal student assistance, the full cost of EDMC’s programs, and the availability of well-

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compensated employment opportunities after graduation. CW4 recalled EDMC using “heavy

sales recruiting tactics” to get students to enroll in online courses, and stated that, for example, “I

was encouraged to not tell people what the cost of the school was in actuality.” CW 16 recalled

that EDMC provided training to ADAs to, “convince people, sometimes have them on the phone

for three hours, [we would] would wear them down to get them to apply.” Similarly, CW 15

described how EDMC trained ADAs to encourage them to answer prospective students’

questions evasively when the “real answer” would discourage enrollment. CW 15 further

recalled that ADAs would be reprimanded for telling prospective students that the majority of

tuition costs would need to be paid using loans rather than grants, that federal student loans were

not dischargeable in bankruptcy, or that defaulting on student loans could prevent the student

from obtaining a mortgage. Furthermore, current EDMC employee Bittel described how

EDMC’s admissions staff would use high-pressure tactics to get prospective students to enroll,

including by making repeated telephone calls to prospective students in the same improper way

described in connection with the GAO Report.

98. CWs 3, 5, 16 and Bittel described how EDMC would target its high-pressure sales

and recruiting tactics on economically or otherwise disadvantaged individuals who ADAs would

lure with, among other things, promises about the availability of federal student assistance. CW3

recalled, “it was [ADAs’] job to talk [students] into [enrolling,]” including “[people who] would

never be able to pay for their education.” Bittel testified that, “high-pressure sales tactics are

being used to recruit individuals from the lower-income sector of our population as they are

eligible for the most amount of [federal student] aid.” The Bittel Letter further stated that, “[o]ne

of my co-workers also attempted to enroll gentlemen in homeless shelters and programs for the

underprivileged. I was encouraged to enlist a woman hiding out in a battered women’s shelter to

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go to the library and attend her classes.” The Bittel Letter also described working with graduates

who “could barely read and had difficulty writing in full sentences” that would never find gainful

employment to justify their massive student debt. Similarly, CW5 recalled EDMC focusing on

“enrolling everybody it could,” including students with special needs that “barely passed high

school . . . [and] would never pass in this college environment.” CW16 recalled having been

pressured by a supervisor to enroll a prospective student who was “not ready to go to school”

according to her psychiatrist, with the supervisor telling CW16, “you should have closed her. . .

why didn’t you get her into a program?”

99. Information about EDMC’s improper recruiting and enrollment practices was

material information to an investor in deciding whether to purchase EDMC common stock at

$18.00 per share in the IPO. The Registration Statement, however, did not disclose this

information. As noted in the GAO Report, institutions engaging in improper recruiting and

enrollment practices of the types described herein face substantial fines and possible suspension

or termination of their eligibility to receive funds under Title IV student assistance programs.

EDMC’s eligibility to participate in essential Title IV programs was thus at risk prior to and at

the time of the IPO, a fact that was not disclosed to investors.

2. Pressure on Admissions Staff to Enroll Students and Improper Incentive-Based Compensation Practices That Resulted in Improper Recruitingand Enrollment Practices

100. EDMC also failed to disclose the Company’s policies and practices that placed

extreme pressure on admissions staff to enroll increasingly larger numbers of students, including

the Company’s pervasive use of incentive-based compensation for ADAs. Such practices were

directly linked to EDMC’s enrollment levels due to their connection to EDMC’s undisclosed

improper recruiting and enrollment practices. CW7 recalled that EDMC asked ADAs to provide

misinformation to students about financial aid so that they could meet their enrollment quotas.

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101. Numerous former EDMC employees from different geographic regions and

business units, including CWs 1, 2, 3, 4, 5, 7, 12, 14, 15 and 16, recalled that recruiting staff

were under extreme pressure to meet enrollment quotas at EDMC. CWs 1 and 4 recalled that

each ADA faced escalating enrollment quotas based on the length of the ADA’s tenure at EDMC

and his or her prior enrollment volume. CW5 similarly recalled that enrollment quotas were

“very aggressive” and tied to the ADA’s prior enrollment performance. CW15 also described

enrollment quotas and stated that, “there was a ton of pressure to hit your numbers every

month.” CW 16 recalled that ADAs faced increasing enrollment quotas and that Defendants

Nelson and West pressured ADAs’ supervisors to increase enrollments, resulting in an

environment that, “was very frightening, very intimidating” for ADAs. According to CW 16,

management’s attitude was, “[i]f you can’t get it done, we’ll replace you.” Bittel also testified

that ADAs at Argosy University were “constantly pressured to deliver a minimum of two

applications per week.”

102. As further described herein, CWs 1, 2, 3, 4, 5, 7, 11, 12, 14, 15 and 16 recalled

that EDMC set ADA compensation levels based on the number of students that the ADA

enrolled. CWs 1, 4, and 5 recalled that EDMC used a “matrix” compensation system in which

ADA compensation was tied to the ADA’s enrollments. According to CW1, every six months,

ADAs were reviewed and had their salaries re-adjusted based on whether they had met their

enrollment quotas. CW2 recalled EDMC’s points-based system and that at the end of each

recruiting period, “these points were tallied up and this determined your salary.” CW2 further

recalled that, “the way compensation was structured at EDMC put a lot of pressure on

admissions reps to recruit as many students as they could,” and that “[w]e were compensated

based on how many students you start.” CW3 recalled ADA compensation was based on

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enrollments and that any additional review criteria that EDMC purported to use in evaluating

ADAs were largely irrelevant, with CW3 calling any other factors “just fluff.” CW4 recalled

being told that EDMC’s compensation “matrix” was used to get around Title IV restrictions on

paying ADAs “commissions.” CW 12 recalled that EDMC’s enrollment-based compensation

could be substantial, noting that, “[s]ome enrollment people were making more than their bosses

because they made their quotas. Some made six-figure salaries.” CWs 1, 4, and 5 also described

that ADAs received substantial increases in their compensation after short periods of time at

EDMC due to their having met or exceeded enrollment quotas. CW 16 also recalled that ADA

compensation was directly tied to enrollments, stating, “[y]ou can make so much . . . money, 70,

80, 90k – you’re paid based on people you brought in.” CW 16 also recalled being promoted due

to having met enrollment targets and that, “the promotion was not based on experience [or] skill

sets, it [was based] upon numbers.”

103. CW 11 described EDMC’s incentive-based compensation system as having been

devised and instituted at the EDMC Corporate level. CW1 1 further recalled that the

compensation system was reviewed and approved by EDMC’s senior management, including

Defendants Nelson and West. CW 15 also stated that Defendant Nelson was responsible for

instituting EDMC’s compensation system. Similarly, CW 10 recalled that “all pay raises for

admissions reps were approved by corporate headquarters.”

104. As disclosed in the Registration Statement, however, institutions participating in

Title IV programs are prohibited from having compensation systems that are “based directly or

indirectly on success in securing enrollments or financial aid” for “any person or entity engaged

in any student recruiting or admissions activities.” EDMC’s ADA compensation practices prior

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to and as of the IPO violated Title IV requirements and threatened EDMC’ s continued

participation in federal student financial assistance programs.

105. Information about EDMC’s pervasive pressure on recruiting and enrollment

personnel, including the Company’s use of an incentive-based compensation system that

rewarded ADAs for achieving escalating enrollment quotas, was material to an investor in

deciding whether to purchase EDMC common stock at $18.00 per share in the IPO. The

Registration Statement, however, did not disclose this information that would have revealed to

investors that EDMC’s eligibility to receive essential Title IV funds was at risk prior to and at

the time of the IPO. The GAO Report described how institutions engaging in improper

recruiting and enrollment practices of the types described herein face substantial fines and

possible suspension or termination of their eligibility to participate in Title IV student assistance

programs. As such, EDMC’s Title IV eligibility was threatened by EDMC’s incentive

compensation practices, described herein, that violated the HEA and Title IV regulations prior to

and at the time of the IPO. EDMC’s incentive compensation practices further placed the

Company’s Title IV eligibility at risk due to the fact that the Department of Education had begun

a negotiated rulemaking process prior to the IPO that was aimed at, among other things,

repealing the 12 “safe harbors” from the HEA ban on incentive compensation for admissions and

financial aid officers.

3. Academic Program Quality and Graduate Career Placement Were NotAs Described

106. According to former EDMC employees including CWs 7, 12, 13, 14, 15, and 16,

and current EDMC employee Bittel, certain of EDMC’s undisclosed improper recruiting and

enrollment practices included making misrepresentations to prospective students about EDMC’s

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academic program quality and focus on graduate career placement. Such practices were a further

contributing factor relating to EDMC’s growing enrollments.

107. CW7 recalled that ADAs expressed concern about pressuring students to enroll in

low-quality EDMC programs that CW7 called a “diploma mill.” According to CW7, “[i]t was a

disgrace what they charged people to get what was essentially a valueless degree.” CW7 further

recalled that ADAs expressed concern that “[students] don’t know what they’re getting into. It’s

too expensive.” In addition, CW7 described how EDMC itself did not believe that the education

received by its graduates was of value, recalling that despite there being substantial challenges in

hiring sufficient numbers of new ADAs, EDMC refused to hire its own graduates into those

positions. As CW7 recalled, EDMC prohibited CW7 from working with EDMC institutions’

career placement offices to recruit ADAs, stating that “[t]hey were adamant that I not work with

career services [at EDMC schools].” As also described herein, CW12 recalled that “[t]he

admissions reps tell [prospective students] exactly what they want to hear” about EDMC’s

academic programs. Similarly, as described herein, CW14 recalled that EDMC recruiters were

instructed to “make the program sound like it is more effective than it is” and “make it sound

exciting.” CW 15 further described how EDMC ADAs were trained to answer prospective

students’ questions evasively when the “real answer” would discourage enrollment. CW16 also

described how ADAs were trained to overstate career services available to graduates and “paint a

visual” for prospective students to sell them on the hope of a “perfect job” in their dream field.

108. Bittel provided extensive testimony to the Senate HELP Committee about

EDMC’s graduate career placement. Bittel testified that EDMC devoted substantially more

resources to recruiting and enrollment than career placement, including describing “a systemic

problem here when there are only nine [career services] employees servicing the students that are

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being recruited by an admissions workforce of almost 1,600. Bittel further testified, and wrote in

the Bittel Letter, that EDMC’s career placement statistics were manipulated to count more

students as “‘gainfully employed’ for the purposes of the company’s statistics,” including by

using estimated average salaries rather than graduates’ actually reported earnings, using

“waivers” to avoid counting unemployed or underemployed graduates in EDMC’s employment

statistics, stretching graduates’ job descriptions to have them included within the definitions of

“field related employment,” and counting as “employed” graduates who had worked at a relevant

job “for merely one day.”

109. Information about EDMC’s misrepresenting the quality of its academic programs

and career placement was material information to an investor in deciding whether to purchase

EDMC common stock at $18.00 per share in the IPO. The Registration Statement, however, did

not disclose this information. The GAO Report described misrepresentations to prospective

students about the “employability” of a school’s graduates and/or career placement as being

among the practices that violate regulations governing institutions’ eligibility to participate in

Title IV student financial assistance programs. EDMC’s eligibility to receive essential Title IV

funds was thus at risk from EDMC’s practices prior to and at the time of the IPO, a fact that was

not disclosed to investors.

4. Enrollment and Financial Data Disclosed in the Registration StatementDid Not Comply With Relevant GAAP and SEC Reporting Requirements

110. In the Registration Statement, EDMC issued materially untrue and misleading

statements and omitted to disclose material information concerning EDMC’s financial status and

results of operations, contrary to Generally Accepted Accounting Principles (“GAAP”) and SEC

reporting requirements. The Registration Statement disclosed, among other things, historical

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financial information from fiscal year (“FY”) 2007 through FY 2009 2 relating to EDMC’s

student enrollment and the Company’s revenues and income that were overwhelmingly and

fundamentally linked to student enrollment through tuition and related fees. Prior to and at the

time of the IPO, however, this information was untrue and misleading and omitted material

information necessary to make EDMC’s reported financial results not misleading.

111. As described at ¶¶95-98; 100-104; 106-108, supra, EDMC’s enrollments and

enrollment growth were materially inflated by EDMC’s undisclosed improper recruiting and

enrollment practices prior to and at the time of the IPO.

112. A former EDMC employee, CW8, recalled that EDMC’s system for reporting

enrollment data did not have internal controls that were “true and accurate.” As a result, CW8

recalled that EDMC overstated its enrollments by counting students as being “enrolled” when, in

fact, they were not presently enrolled in EDMC’s courses. CW8 recalled that, for reporting

purposes, EDMC counted a student as “enrolled” when the student had been enrolled during the

previous semester and indicated that he or she might enroll in the next term, even when that

student had not committed to actually enroll for the current semester. In addition, current EDMC

employee Bittel testified regarding pressure on ADAs to keep students “enrolled and attending

the classes for one week” and recalled that of the 96 students she enrolled, only 46 were still

taking classes sixteen months after enrollment.

113. GAAP are principles recognized by the accounting profession as the conventions,

rules and procedures necessary to define accepted accounting practice at a particular time. SEC

Regulation S-X, 17 C.F.R. §210.4-01(a)(1), states that financial statements filed with the SEC

2 At all times relevant hereto, EDMC’s fiscal year ran from July 1 through June 30 of each year.Accordingly, EDMC’s first fiscal quarter (“Q1”) ended on September 30, the second fiscalquarter (“Q2”) ended on December 31, the third fiscal quarter (“Q3”) ended on March 31, andthe fourth fiscal quarter (“Q4”) ended on June 30.

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that are not prepared in compliance with GAAP are presumed to be misleading and inaccurate,

despite footnote or other disclosure. Financial statements include all notes to the statements and

all related schedules. 17 C.F.R. § 210.1-01(b).

114. EDMC’s financial statements in the Registration Statement did not conform to the

following principles of fundamental GAAP, including Financial Accounting Standard Board

(“FASB”) Statement of Financial Accounting Concepts No. 1 (“SFAC No. 1”) and FASB

Statement of Financial Accounting Concepts No. 2 (“SFAC No. 2”), among others:

(a) The principle that financial reporting should provide information that isuseful to present and potential investors and creditors and other users inmaking rational investment, credit and similar decisions (SFAC No. 1,¶34);

(b) The principle that financial reporting should provide information about theeconomic resources of an enterprise, the claims to these resources, and theeffects of transactions, events and circumstances that change resources andclaims to these resources (SFAC No. 1, ¶40);

(c) The principle that financial reporting should provide information about anenterprise’s financial performance during a period; investors and creditorsuse information about the past to help in assessing the prospects of anenterprise. Thus, although investment and credit decisions reflectinvestors expectations about the future enterprise performance, thoseexpectations are commonly based, in substantial part, on evaluations ofpast enterprise performance (SFAC No. 1, ¶42);

(d) The principle that financial reporting should provide information abouthow management of an enterprise has discharged its stewardshipresponsibility to owners (stockholders) for the use of enterprise resourcesentrusted to it; to the extent that management offers securities of theenterprise to the public, it voluntarily accepts wider responsibilities foraccountability to prospective investors and to the public in general (SFACNo. 1, ¶50);

(e) The principle that financial reporting should include explanations andinterpretations to help users understand financial information provided; asmanagement knows more about an enterprise and its affairs than investors,management can often increase the usefulness of financial information byidentifying certain transactions, other events, and circumstances that affectthe enterprise and explaining their financial impact on it (SFAC No. 1,¶54);

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(f) The principle that financial reporting should be reliable in that itrepresents what it purports to represent; that information should be reliableas well as relevant is a notion that is central to accounting; thisrepresentational faithfulness means correspondence or agreement betweena measure or description and the phenomenon it purports to represent(SFAC No. 2, ¶¶58-59, 63);

(g) The principle of completeness, which means that nothing material is leftout of the information that may be necessary to insure that it validlyrepresents underlying events and conditions (SFAC No. 2 ¶79);

(h) The principle that conservatism be used as a prudent reaction touncertainty to try to ensure that uncertainties and risks inherent in businesssituations are adequately considered; the best way to avoid injury toinvestors is to try to ensure that what is reported represents what itpurports to represent (SFAC No. 2, ¶¶95, 97);

115. As described herein, the Registration Statement presented investors with financial

information in the Registration Statement (including information related to EDMC’s enrollment,

revenues, and income) that omitted to disclose material details related to EDMC’s improper

recruiting and enrollment practices that materially affected the Company’s enrollments, EDMC’s

use of incentive compensation to reward its admissions personnel for increasing enrollments, and

the related risks to EDMC’s ability to receive Title IV student financial assistance prior to and at

the time of the IPO. Accordingly, the Registration Statement did not comply with GAAP with

respect to: (1) the usefulness of EDMC’s financial statements to potential investors deciding

whether to participate in the IPO; (2) the reliability and representational faithfulness of the

financial information presented in the financial statements; and (3) the completeness of the

financial statements.

116. Failures to comply with GAAP, including those described herein, constitute a

significant internal control deficiency. In addition CW8 described EDMC’s internal controls

related to the reporting of enrollment data as not being “true and accurate.” As such, EDMC’s

internal controls were deficient prior to and at the time of the IPO.

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117. Information about EDMC’s noncompliance with GAAP including those described

herein was material information to an investor in deciding whether to purchase EDMC common

stock at $18.00 per share in the IPO. The registration statement, however, did not disclose this

information.

5. Omissions Regarding Material Related Party Transaction With GoldmanSachs Capital Partners Affiliate

118. In the Registration Statement, EDMC stated that, “[a]s a result of the [2006]

Transaction, we are highly leveraged, and our debt service requirements are significant. At June

30, 2009, we had $1,988.6 million in aggregate indebtedness outstanding, including short-term

debt under the revolving credit facility. . . . [W]e had $84.7 million of additional borrowing

capacity on the revolving credit facility at June 30, 2009.”

119. EDMC further disclosed that its indebtedness related to the 2006 Transaction

included “senior secured credit facilities” consisting of a $1.185 billion “term loan facility” and a

$388.5 million “revolving credit facility” that would, upon consummation of the IPO,

automatically increase to $442.5 million. According to the Registration Statement, “our term

loan facility matures on June 1, 2013” and “borrowings under our revolving credit facility, if

any, mature on June 1, 2012.” The Registration Statement does not identify the lenders that are

parties to either the term loan facility or the revolving credit facility.

120. In describing interest rates and fees that it pays on its debt obligations, EDMC

disclosed in the Registration Statement that, “[i]n addition to paying interest on outstanding

principal under the senior secured credit facilities, we are required to pay a commitment fee to

the lenders under the revolving credit facility in respect of the unutilized commitments

thereunder. At June 30, 2009, the commitment fee rate was 0.375% per annum. We must also

pay customary letter of credit fees.”

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121. Regarding the revolving credit facility, EDMC disclosed that:

In August 2009, we signed an agreement to increase capacity on our revolvingcredit facility . . . and to add two letter of credit issuing banks. . . . Uponconsummation of this offering, the revolving credit facility will automaticallyincrease to $442.5 million. The revolving credit facility includes borrowingcapacity available for letters of credit and for borrowings on same-day notice,referred to as swing line loans.

122. With respect to the term loan facility and the maturity date of the revolving credit

facility, EDMC disclosed that:

We are required to pay installments on the loans under the term loan facility inquarterly principal amounts of $3.0 million, which is equal to 0.25% of theirinitial total funded principal amount calculated as of the closing date, throughApril 1, 2013. The remaining amount is payable on June 3, 2013, which weestimate will be $1,082.4 million, assuming that we do not make any prepaymentsbefore then. Principal amounts outstanding under the revolving credit facility aredue and payable in full on June 1, 2012.

123. As revealed to the market in an August 5, 2010 Business Week article, “Goldman

Schools Students on Debt,” EDMC owed a substantial debt to its private equity owners. The

article also described that this debt was a material factor related to EDMC’s aggressive

enrollment growth goals and strategies that, in turn, led to the improper recruiting and enrollment

practices described herein. The BusinessWeek article cites EDMC’s former CFO, Robert T.

McDowell, as recalling, “[t]he debt from the acquisition changed the culture of EDMC,” and that

McDowell was “worried that the quality of the experience for employees and students was going

to deteriorate.” McDowell is further quoted as stating, “[y]ou take on that amount of private-

equity debt, you need to earn high rates of return for these investors.”

124. Goldman Sachs Capital Partners and its affiliates exerted significant control and

influence over EDMC. The Registration Statement disclosed that, upon completion of the IPO,

private equity funds affiliated with Goldman Sachs Capital Partners would own 34.4% of

EDMC’s common stock, or 33.7% if the Underwriters were to exercise their over-allotment

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option. Affiliates of Goldman Sachs Capital Partners were, and would remain, EDMC’s single

largest shareholder. Furthermore, as described in the Registration Statement, at the time of the

IPO, EDMC’s board of directors included two members with ties to Goldman Sachs Capital

Partners and/or its affiliates, Defendants Jones (a Managing Director at Defendant Goldman

Sachs) and Mullin (a senior advisor to Goldman Sachs Capital Partners). The Registration

Statement also identified a director nominee, Mick J. Beekhuizen (a Vice President in the

Merchant Banking Division of Defendant Goldman Sachs), who would become a member of

EDMC’s board upon consummation of the IPO.

125. The Registration Statement described certain transactions with related parties,

including affiliates of Goldman Sachs Capital Partners. These transactions and related matters

disclosed in the Registration Statement included:

• The conflict of interest of Defendant Goldman Sachs as an Underwriterdue to its affiliation with Goldman Sachs Capital Partners;

• Defendant Goldman Sachs’s receipt of customary underwriting fees inconnection with the IPO;

• $5 million in annual “advisory fees” that are paid to EDMC’s “Sponsors,”including Goldman Sachs Capital Partners;

• A five-year interest rate swap in the amount of $375 million with anaffiliate of Goldman Sachs Capital Partners;

• March 2009 and February 2007 payments of $300,000 and $400,000,respectively, to an affiliate of Goldman Sachs Capital Partners inconnection with investment banking services provided to EDMC “forseparate amendments to the Company’s senior secured loan facility”;

• A payment of $5.2 million to an affiliate of Goldman Sachs CapitalPartners for “certain underwriting and financial services” in connectionwith a June 2006 offering of Notes by EDMC and “entering into oursenior secured credit facilities”;

• Possible compensation for “providing investment banking or otherfinancial advisory services” in connection with prospective strategictransactions;

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• The “Registration Rights Agreement” between EDMC and the Sponsors,including Goldman Sachs Capital Partners, that grants the Sponsorscertain rights to cause EDMC to exchange shares held by the Sponsors tocommon stock for public resale; and

• Separately, that Defendant Goldman Sachs would receive a $1.08 pershare “underwriting discount” in connection with its role as an underwriterselling 5,771,960 shares in the IPO, not including over-allotment sales.

126. The Registration Statement also disclosed, in connection with a separate category

of EDMC’s debt, without identifying the particular private equity shareholders at issue:

We believe that affiliates of certain of the Sponsors own in the aggregateapproximately $81 million in aggregate principal amount of the seniorsubordinated notes. To the extent that an affiliate of a Sponsor validly tenders allor any portion of its senior subordinated notes in the tender offer and such seniorsubordinated notes are accepted for purchase in the tender offer, such affiliateindirectly will receive a portion of the proceeds from this offering.

127. Despite the Registration Statement’s disclosures of certain material relationships

and transactions with affiliates of Goldman Sachs Capital Partners, the Registration Statement

omitted to disclose the material fact that EDMC was indebted to Goldman Sachs Credit Partners

L.P., an affiliate of Goldman Sachs Capital Partners. Goldman Sachs Credit Partners was a

lender to EDMC through the term loan facility and the revolving credit facility.

128. Goldman Sachs Credit Partners’ participation in the term loan facility and the

revolving credit facility was further detailed in a Form 8-K that EDMC filed with the SEC on

December 8, 2010. In that 8-K, EDMC stated:

Goldman Sachs Credit Partners L.P. (“GSCP”), one of the lenders under theCompany’s revolving credit facility and term loan, is an affiliate of GoldmanSachs Capital Partners, which together with its affiliates beneficially ownsapproximately 39.1% of EDMC’s issued and outstanding common stock. Inconnection with the Amended Agreement, GSCP has agreed to extend thematurity dates of its revolving commitment and its portion of the term loan.

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129. GAAP requires that entities disclose material related party transactions. FASB

Statement of Financial Accounting Standards No. 57, Related Party Disclosures (“SFAS 57”) 3

articulates the applicable GAAP standard for disclosures of related party transactions, which

includes transactions between, among other parties, “[a]ffiliates of the enterprise” and the

“principal owners of the enterprise.” SFAS 57 also defines related parties to include:

other parties with which the enterprise may deal if one party controls or cansignificantly influence the management or operating policies of the other to anextent that one of the transacting parties might be prevented from fully pursuingits own separate interests. Another party also is a related party if it cansignificantly influence the management or operating policies of the transactingparties or if it has an ownership interest in one of the transacting parties and cansignificantly influence the other to an extent that one or more of the transactingparties might be prevented from fully pursuing its own separate interests.

130. Appendix A to SFAS 57 states that no “material” information should be left out of

an entity’s related party disclosures to ensure that the disclosure “validly represents the

underlying events and conditions” as required by SFAC No. 2. Material related party

transactions must also be disclosed to ensure that the entity’s financial statements are useful

under SFAC No. 2. Appendix A to SFAS 57 cautions that, “Because it is possible for related

party transactions to be arranged to obtain certain results desired by the related parties, the

resulting accounting measures may not represent what they usually would be expected to

represent.” Furthermore, Appendix A states, “The [FASB] also believes that relevant

information is omitted if disclosures about significant related party transactions required by this

Statement are not made.”

131. Information about EDMC’s substantial and material indebtedness to Goldman

Sachs Credit Partners, an affiliate of Goldman Sachs Capital Partners, in the term loan facility

3 As the Registration Statement contained EDMC’s financial statements and related footnotesconcerning FY 2007- FY 2009, SFAS 57 applied to EDMC’s related party transactiondisclosures in the Registration Statement.

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and revolving credit facility was material information to an investor in deciding whether to

purchase EDMC common stock at $18.00 per share in the IPO. Moreover, EDMC’s omission to

disclose this information was contrary to SFAS 57 and relevant GAAP. The registration

statement, however, did not disclose information regarding EDMC’s indebtedness to Goldman

Sachs Credit Partners.

6. Omissions Regarding Material Federal Regulatory Changes WithRespect to “Gainful Employment” and Incentive Compensation

132. In the Registration Statement, EDMC disclosed that it faced certain risks due to

uncertainties from recently enacted and potential federal legislative and regulatory changes that

could materially affect the Company’s business operations and future earnings. The federal

legislative and regulatory risks identified in the Registration Statement involved the following: 4

• General and unspecified potential legislative action by Congress includingchanges to Title IV program eligibility standards, reduction inappropriations for Title IV assistance; Congressional imposition ofadditional requirements on state accrediting agencies; or other legislativeactions that would reduce federal student aid funding or increase EDMC’sadministrative costs;

• The potential for increased administrative costs due to then-unapprovedlegislation expanding the federal “Direct Loan” program with whichEDMC had little experience. The Registration Statement stated that,“President Obama has introduced a budget proposal and a committee inthe U.S. House of Representatives has approved a bill that would requireall new federal student loans after July 1, 2010 to be made through theDirect Loan program.” The Registration Statement states further that, “weanticipate that each of our U.S. based schools will participate in the DirectLoan program by June 30, 2010” and that adapting to this program willrequire changes to EDMC’s systems and operating procedures that “couldcause increases to our administrative costs and delays to our receipt offederal student loan proceeds.”

4 The risk disclosures set forth herein do not include the separate kinds of regulatory risksdescribed in the Registration Statement arising from U.S. Department of Education compliancemonitoring and/or enforcement of existing regulations. The risk disclosures described hereinalso do not include EDMC’s discussion of various state-level legislative or regulatory risks.

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• Under the August 2008 Higher Education Act reauthorization, institutions’cohort default rates for federal FY 2009 and later will be based on the rateat which the institutions’ former students who enter repayment during theyear default on their federal student loans on or before the second yearfollowing the year in which they entered repayment. As a result of theextended default period, most institutions’ expected cohort default ratesare expected to materially increase when rates based upon the newcalculation method are first published after October 1, 2011. If aninstitution’s cohort default rate equals or exceeds 25% in any of the threemost recent fiscal years, or if its cohort default rate for Perkins loansexceeds 15% for the most recent federal award year, the institution may beplaced on provisional certification status for up to three years. Whileprovisional certification does not preclude access to Title IV programfunds, it does subject the institution to closer review by the EducationDepartment and “possible summary adverse action if that institutioncommits a material violation of Title IV program requirements”; and

• In a discussion of the “so-called ‘incentive compensation’ law” and theDepartment of Education’s July 2003 regulations establishing “12compensation arrangements that . . . are not in violation of the incentivecompensation law,” the Registration Statement notes that the regulations“do not establish clear criteria for compliance in all circumstances, and theU.S. Department of Education has announced that it no longer will reviewand approve individual schools’ compensation plans prior to theirimplementation.”

133. Despite Defendants’ extensive discussions of risks related to potential legislative

and regulatory changes that may have material affects on EDMC, the Registration Statement

makes no mention of the fact that, prior to the IPO, the Department of Education had taken

action to initiate a negotiated rulemaking process that was intended to: (1) repeal the 2002

regulations on incentive compensation “safe harbors” regarding incentive compensation paid to

admissions and financial aid personnel; and (2) define the meaning of “gainful employment” of

graduates in connection with Title IV funding eligibility.

134. Moreover, the Registration Statement does not address the impact of the specific,

material risks central to EDMC’s business operations and prospective financial condition that

were implicated by the regulatory changes being addressed in the Department of Education’s

negotiated rulemaking, including, among other things: (1) the threat to EDMC institutions’

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eligibility to receive federal Title IV funds as a result of defining graduates’ federal student loan

repayment rates under a revised “gainful employment” calculation; (2) the threat to EDMC

institutions’ eligibility to receive federal Title IV funds should EDMC fail to comply with the

HEA prohibition on incentive compensation arrangements as a result of a repeal of the 2002

“safe harbor” regulations; and (3) the threat to EDMC’s pattern of historical growth in

enrollments and revenues that would result from the repeal of the 2002 incentive compensation

“safe harbor” regulations and/or any increased scrutiny of EDMC’s improper admissions staff

compensation practices by the Department of Education resulting from issues raised during the

negotiated rulemaking process.

135. Information about the risks to EDMC from the Department of Education’s

consideration of changes to the incentive compensation regulations and “gainful employment”

definitions was material information to an investor in deciding whether to purchase EDMC

common stock at $18.00 per share in the IPO. The registration statement, however, did not

disclose this information.

C. The Untrue and Misleading Registration Statement

136. The Registration Statement contained a series of materially untrue and misleading

statements and failed to disclose material information concerning EDMC’s business operations

and financial results related to EDMC’s improper recruiting and enrollment practices. These

materially untrue and misleading statements and material omissions related to EDMC’s history

of enrollment growth, academic program quality and graduate career placement, and use of

incentive compensation systems with EDMC’s admissions staff.

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1. Statements Regarding EDMC’s Historical Enrollment Growth andMarketing Practices Omitted Material Information About EDMC’sImproper Recruiting and Enrollment Practices

137. In the Registration Statement, EDMC disclosed that it was “among the largest

providers of post-secondary education in North America, with approximately 110,800 enrolled

students as of October 2008.” EDMC further stated that, “[w]e target a large and diverse market

as our educational institutions offer students the opportunity to earn undergraduate and graduate

degrees, including doctoral degrees, and certain specialized non-degree diplomas in a broad

range of disciplines.”

138. Speaking to the Company’s historical enrollment growth rates, EDMC stated:

During our more than 35-year operating history, we have expanded the reach ofour education systems and currently operate 92 primary locations across 28 U.S.states and in Canada. In addition, we have offered online programs since 2000,enabling our students to pursue degrees fully online or through a flexiblecombination of both online and campus-based education. During the period fromOctober 1998 through October 2008, we experienced a compounded annualenrollment growth rate of 18.0%. During the same time period, the schools thatwe have owned or operated for one year or more experienced a compoundedannual enrollment growth rate of 12.0%. We seek to maintain growth in a mannerthat assures adherence to our high standard of educational quality and track recordof student success.

139. EDMC further described certain efforts to increase enrollment growth that were

instituted by the Company’s private equity owners starting in June 2006:

Since the Transaction in June 2006, we have undertaken multiple initiatives toincrease our penetration of addressable markets in order to enable us to accelerateour growth and expand our market position. We have opened 20 new locations,acquired two schools, developed 36 new academic programs and introduced over600 new or existing academic programs to locations that had not previouslyoffered such programs. The compound annual enrollment growth rate at ourschools was 19.6% between July 2006 and July 2009. During the same timeperiod, the compound annual enrollment growth rate for schools owned oroperated for one year or more was 18.2%. We have made significant capitalinvestments in technology and human resources, particularly in marketing andadmissions, designed to facilitate future enrollment growth while enhancing theeffectiveness of our marketing efforts. We have also upgraded our infrastructure,student interfaces and student support systems to enhance the student experience,

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while providing greater operational transparency. We have made considerableinvestments in our online education platform, which has resulted in strongenrollment growth. The number of students enrolled in fully online academicprograms has grown more than five-fold to approximately 26,200 students in July2009, compared to approximately 4,600 students in July 2006.

140. Stressing the significance of enrollment growth to EDMC, the Registration

Statement stated, “[o]ur business model has a number of favorable financial characteristics,

including consistent historical enrollment growth, high visibility into operational performance,

opportunity for future profit margin expansion and strong operating cash flow generation . . . .”

On these points, EDMC provided further detail:

• History of consistent enrollment growth. During the period from October1998 through October 2008, we experienced a compounded annualenrollment growth rate of 18.0%. During the same time period, theschools that we have owned or operated for one year or more experienceda compounded annual enrollment growth rate of 12.0%. We generallyachieve growth through a number of independent sources, includingcontinued investment in existing schools, the addition of schools(organically or through acquisition) and new delivery channels, such asonline. The significant investments we have made since the Transactionin numerous areas of our workforce, including marketing and admissions,new campuses and online education and infrastructure, are designed tosupport future enrollment.

• High visibility into operational performance. We believe that we benefitfrom a business model with good insight into future revenue and earnings,given the length of our academic programs. Approximately 64% of ourstudents as of October 2008 were enrolled in Doctorate, Master’s andBachelor’s degree programs, which are typically multi-year programs thatcontribute to the overall stability of our student population.

• Opportunity for future profit margin expansion. Our business modelbenefits from scale and permits us to leverage fixed costs across ourdelivery platforms. Since the Transaction in June 2006 . . . we have madesignificant investments in numerous areas of our workforce in order tosupport future enrollment growth and enhance the student experience. . . .We believe that our continued focus on information systems, operatingprocesses and key performance indicators will permit us to enhance oureducational quality, growth and profitability over time . . . .

• Strong operating cash flow generation. We historically have generatedstrong cash flows. We benefit from investments with attractive returns on

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capital and favorable working capital balances due to advance payment oftuition and fees. Since the Transaction, we have made significantinvestments to support growth while simultaneously upgrading theinfrastructure required to leverage our delivery platforms. In fiscal 2009,we generated cash flows from operations of $293.4 million.

141. As part of an “Industry Overview,” EDMC described “a number of factors

contributing to the long-term growth of the post-secondary education industry,” citing U.S.

government statistics and analyses showing greater demand for college graduates in the

workforce, the substantially greater wages that college graduates can earn, and lower rates of

unemployment among college graduates than individuals without college experience. EDMC

also identified the increasing availability of government and private financial aid for post-

secondary education as a growth factor for the industry. In addition, EDMC cited statistics from

the College Board in stating that “the strong demand for post-secondary education has enabled

educational institutions to consistently increase tuition and fees.” EDMC stated its belief “that

for-profit providers will capture an increasing share of the growing demand for post-secondary

education, which has not been fully addressed by traditional public and private universities,”

offering the following distinction as to why for-profit schools like EDMC were different:

Non-profit public and private institutions can face limited financial capability toexpand their offerings in response to the growing demand for education, due to acombination of state funding challenges, significant expenditures required forresearch and the professor tenure system. Certain private institutions also maycontrol enrollments to preserve the perceived prestige and exclusivity of theirdegree offerings. . . .

For-profit providers have continued their strong growth, primarily due to thehigher flexibility of their programmatic offerings and learning structure, theiremphasis on applied content and their ability to consistently introduce newcampuses and academic programs.

142. In describing “Our Competitive Strengths,” EDMC stated, with respect to factors

that have driven EDMC’s enrollment:

• Recognized brands aligned with specific fields of study and degree offerings

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We offer academic programs primarily through four education systems. We havedevoted significant resources to establishing, and continue to invest in developing,the brand identity for each education system. Through The Art Institutes, ArgosyUniversity, Brown Mackie Colleges and South University education systems, wehave the ability to align our academic program offerings to address the uniqueneeds of specific student groups. Our marketing strategy is designed to developbrand awareness among practitioners and likely prospects in particular fields ofstudy. We believe that this comprehensive brand building approach in eachspecific market also enables us to gain economies of scale with respect to studentacquisition and retention costs, assists in the recruitment and retention of qualityfaculty and staff members and accelerates our ability to expand online courseofferings.

• Diverse program offerings and broad degree capabilities

Our breadth of programmatic and degree offerings enables us to appeal to adiverse range of potential students. . . . Approximately 64% of our students as ofOctober 2008 were enrolled in Doctorate, Master’s and Bachelor’s degreeprograms, which are typically multi-year programs that contribute to the overallstability of our student population. We monitor and adjust our educationofferings based on changes in demand for new programs, degrees, schedules anddelivery methods.

• National platform of schools and integrated online learning platform

The combination of our national platform of schools and integrated onlinelearning platform provides students at three of our education systems with flexiblecurriculum delivery options and academic programs taught on campus, online andin blended formats. This flexibility enables our academic programs to appeal toboth traditional students and working adults who may seek convenience due toscheduling, geographical or other constraints. . . . Throughout our history, wehave invested in our campuses in order to provide attractive and efficient learningenvironments. Our schools offer many amenities found in traditional colleges,including libraries, bookstores and laboratories, as well as the industry-specificequipment necessary for the various programs that we offer.

Our online presence offers a practical and flexible solution for our studentswithout compromising quality. We have made a significant investment in onlineeducation by strengthening our online presence within The Art Institutes, ArgosyUniversity and South University education systems. We have introduced newonline academic programs, strengthened our technology infrastructure, hiredadditional faculty and staff and increased our spending on marketing andadmissions. We intend to continue to invest in the expansion of our onlineprogram offerings and our marketing efforts to capitalize on our well—knownbranded schools in order to expand our online presence. As of July 2009,approximately 26,200 students were enrolled in fully online programs.

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• Strong management team with a focus on long—term performance

Since the Transaction, we have enhanced the depth and experience of our seniormanagement team, recruiting a number of executives with specialized knowledgein key functional areas, such as technology, marketing and finance. The currentexecutive team has been instrumental in directing investments to accelerateenrollment growth and build infrastructure to establish a platform for sustainablelong-term growth. Furthermore, our school presidents and senior operatingexecutives have substantial experience in the sector and have contributed to ourhistory of success.

143. In discussing “Our Growth Strategy,” EDMC spoke to the Company’s historical

efforts to expand enrollment by developing new academic programs and expand existing

programs across EDMC’s “national platform of schools.” EDMC stated, “[i]n addition to

developing new academic programs, we frequently introduce existing academic programs to

additional locations in our national platform of schools, allowing us to drive incremental

enrollment growth, utilize our existing curriculum development in multiple locations, and

capitalize on identified market needs.”

144. EDMC also described its growth strategy as including increasing enrollment in

“online distance learning and blended-format programs,” and pointed to the Company’s past

efforts in that regard. EDMC stated that its “investments in online education have enabled us to

increase the number of students enrolled in fully online academic programs from approximately

4,600 students as of July 2006 to approximately 26,000 students as of July 2009.”

145. In the section, “Management’s Discussion and Analysis of Financial Condition

and Results of Operations” (the “MD&A”), EDMC repeated its description of the Company’s

historical enrollment growth, and further described the relationship between enrollment and

EDMC’s revenues. The Company further stated in the MD&A:

[t]he largest component of our net revenues is tuition collected from our students,which is presented in our statements of operations after deducting refunds,scholarships [awarded by EDMC] and other adjustments. . . . The amount oftuition revenue received from students varies based on the average tuition charge

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per credit hour, average credit hours taken by student, type of program, specificcurriculum and average student population.

The two main drivers of our net revenue are average student population andtuition rates. Factors effecting our average student population include the numberof continuing students attending our schools at the beginning of a period and thenumber of new students entering our schools during such period.

146. EDMC further stated in the MD&A that, “[a] majority of our students rely on

funds received under various government-sponsored student financial aid programs, especially

Title IV programs, to pay a substantial portion of their tuition and other education-related

expenses.”

147. The Registration Statement includes summaries of EDMC’s consolidated

financial and other data for FY 2007 through FY 2009 and EDMC’s results of operations. FY

2007 was the first full year in which EDMC was operated by its private equity investors. These

data include the following:

FY 2007 FY 2008 FY 2009

Net Revenues $1,363,700,000 $1,684,200,000 $2,011,500,000

Net Income $32,400,000 $66,000,000 $104,400,000

Net Cash Flows – Operating Activities $179,900,000 $152,700,000 $293,400,000

Enrollment At Start of Fall Quarter 80,300 96,000 110,800

Average Student Enrollment 77,200 91,9005 107,700

% Revenues from Tuition and Fees 91% 91.7% 91.1%

% Net Revenues from Title IV Programs (not given) 70.2% 81.5%

5 According to the Registration Statement, less than 1% of the growth in Average StudentEnrollment in FY 2008 was due to EDMC’s acquisition of educational institutions. None of thegrowth in Average Student Enrollment in FY 2009 was due to acquisitions.

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148. In a section of the Registration Statement titled, “Business,” EDMC further

describes EDMC’s “Student Recruitment and Marketing” practices. EDMC states:

Our diverse and metrics-based marketing activities are designed to position us asa leading provider of high quality educational programs, build strong brandrecognition for our education systems and disciplines, differentiate us from othereducational providers and stimulate enrollment inquiries. We target a large anddiverse market, including traditional college students, working adults seeking ahigh quality education in a traditional college setting and working adults focusedon the practicality and convenience of online education and career advancementgoals. In marketing our programs to prospective students, we emphasize thevalue of the educational experience and the academic rigor of the programs, ratherthan the cost or speed to graduation.

Our marketing personnel employ an integrated marketing approach that utilizes avariety of lead sources to identify prospective students. These lead generationsources include web-based advertising, which generates the majority of our leads,and further include purchasing leads from aggregators, television and print mediaadvertising, radio, local newspaper, telephone campaigns and direct mailcampaigns. In addition, referrals from current students, alumni and employers areimportant sources of new students. We also employ approximately 250representatives who present at high schools. These representatives alsoparticipate in college fairs and other inquiry-generating activities. In fiscal 2009,our marketing efforts generated inquiries from approximately 3.5 millionprospective students as compared to approximately 2.4 million inquiries in fiscal2008. Marketing and admissions expense represented approximately 21.9% and21.0% of net revenues in fiscal 2009 and fiscal 2008, respectively.

Upon a prospective student’s initial indication of interest in enrolling at one of ourschools, an admissions representative initiates communication with the student.The admissions representative serves as the primary contact for the prospectivestudent and helps the student assess the compatibility of his or her goals with oureducational offerings. Our student services personnel work with applicants togain acceptance, arrange financial aid and prepare the student for matriculation.Each admissions representative undergoes a standardized training program, whichincludes a full competency assessment at the program’s conclusion. Since theTransaction, we have significantly increased our number of admissionsrepresentatives. As of June 30, 2009, we employed approximately 2,600admissions representatives throughout our schools, representing a 180% increasesince June 30, 2006.

149. EDMC further described its “Student Admissions and Retention,” stating:

The admissions and entrance standards of each school are designed toidentify those students who are best equipped to meet the requirements oftheir chosen fields of study and successfully complete their programs. In

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evaluating prospective students, we seek individuals with, among otherthings, a strong desire to learn, passion for their area of interest andinitiative. . . . Most of our schools interview prospective students to assesstheir qualifications, their interest in the programs offered by the school andtheir commitment to their education. In addition, the curricula, studentservices, education costs, available financial resources and student housingoptions, if applicable, are reviewed during interviews. . . .

Our students may fail to finish their programs for a variety of personal,academic or financial reasons. To reduce the risk of student withdrawals,each of our schools devotes staff resources to advising students regardingacademic and financial matters, part-time employment and, if applicable,housing. . . . Our net annual persistence rate, which measures the numberof students who are enrolled during a fiscal year and either graduate oradvance to the next fiscal year, for all of our students was approximately66% in fiscal 2009 as compared to approximately 68% in fiscal 2008 dueprimarily to the increase in fully online students during fiscal 2009.

150. At the time of the IPO, the statements set forth in ¶¶137-149 were materially

untrue and misleading and/or omitted material information necessary to make the statements

made, in light of the circumstances in which they were made, not misleading because: (1) EDMC

did not disclose that its overall current and historical enrollments were materially inflated due to

EDMC’s improper recruiting and enrollment practices; (2) EDMC did not disclose that its

enrollments in longer-term Bachelor’s, Master’s, and Doctoral programs were materially inflated

by EDMC’s improper recruiting and enrollment practices; (3) EDMC did not disclose that its

increased enrollments in online programs were materially the result of the Company’s improper

recruiting and enrollment practices; (4) EDMC’s discussion of factors that purportedly led to

increased student enrollments – such as overall increases in demand for post-secondary

education, program attractiveness, convenience and flexibility, ability to tailor programs to

student demand, enhancements to the student experience, increased visibility and brand identity,

and investments in EDMC’s online programs – did not disclose that EDMC’s enrollments were

materially inflated by the Company’s improper recruiting and enrollment practices; (5) the

details provided about EDMC’s “Student Recruitment and Marketing Practices” did not disclose

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that prior to and at the time of the IPO, EDMC employed improper recruiting and enrollment

practices, including that EDMC paid its admissions staff based on the volume of their

enrollments; (6) in its discussions of “lead generation” and marketing from web-based sources,

and admissions staff communications with prospective students “[u]pon a prospective student’s

initial indication of interest in enrolling at one of our schools,” EDMC did not disclose that it

engaged in aggressive and improper telephone marketing practices that inflated student

enrollments; (7) in its discussion of the growth in the number of “admissions representatives” at

EDMC since 2006, the Company failed to disclose the improper recruiting and enrollment

practices employed by these admissions representatives that were initiated by Defendants

following EDMC’s 2006 acquisition by private equity investors, the high turnover and burnout

rates of admissions representatives at EDMC due to EDMC’s use of admissions quotas tied to

compensation, and the related impact on student enrollments; and (8) EDMC’s discussion of

student persistence rates did not disclose that EDMC counted as “enrolled” students who had not

committed to enrolling in the current academic period.

151. Investors’ decision to purchase EDMC stock in the IPO at $18.00 per share was

directly and materially influenced by Defendants’ untrue and misleading statements and material

omissions described in ¶¶137-149.

2. Additional Untrue Statements and Material Omissions RegardingEDMC’s Academic Program Quality and Graduate Career Placement

152. In addition to Defendants’ materially untrue and misleading statements and

material omissions concerning EDMC’s academic program quality and graduate career

placement set forth in ¶¶137-149, supra, the Registration Statement contained further materially

untrue and misleading statements and material omissions regarding those matters.

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153. In its discussion of “Our Business,” EDMC expressly tied its “favorable financial

characteristics,” including its historically consistent enrollment growth, to EDMC’s historical

rates of graduate employment in relevant fields, stating:

All of these characteristics complement the successful outcomes that wedeliver to our students, as reflected in our student persistence and graduateemployment rates and in student satisfaction survey data. Approximately87% of undergraduate students who graduated from our institutions duringthe calendar year ended December 31, 2008 and were available foremployment obtained a position in their field of study or a related fieldwithin six months of graduation.

154. EDMC further describes its “Graduate Employment” in the Registration

Statement, stating:

We measure our success as an educator of students to a significant extentby the ability of our students to find jobs in their chosen field ofemployment upon graduation from our schools. Most of our schoolsprovide career development instruction to our students in order to assistthe students in developing essential job-search skills. In addition toindividualized training in interviewing, networking techniques andresume-writing, most of our schools require students to take a careerdevelopment course. Additionally, we provide ongoing placementresources to our students and recent graduates. Career servicesdepartments also assist current students in finding part-time employmentwhile attending school. Students in certain of our Doctorate programsspend up to a year in a paid internship in their chosen field.

Each school’s career services department plays a role in marketing theschool’s curriculum to the community in order to produce job leads forgraduates. Career services advisors educate employers about the caliberof our graduates. These advisors participate in professional organizations,trade shows and community events to keep apprised of industry trends andmaintain relationships with key employers. Career services staff visitemployer sites to learn more about their operations and better understandtheir employment needs. As of June 30, 2009, the career servicesdepartments of our schools had approximately 300 full-time employees.We estimate that our career services departments maintain contact withapproximately 70,000 employers nationwide.

Based on information collected by us from graduating students andemployers, we believe that, of the approximately 16,000 undergraduatestudents who graduated from our schools during the calendar year endedDecember 31, 2008, approximately 87% of the available graduates

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obtained employment in their fields of study, or in related fields of study,within six months of graduation. The graduate employment ratespresented in this prospectus exclude students who are pursuing furthereducation, who are deceased, who are in active military service, who havemedical conditions that prevent them from working, who are continuing ina career unrelated to their program of study because they currently earnsalaries which exceed those paid to entry-level employees in their field ofstudy, who choose to stay at home full-time or who are internationalstudents no longer residing in the country in which their school is located.The average salary paid to our available graduating undergraduatestudents from The Art Institutes, the Brown Mackie Colleges and SouthUniversity for calendar year 2008 who obtained employment in their fieldsof study, or in related fields of study, was approximately $30,200.

155. At the time of the IPO, the statements referenced and/or set forth in ¶¶152-154

were materially untrue and misleading and/or omitted material information necessary to make

the statements made, in light of the circumstances in which they were made, not misleading

because prior to and at the time of the IPO: (1) EDMC admissions representatives were

instructed and/or under pressure to overstate the quality or relevance of EDMC’s academic

programs to prospective students; (2) EDMC admissions representatives misrepresented the

prospects for graduate employment in relevant fields to prospective students; (3) EDMC

provided insufficient resources to its institutions’ career services offices necessary to assist

graduates in securing relevant employment; (4) EDMC’s career services personnel were under

quotas and otherwise pressured to count graduates as being “employed” in a relevant field to

meet specified targets; (5) EDMC career services personnel used various practices to overstate

the numbers of graduates deemed to be employed in relevant fields, including by using

“waivers” to remove certain unemployed graduates from institutions’ employment statistics; (6)

EDMC career services personnel overstated graduate salary information by using hypothetical

salary data when graduates reported low salaries; and (7) EDMC’s statements regarding

academic program quality and graduate career placement omitted to disclose the material fact

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that EDMC had a strict policy against hiring graduates from its own institutions to be admissions

representatives.

156. Investors’ decision to purchase EDMC stock in the IPO at $18.00 per share was

directly and materially influenced by Defendants’ untrue and misleading statements and material

omissions described in ¶¶152-154.

3. Additional Untrue Statements and Material Omissions RegardingEDMC’s Incentive Compensation Practices

157. In addition to Defendants’ materially untrue and misleading statements and

material omissions concerning EDMC’s incentive compensation practices for admissions staff

alleged in ¶¶137-149, supra, the Registration Statement contained further materially untrue and

misleading statements and material omissions regarding those practices.

158. In the Registration Statement’s discussion of EDMC’s “Business,” Defendants

describe certain issues involving “Federal Oversight of Title IV Programs.” In this discussion,

EDMC addresses federal “Restrictions on Payment of Bonuses, Commissions or Other

Incentives.” EDMC stated:

An institution participating in the Title IV programs may not provide anycommission, bonus or other incentive payment based directly or indirectlyon success in securing enrollments or financial aid to any person or entityengaged in any student recruiting or admission activities or in makingdecisions regarding the awarding of Title IV program funds. EffectiveJuly 2003, the U.S. Department of Education published regulations toattempt to clarify this so-called “incentive compensation” law. Theregulations identify 12 compensation arrangements that the U.S.Department of Education has determined are not in violation of theincentive compensation law, including the payment and adjustment ofsalaries, bonuses and commissions in certain circumstances. Theregulations do not establish clear criteria for compliance in allcircumstances, and the U.S. Department of Education has announced thatit no longer will review and approve individual schools’ compensationplans prior to their implementation. Although we cannot provide anyassurances that the U.S. Department of Education will not finddeficiencies in our compensation plans, we believe that our current

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compensation plans are in compliance with the HEA and the regulationspromulgated by the U.S. Department of Education.

159. The Registration Statement’s discussion of “Restrictions on Payment of Bonuses,

Commissions or Other Incentives” was substantially identical to a disclosure on the same topic

that was made by EDMC in its Form 10-K for FY 2004, filed before the Company was taken

private by private equity investors in 2006 and nearly five years before the IPO.

160. At the time of the IPO, the statements referenced and/or set forth in ¶¶157-159

were materially untrue and misleading and/or omitted material information necessary to make

the statements made, in light of the circumstances in which they were made, not misleading

because prior to and at the time of the IPO: (1) EDMC set enrollment quotas for its admissions

staff and evaluated each ADA’s performance every six months, at which time the ADA would

have his or her compensation level and quota adjusted based on whether the ADA had satisfied

his or her enrollment quota and the number of students he or she enrolled; (2) EDMC’s

compensation system highly incentivized ADAs to recruit increasing volumes of students; (3) the

incentives in EDMC’s ADA compensation system led to the improper recruiting and enrollment

practices described herein; (4) EDMC’s compensation practices were in violation of the HEA

prohibition on incentive compensation for admissions staff and would be prohibited by the

regulatory changes under consideration by the Department of Education in the negotiated

rulemaking; (5) EDMC failed to disclose the risk that its incentive compensation programs for

admissions staff would not comply with federal law under the repeal of the 2002 “safe harbors”

being addressed by the Department of Education in the negotiated rulemaking; and (6) EDMC

had not updated its disclosures with respect to “Restrictions on Payment of Bonuses,

Commissions or Other Incentives” since 2004 despite the fact that, prior to the IPO, the

Department of Education had begun a negotiated rulemaking that was addressing this topic.

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161. Investors’ decision to purchase EDMC stock in the IPO at $18.00 per share was

directly and materially influenced by Defendants’ untrue and misleading statements and material

omissions described in ¶¶157-159.

VIII. CAUSES OF ACTION UNDER THE SECURITIES ACT

COUNT I(Against EDMC, the Individual Defendants, and the Underwriter Defendants)

Violations of Section 11 of the Securities Act

162. Plaintiffs repeat and re-allege each and every allegation contained in each of the

foregoing paragraphs as if set forth fully herein and further allege as follows.

163. This Count is asserted against EDMC, the Individual Defendants, and the

Underwriter Defendants (herein the “Section 11 Defendants”) for violations of Section 11 of the

Securities Act, 15 U.S.C. § 77k, on behalf of Plaintiffs and all members of the Class who

purchased EDMC common stock in the IPO.

164. EDMC is the issuer of the securities and is liable under 15 U.S.C. § 77k(a). The

Individual Defendants each signed the Registration Statement and the Director Defendants were

directors of EDMC when the Registration Statement became effective and are thus liable

pursuant to 15 U.S.C. § 77k(a)(1)(2) and (3). The Underwriter Defendants were underwriters of

the IPO and are liable pursuant to 15 U.S.C. § 77k(a)(5). This Count is not based on and does

not sound in fraud in connection with the IPO. Any allegations of fraud or fraudulent conduct

and/or motive in connection with the IPO are specifically excluded from this Count. For

purposes of asserting this claim under the Securities Act, Plaintiffs do not allege that Defendants

acted with scienter or fraudulent intent in connection with the IPO, as they are not elements of a

Section 11 claim.

165. The Registration Statement contained untrue statements of material fact and

omitted material facts necessary to make the statements therein not misleading, and failed to

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disclose material facts as described above. EDMC was the Registrant, while the Individual

Defendants were executive officers and/or representatives of the Company who were responsible

for the content and dissemination of the Registration Statement. The Individual Defendants

signed the Registration Statement. As such, EDMC and the Individual Defendants issued,

caused to be issued, and participated in the issuance of the Registration Statement and are subject

to liability for violations of Section 11 of the Securities Act.

166. The Underwriter Defendants were underwriters of the IPO. The Underwriter

Defendants acted negligently and are liable to members of the Class who purchased EDMC

common stock in the IPO.

167. Plaintiffs and other members of the Class who acquired EDMC common stock in

the IPO pursuant to the Registration Statement did not know of the negligent conduct alleged

herein or of the facts concerning the untrue statements of material fact and material omissions

alleged herein, and could not have reasonably discovered such facts or conduct.

168. None of the materially untrue statements or omissions contained herein was a

forward-looking statement but, rather concerned existing and/or historical facts. Moreover, the

Section 11 Defendants named in this count did not properly identify any of these untrue

statements as forward-looking statements and did not disclose information that undermined the

validity of those statements.

169. Less than one year elapsed from the time that Plaintiffs discovered or reasonably

could have discovered the facts upon which this complaint is based to the time that the first

complaint was filed asserting claims arising out of the falsity of the Registration Statement. Less

than three years elapsed from the time that the securities upon which this Count is brought were

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bona fide offered to the public to the time that the first complaint was filed asserting claims

arising out of the falsity of the Registration Statement.

170. Plaintiffs and the other members of the Class have sustained damages. The value

of EDMC’s shares sold in the IPO declined substantially subsequent to and due to the Section 11

Defendants’ violations of Section 11 of the Securities Act.

171. By reason of the foregoing, the Section 11 Defendants named in this Count are

liable for violations of Section 11 of the Securities Act to Plaintiffs and the other members of the

Class who purchased EDMC shares in the IPO pursuant to the Registration Statement.

COUNT II(Against EDMC and the Underwriter Defendants)

Violations of Section 12(a)(2)

172. Plaintiffs repeat and re-allege each of the allegations set forth above as if fully set

forth herein.

173. This Count is asserted against EDMC and the Underwriter Defendants for

violations of Section 12(a)(2) of the Securities Act, 15 U.S.C. § 77l(a)(2), on behalf of Plaintiffs

and all members of the Class who purchased or otherwise acquired EDMC common stock in the

IPO.

174. By means of the Registration Statement, including the Prospectus, EDMC and the

Underwriter Defendants, through the IPO, solicited, offered and sold EDMC common stock to

Plaintiffs and members of the Class.

175. The Underwriter Defendants were sellers, offerors, and/or solicitors of sales of

securities offered pursuant to the Prospectus. The Underwriter Defendants are sellers within the

meaning of the Securities Act because they (a) transferred title to Plaintiffs and other members of

the Class who purchased EDMC common stock in the IPO and (b) solicited the purchase of

EDMC common stock by Plaintiffs and other members of the Class, motivated at least in part by

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the desire to serve the Underwriter Defendants’ own financial interest and the interests of their

client, EDMC, including, but not limited to, commissions on their own sales of those securities.

In so doing, the Underwriter Defendants used the means and instrumentalities of interstate

commerce and the United States mail.

176. The Prospectus contained untrue statements of material fact and omitted other

facts necessary to make the statements not misleading, and failed to disclose material facts, as set

forth above.

177. The Underwriter Defendants owed to Plaintiffs and other members of the Class

who purchased EDMC common stock in the IPO pursuant to the materially untrue and

misleading Prospectus the duty to make a reasonable and diligent investigation of the statements

contained in the Prospectus, to ensure such statements were true and that there was no omission

of material fact necessary to prevent the statements contained therein from being misleading.

The Underwriter Defendants did not make a reasonable investigation or possess reasonable

grounds to believe that the statements contained in the Prospectus were true and without

omissions of any material facts and were not misleading.

178. Plaintiffs and other members of the Class who purchased EDMC common stock

in the IPO pursuant to the materially untrue and misleading Prospectus and did not know, or in

the exercise of reasonable diligence could not have known, of the untruths and omissions

contained in the Prospectus.

179. Plaintiffs and other members of the Class who purchased EDMC common stock

in the IPO have sustained damages as a result of the untrue statements of material facts and

omissions in the Prospectus, for which they hereby elect to rescind and tender their shares of

EDMC common stock to EDMC and the Underwriter Defendants in return for the consideration

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paid for those securities, together with interest thereon. Plaintiffs and members of the Class who

have sold the securities they purchased pursuant to the October Offering are entitled to rescissory

damages.

180. By virtue of the conduct alleged herein, EDMC and the Underwriter Defendants

violated Section 12(a)(2) of the Securities Act.

COUNT III(Against the Individual Defendants)

Violations of Section 15

181. Plaintiffs repeat and re-allege each of the allegations set forth above as if fully set

forth herein.

182. This Count is asserted against the Individual Defendants for violations of Section

15 of the Securities Act, 15 U.S.C. § 77o, on behalf of Plaintiffs and the other members of the

Class who purchased EDMC common stock in the IPO.

183. At all relevant times, the Individual Defendants were controlling persons of the

Company within the meaning of Section 15 of the Securities Act. Each of these Defendants

served as an executive officer or director of EDMC prior to and at the time of the IPO. The

Individual Defendants at all relevant times participated in the operation and management of the

Company, and conducted and participated, directly and indirectly, in the conduct of EDMC’s

business affairs. As officers of a publicly owned company, the Officer Defendants had a duty to

disseminate accurate and truthful information with respect to EDMC’s financial condition and

results of operations.

184. By reason of the aforementioned conduct, each of the Defendants named in this

Count is liable under Section 15 of the Securities Act, jointly and severally with, and to the same

extent as the Company is liable under Sections 11 and 12(a)(2) of the Securities Act, to Plaintiffs

and the other members of the Class who purchased EDMC common stock in the IPO. As a

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direct and proximate result of the conduct of EDMC and the Individual Defendants, Plaintiffs

and other members of the Class suffered damages in connection with their purchase of EDMC

common stock in the IPO.

IX. VIOLATIONS OF THE EXCHANGE ACT

185. Throughout the Class Period, the Exchange Act Defendants, in order to increase

revenues by increasing enrollments, set unrealistic and ever-increasing enrollment goals and

instituted abusive recruiting and enrollment practices, including instituting enrollment quotas and

an improper incentive compensation system for admissions representatives that the Exchange

Act Defendants knew or were reckless in not knowing would lead to the systemic use of abusive

and deceptive recruiting and enrollment practices.

186. Moreover, throughout the Class Period, the Exchange Act Defendants repeatedly

misrepresented EDMC’s compliance with Title IV, including failing to disclose the pervasive

use of abusive and deceptive recruiting and enrollment practices including: misleading

prospective students about tuition costs, academic program quality, accreditation, graduation

rates, and graduate employment prospects and expected salaries and aggressively targeting low-

income and vulnerable populations; using abusive telephone marketing practices; encouraging

students’ and prospective students’ to falsify their financial aid forms; and the improper

incentive based compensation system for admissions representatives, both of which violated

Title IV requirements, and, thus, gravely threatened EDMC’s receipt of federal student aid,

which comprised 81% to 89% of its revenues during the Class Period. Likewise, the Exchange

Act Defendants repeatedly misrepresented EDMC’s current and historical data in connection

with their representations regarding EDMC’s ability to comply with changes to Title IV

regulations being considered by the Department of Education, particularly as to the elimination

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of the “safe harbors” regarding incentive based compensation and the repayment rate method for

demonstrating “gainful employment.”

187. EDMC’s enrollment and revenue figures and its eligibility for Title IV funds, its

primary source of revenue, were important metrics viewed by investors and analysts and

frequently touted by the Exchange Act Defendants in their press releases, filings and conference

calls, boosting EDMC’s stock price following all but one of the Company’s earnings

announcements during the Class Period.

A. The Fraudulent Scheme

1. EDMC Systematically Employed Abusive and Deceptive Recruitingand Enrollment Practices Encouraged By Management andManagements’ Unrealistic Enrollment Quotas and ImproperIncentive-Based Compensation

188. Throughout the Class Period, and concealed from investors, the Exchange Act

Defendants, in order to increase revenues by increasing enrollments, set unrealistic and ever-

increasing enrollment goals and instituted abusive recruiting and enrollment practices, including

instituting enrollment quotas and an improper incentive compensation system for admissions

representatives that the Exchange Act Defendants knew or were reckless in not knowing would

lead to the systemic use of abusive and deceptive recruiting and enrollment practices.

a. EDMC Management Set Unrealistic Enrollment Quotas AndConstantly Monitored Enrollment Numbers And Admissions’Staff Quotas

189. According to numerous former EDMC employees, since 2006, when the

Company was taken private in connection with an acquisition by a consortium of private equity

investors and new management was brought in, including Defendants Nelson and West, and

Senior VP of Marketing and Admissions DiGiovanni, Chief Information Officer Carroll, and

Senior Vice President of Student Recruitment/Enrollment Shah, the focus at EDMC switched

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from education to profits and aggressive recruitment. Since that time and throughout the Class

Period, in order to increase revenue and growth, management set unrealistic goals for enrollment

and instituted aggressive recruiting policies. According to CW9, a former VP of Marketing &

Admissions at EDMC corporate headquarters from 1998 until just before the end of the Class

Period, achieving growth by aggressively increasing enrollments became a major goal for the

Company. As reported by CW 13, once new management came in, EDMC’s primary goal was

achieving increasingly greater volumes of student enrollments and a “radical shift in recruitment

policy” followed that “struck fear” with the EDMC recruiting staff. CW 15 further stated that

Defendant Nelson instituted the improper and abusive recruitment and compensation systems.

190. CW9 reported that EDMC’s senior management, including Defendants Nelson

and West, criticized EDMC’s historical business practices, including that EDMC had “not grown

fast enough,” and was “too cautious” and “not aggressive enough.” CW9 had been historically

involved with the coordination of Marketing & Admissions’ budgeting, forecasting, and strategy,

including “coming up with [the] numbers” for plans and forecasts based on the Company’s prior

performance. According to CW9, when new management came in, including Defendants Nelson

and West, they took over this process and the reports and plans they prepared “did not make

sense” and used numbers that were “overly aggressive” based on CW9’s prior experience with

EDMC’s budgets and performance. CW9 further stated that much of these aggressive forecasts

concerned EDMC’s increasing enrollment of students in online programs through a new, “large

organization” for online recruiting based in Phoenix and Pittsburgh.

191. Likewise, as reported by CW8, a former senior financial analyst at EDMC who

worked with the enrollment goals and numbers on a daily basis, EDMC’s “goals for recruitment

were extremely over aggressive. Their whole budget and objectives were well out of reach” and

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“there was a marketing atmosphere to be aggressive to recruit and to go after as many students as

you can.” CW8 further said that EDMC management set very aggressive goals for the entire

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online division - EDMC’s plan was to double the size of the online division “practically every

year” with the use of “aggressive marketing and aggressive sales people.” EDMC management

kept a close eye on enrollment, and CW8 understood that management knew “hour by hour”

exactly where the online division was in terms of enrollment, with enrollment figures updated

and captured in a computer system that was “kept very current.” In fact, CW8 recalled being in a

meeting with senior management where at 3:00 p.m. there was an announcement that EDMC had

enrolled 87 new students in a certain online program. Likewise, CW 11 said that a number of

regular reports were prepared by the online admissions department for senior management.

There was also a “dashboard” system that showed the total number of student retentions, the

number of students enrolled versus EDMC’s target numbers for enrollment.

192. Further, according to CW7 who recruited ADAs, EDMC aggressively sought to

expand the number of ADAs at the Company, requiring CW7 to hire 50 to 60 new ADAs per

week. CW7 recalled that these hiring targets were set out in an Excel spreadsheet with

“formulas that directly tied the number of ADAs with productivity and for EDMC to make its

earnings numbers.” CW7 recalls having to prepare, every Monday by noon, several Excel

spreadsheets called “Hire and Fire Reports,” “Recruitment Matrix,” and the “Weekly Staffing

Report” that tracked how many ADAs were hired, fired, or quit each week, as well as the weekly

recruiting goal for new ADAs. This data was used to project how many ADAs were needed to

keep up the volume of student enrollments and earnings. All of this information was uploaded to

EDMC’s computer system through a “Recruitment Dashboard” to which only EDMC’s senior-

level managers had access. CW7’s reports were also sent to Online CEO Weiss, the Director of

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Human Resources, and the Vice Presidents of each of EDMC’s online brands for discussion on

conference calls that were held every Monday at noon. Tellingly, according to CW7, despite the

pressure to hire new ADAs, EDMC would not allow its recruiters to work with EDMC’s career

services staff to hire graduates of EDMC institutions, stating, “They were adamant that I not

work with career services [at EDMC schools].”

193. As reported by numerous former EDMC employees from different geographic

regions and business units, including CWs 1, 2, 3, 4, 5, 7, 12, 14, 15, and 16, throughout the

Class Period, recruiting staff were under extreme pressure to meet enrollment quotas at EDMC.

CW 16 recalled that ADAs faced increasing enrollment quotas and that Defendants Nelson and

West pressured directors of admissions, ADAs’ supervisors, to increase enrollments, resulting in

an environment that, “was very frightening, very intimidating” for ADAs. CW 16 recalled that

Defendants Nelson and West would meet with directors of admissions for discussions, “if the

numbers aren’t there.” According to CW16, management’s attitude was, “[i]f you can’t get it

done, we’ll replace you.” CW16 stated that if an ADA didn’t make their quota, then they

would be put on probation and after they missed their quota a third time, they would be fired.

CW 16 recalled being promoted due to having met enrollment targets and that, “the promotion

was not based on experience [or] skill sets, it [was based] upon numbers, and if the people in

your team aren’t producing, then you get demoted.”

194. CW15 also recalled that EDMC set aggressive sales goals for ADAs who “signed

a contract that [they] would hit this sales goal,” adding further that, “there was a ton of pressure

to hit your numbers every month.” CW5 recalled that EDMC management kept close tabs on

each ADA’s performance, and that those that did not meet their quotas were placed on a

probationary period and if they did not get their numbers up, they would be fired. Every week,

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EDMC monitored the enrollment numbers for each ADA, and CW5 recalled attending weekly

meetings with Kate Kelliher, the Admissions Director for the Art Institute and interim VP for

online admissions, and other VPs for admissions at EDMC, at which ADA enrollment numbers

were reviewed and decisions were made as to which ADAs would be disciplined or fired based

on their production. As CW5 described these decisions, “[i]t was all about the numbers.” Bittel

also testified that ADAs at Argosy University were “constantly pressured to deliver a minimum

of two applications per week.” CW2 reported that CW2’s boss stressed the importance of

meeting target enrollments: “make sure you deliver the numbers.”

195. CW 1 described a company-wide meeting in or about November, 2009, attended

by EDMC Online Higher Education CEO Weiss and President Kline where new requirements

for ADAs were instituted adding to the existing enrollment quota system. The changes included

increasing the amount and duration of required telephone contacts with prospective students to

150-200 calls with at least 3-4 hours of “talk time” per day.

b. EDMC’s Improper Incentive-Based Compensation System

196. In furtherance of these unrealistic enrollment quotas, as reported by numerous

former employees from different geographic regions and business units, including CWs 1, 2, 3,

4, 5, 7, 11, 12, 14, 15, and 16, EDMC set ADA compensation levels based on the number of

students that the ADA enrolled. As relayed by CW 10, a former VP of Human Resources, the

compensation system for admissions staffs was developed at the EDMC Corporate level and all

pay raises were approved by EDMC Corporate. CW11, a former VP of Admissions likewise

reported that compensation for admissions representatives was developed by seven to ten high-

level executives, including Vice President of Student Recruitment/Enrollment Shah. It was then

reviewed and approved by EDMC’s senior management, including Defendants Nelson and West.

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Similarly, CW 15 recalled that Defendant Nelson was responsible for implementing EDMC’s

compensation system.

197. EDMC’s compensation system for admissions staff encouraged abusive and

deceptive recruiting and enrollment practices and violated the ban on incentive compensation,

including the “safe harbors.” CWs 1, 4, and 5 described a compensation “matrix” in which ADA

compensation was tied to the ADA’s enrollments. Under the compensation system, admissions

representatives were given a quota of new students they had to enroll each period. Tellingly, as

relayed by CWs 5 and 7, an enrolled student only counted toward the ADA’s quota if the student

also obtained financial aid. According to an internal document and CW1, this compensation

“matrix” was in place prior to and throughout the Class Period.

198. As CW1 reported, compensation for admissions reps was “solely based on how

many students you ran across the finish line.” CWs 1 and 5 reported that, every six months,

ADAs were reviewed and had their salaries re-adjusted based on whether they had met their

enrollment quotas. As CW5 stated, those quotas were “very aggressive.” According to CWs 1

and 5, following those reviews, EDMC would adjust ADAs’ salaries based on whether they had

met their enrollment quotas. Top performers would be required to meet increasingly higher

production targets, including double-digit enrollments for the next enrollment session. CW1

stated that ADAs who failed to meet their quotas saw their salaries cut. As CW 1 stated,

outwardly, EDMC management said that compensation was based on other factors, but this was

not actually true. CW1, who was aware that the “safe harbor” rules precluded EDMC from

paying its admissions staff solely based on enrollments, believed that EDMC’s practices violated

those rules. CW3 likewise relayed that ADA compensation was based on enrollments and that

the other factors that EDMC purported to use in evaluating ADAs were “just fluff.”

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199. As CW4 relayed, when he was hired, South University’s Director of Online

Admissions Segar said, “I can’t pay you on commission but we have something called a matrix.”

Segar then explained how EDMC used the “matrix” system to get around the restriction on

paying commissions in violation of the incentive compensation ban for Title IV funding. CW4

stated that the matrix was, in fact, based on how many students ADAs enrolled into EDMC’s

online programs for each recruitment period. CW4 believed that EDMC’s compensation

practices violated the ban on incentive compensation because ADA’s salaries were based on the

number of enrollments. CW4 also described having been under increasing enrollment quotas

during each successive recruitment period. CW4’s quotas started at 4 students per period and

were raised from 6, to 9, to 11 students per three-month period. By the time CW4 left EDMC,

CW4 had to enroll 30 new students into EDMC’s online programs every three months. If CW4

failed to meet the increasing quotas, there was a risk of a salary reduction: “I had the potential of

losing 15% of my salary if I didn’t meet the performance goals.”

200. CW2 also described EDMC’s points-based system that awarded points for each

student that an admissions representative enrolled. As CW2 further stated, at the end of each

recruiting period, “these points were tallied up and this determined your salary.” CW2 further

reported that, “the way compensation was structured at EDMC put a lot of pressure on

admissions reps to recruit as many students as they could,” and that “[w]e were compensated

based on how many students you start.”

201. CW 15 also recalled how ADA compensation was set by particular enrollment

quotas, recalling, “they had a chart, and depending on how much money you wanted to make

was your quota that you had to get.” According to CW16, these enrollment quotas were directly

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tied to ADA compensation, recalling that, “[y]ou can make so much . . . money, 70, 80, 90k –

you’re paid based on people you brought in.”

202. CW 12 recalled that EDMC’s enrollment-based compensation could be

substantial, noting that, “[s]ome enrollment people were making more than their bosses because

they made their quotas. Some made six-figure salaries.” CWs 1, 4, and 5 also described how

admission representatives received substantial increases in their compensation after short periods

of time due to having met or exceeded enrollment quotas.

c. EDMC’s Systemic Abusive and Deceptive Recruiting andEnrollment Practices

203. In order to meet these unrealistic enrollment quotas, encouraged by the improper

incentive based compensation and in furtherance of the aggressive recruitment policies of EDMC

senior management, admission representatives systematically engaged in abusive and deceptive

practices in recruiting prospective students and encouraged students to falsify their financial aid

forms in order for them to qualify for federal aid, in violation of Title IV, as ultimately disclosed

in connection with the GAO Report and HELP Committee hearing. According to the Bittel

Letter, “all that was testified to in the [HELP Committee] hearings was not only very true, but a

companywide policy [throughout EDMC].” As further relayed by numerous former EDMC

employees from different geographic regions and business units, including CWs 1, 2, 3, 4, 6, 7,

12, 13, 14, 15 and 16, and current employee Bittel, EDMC used abusive and deceptive tactics to

recruit prospective students to enroll in EDMC’s programs. CWs 1, 4, 6, 7, 12, 14, 15, and 16

described how EDMC regularly made misrepresentations to students, including in regard to the

academic obligations of EDMC’s programs, financial aid repayment obligations, availability of

federal grants and qualification for federal student assistance, the full cost of EDMC’s programs,

the quality of EDMC’s programs, and the career prospects after graduation.

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204. CW15 recalled that ADAs were instructed to put pressure on prospective students

and exploit their vulnerabilities, “[w]e were told [by supervisors] to ‘make [prospective students]

feel the pain, make them feel the pain.’” CW15 further recalled receiving e-mails and attending

a week-long training in Cincinnati on “making people feel the pain.” As part of this pressure

tactic, CW15 recalled using details about vulnerable prospective students’ personal lives to

pressure them into enrolling. ADAs would use an “interview process” script that enabled the

ADA to “summarize back to them in [a] bleak picture, to make them feel the pain, to make them

cry, no one has ever been turned away, as long as you want to sign on the dotted line and you can

get financial aid, you are in.” For example, CW 15 described a prospective student with a child

and AIDS that was told, “now more than ever you need an education, for what time you have left

here, get a job where they might have life insurance, get a job where you can get health

insurance.” CW15 also stated that Defendant Nelson instituted the recruitment practices and

policies.

205. CW 16 recalled that part of EDMC’s sales training involved overstating the career

opportunities available to graduates and overstating the help graduates would receive from

EDMC’s career services personnel. CW16 said, “they wanted us to paint a visual for these

people . . . they’d [have us] say ‘. . . ya know, after you finish this program, pause, aren’t you

looking for the perfect job? Don’t you think, to be a counselor, wouldn’t it be great? One of the

great benefits for you as a student is our career service, they’ll help you, they have umpteen

amount of places they can refer you to.” According to CW 16, however, career services at

EDMC were of little value, “[c]areer services was four people who basically go on monster.com

and indeed.com, they have no connections.” CW16 further recalled that EDMC provided

training to ADAs to, “convince people, sometimes have them on the phone for three hours, [we

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would] would wear them down to get them to apply.” CW 16 also recalled that supervisors

encouraged ADAs to use such tactics as telling prospective students that the ADA’s supervisor

had waived the $50 application fee for the prospective student because the supervisor thought the

prospective student would “be such a good student.” In fact, however, the ADA had not spoken

to the supervisor about the prospective student and supervisor approval was not required for the

ADA to waive an application fee.

206. CW 16 also recalls having been pressured to enroll vulnerable students that were

unprepared for college level study. For example, CW16 recalled having been pressured by a

supervisor to enroll a prospective student who was “not ready to go to school” according to her

psychiatrist, with the supervisor telling CW 16, “you should have closed her. . . why didn’t you

get her into a program?”

207. CW4 recalled EDMC using “heavy sales recruiting tactics” to get students to

enroll in online courses, and stated that, for example, “I was encouraged to not tell people what

the cost of the school was in actuality.” Similarly CW15 described how the training EDMC

provided to ADAs encouraged them to answer prospective students’ questions evasively when

the “real answer” would discourage enrollment. For example, CW15 stated that if ADAs were

asked if Brown Mackie’s credits would transfer to another institution, “the real answer is ‘no

college will take our credits,’” but instead, “what we would say is, ‘this course is designed for

you to enter the job market,’ . . . ‘if you do plan on transferring, contact that school.’” Similarly,

with respect to questions about career prospects for graduates, CW 15 described that, “[w]e

would just tell them, you can go onto the web and punch it in, and see what numbers you come

up with, [but they] spend $40k with us and can get an $8/hour medical assistant job, but we can’t

tell them that.” CW 15 further recalled that ADAs would be reprimanded for telling prospective

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students that the majority of tuition costs would need to be paid using loans rather than grants,

that federal student loans were not dischargeable in bankruptcy, or that defaulting on student

loans could prevent the student from obtaining a mortgage.

208. CW 15 also recalled the if a prospective student changed his or her mind about

enrolling, ADAs told the student that they had to come to the office to sign paperwork.

According to CW 15, there was no paperwork to sign. Rather, this was a tactic to get the student

in the door for additional pressure from a senior director of admissions.

209. Current employee Bittel provided testimony to the Senate HELP Committee about

how EDMC’s admissions staff would use high-pressure tactics to get prospective students to

enroll, including by making repeated and persistent telephone calls to prospective students.

CW12 recalled that “[t]he admissions reps tell [prospective students] exactly what they want to

hear” about EDMC’s academic programs. Similarly, CW 14, a former recruiting agent at EDMC,

recalled that EDMC recruiters were instructed to “make the program sound like it is more

effective than it is” and “make it sound exciting.” CW 16 also described how ADAs were trained

to overstate career services available to graduates and “paint a visual” for prospective students to

sell them on the hope of a “perfect job” in their dream field.

210. Additionally, CW 1 relayed hearing ADAs encourage students to cheat on

required college placement exams – recalling that ADAs told students “I don’t care who takes

your college placement exam.” CW 1 further reported hearing ADAs promise students that they

would receive financial aid and not have to pay it back, including telling students that they could

default on student loans and write them off, and telling graduate-level students that they were

eligible for Pell grants. CW1 also heard ADAs misrepresent students’ homework obligations

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and need to buy books or course materials. According to CW1, “[t]hey didn’t care as long as

they got students in. It was all about the [compensation] matrix.”

211. CW7 conducted exit interviews of ADAs and recalled hearing from ADAs that

“[t]here were a lot of people who were asked to do things [that were] unethical.” CW7 described

how ADAs complained of being asked to lie or give misinformation when students applied for

financial aid so that the ADAs could meet their quotas, including, “I heard that many times the

ADAs . . . were asked to prepare [prospective students] about what to tell financial aid.” CW7

also described ADAs having complained, “I can’t do this to people. [Students] don’t know what

they’re getting into. It’s too expensive.” CW7 also stated that “[i]t was a disgrace what

[EDMC] charged people to get what was essentially a valueless degree.”

212. CW 1 described being coached on what to tell students when filling out their

FAFSA forms. CW1 also reported having witnessed financial aid staff direct prospective

students to file revised tax returns if “EDMC didn’t like the information presented in their taxes.”

Such students were told to file tax revisions on an IRS form 1040-X, with EDMC asking the

student to change the ages of their dependents, amounts of money earned by students or

dependents, and/or whether the student was living with a parent that could be considered a

dependent.

213. According to CW6, a former Associate Director in the financial aid department,

during a conference call some time after October, 2009, with 93 other financial aid counselors

and financial aid directors from EDMC’s various schools, one of the counselors asked a question

about whether a student could claim her three undocumented, non-citizen children as dependents

on a FAFSA form to qualify for more federal student aid when the student had not claimed those

children as dependents on her tax return. CW6 recalled that Andre Jagot, EDMC’s regional

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compliance trainer, told the financial aid counselor that it would be fine to do so. After the call,

CW6 presented documentation to Justin McLaughlin, the financial aid director at South

University’s Tampa campus, showing that Jagot was wrong in his conclusion and that the student

would not be in compliance with federal regulations. McLaughlin, who CW6 described as

“notorious for turning his head,” nonetheless said that the student could claim the additional

dependents. CW6 also described having discovered that, in October 2009, several graduate

students receiving direct loans from the Department of Education were receiving $6,000 above

the typical amount of aid awarded to students in the program. CW6 brought these over-awards

to McLaughlin’s attention and told him, “I don’t think this meets the criteria – we’re over-

awarding the students.” McLaughlin ignored CW6’s finding, and the over-awards continued

through CW6’s departure from the Company in April 2010. CW6 is aware from contacts with

current employees at South University that the government eventually discovered these over-

awards and required EDMC to return $250,000 in over-awarded grants.

214. Further, CWs 3 and 5 and current employee Bittel further described how EDMC

would target economically or otherwise disadvantaged individuals who ADAs would lure with,

among other things, promises about the availability of federal student assistance. CW3 recalled,

“it was [ADAs’] job to talk [students] into [enrolling,]” including “[people who] would never be

able to pay for their education.” Bittel testified that, “high-pressure sales tactics are being used

to recruit individuals from the lower-income sector of our population as they are eligible for the

most amount of [federal student] aid.” The Bittel Letter further stated that one of her co-workers

“also attempted to enroll gentlemen in homeless shelters and programs for the underprivileged,”

and that Bittel “was encouraged to enlist a woman hiding out in a battered women’s shelter to go

to the library and attend her classes.” Similarly, CW5 recalled EDMC focusing on “enrolling

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everybody it could,” including students with special needs that “barely passed high school . . .

[and] would never pass in this college environment.”

215. Current employee Bittel also provided extensive testimony to the Senate HELP

Committee about how EDMC’s main goal was student recruitment, with little attention to

helping its graduates find employment. Bittel testified that EDMC devoted substantially more

resources to recruiting and enrollment than career placement, including describing “a systemic

problem here when there are only nine [career services] employees servicing the students that are

being recruited by an admissions workforce of almost 1,600.

d. EDMC Manipulated Its Graduate Employment andEnrollment Figures

216. During the Class Period, EDMC also engaged in manipulation of its enrollment

figures and graduate placement figures - figures demonstrating “gainful employment.”

217. CW8 recalled believing that EDMC’s system for reporting enrollment data was

not subject to internal controls that were “true and accurate.” According to CW8, EDMC

counted students as “enrolled” when they had been enrolled during the previous semester but had

not decided to enroll in any classes in the current semester. CW8 believed that such students

should not have been counted as enrolled as they were not “technically” enrolled in the current

semester.

218. Further, current employee Bittel testified and wrote in the Bittel Letter that

EDMC’s career placement statistics were manipulated to count graduates as “gainfully

employed” for the purposes of the Company’s reported figures that should not have been so

counted. These tactics included using estimated average salaries rather than graduates’ actually

reported earnings, manufacturing emails from graduates to “say whatever it needed to say, to

justify placement,” using “waivers” to avoid counting unemployed or underemployed graduates

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in EDMC’s employment statistics, and counting as “employed” graduates who had worked at a

job “for merely one day.” These tactics also included extremely manipulating graduates’ job

descriptions to have them included within the definitions of “field related employment,” such as

convincing a Graphic Design graduate working at Starbucks that she was “using her skills” by

making signs for daily specials.

219. As Bittel further testified, like ADAs, career services staff also were required to

meet “quotas” – these quotas were based on the number of graduates each career services

employee reported as “gainfully employed” – and their compensation was tied to meeting these

quotas. According to Bittel, the reported graduate placement numbers are “not realistic

numbers.” As Bittel further described, after she reported to her manager that a co-worker had

falsified student employment information, the co-worker was not disciplined and actually

received an award shortly thereafter. As Bittel stated, “the way she took it” was that EDMC

encouraged this type of manipulation. In fact, as Bittel further testified, EDMC career services

had weekly “brainstorming meetings” attended by the EDMC career services advisors and

supervisors throughout the EDMC system where “angles” would be developed to fit graduates

who were not adequately employed into the gainfully employed statistics.

220. CW15 also recalled that career placement statistics at EDMC were misleading,

including that the school reported a graduate as placed when, “they could have been in that job

for just one day” and also that definitions of relevant employment were stretched. “[I]f you had

a business administration or management degree and you ended up as a manager of a Circle K

[convenience store], they included that in the statistics saying that’s management.”

2. Misrepresentations Regarding Changes to Title IV Regulations

221. As discussed above, prior to and throughout the Class Period, certain changes and

enhancements to Title IV regulations were being considered by the Department of Education,

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including eliminating the “safe harbors” related to the ban on incentive compensation for

admissions and financial aid personnel and adding standards to the requirement that certain

programs, including those at proprietary colleges, demonstrate that its graduates are finding

“gainful employment” in their field. These impending changes were widely reported and

publicized and investors and analysts were acutely focused on their impact on for-profit

education providers, including EDMC, as they had the potential to materially impact schools’

eligibility for Title IV aid and, thus, their revenues.

222. However, as detailed below, throughout the Class Period, the Exchange Act

Defendants continually misrepresented the impact of the regulatory changes on EDMC and its

then-present metrics related to these regulations. The Exchange Act Defendants repeatedly

stated that EDMC would be able to comply with the elimination of the “safe harbors,” yet

concealed the fact that its current compensation system was actually in violation of the current

ban on incentive compensation, including the “safe harbors,” and would therefore also be in

violation once the “safe harbors” are removed.

223. Further, as to the enhancements to the “gainful employment” regulations, by

February, 2010, and throughout most of the first half of 2010, the Department of Education was

considering requiring programs to demonstrate a debt to income ratio of 8% or a 90% repayment

rate on Title IV loans among a program’s graduates in order to satisfy the “gainful employment”

requirement. As to the loan repayment rate threshold, a loan would not be considered in

repayment if it was delinquent, in default, in deferment or in forbearance. Thus, analysts and

investors were intently interested in EDMC’s repayment rate, particularly as EDMC’s programs,

especially the Art Institute’s programs, were considered unlikely to produce the necessary post-

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graduation earnings relative to the cost of the programs to stay within the 8% debt to income

ratio.

224. As discussed below, however, in their discussions of the “gainful employment”

regulations and the 90% repayment rate during the Q2 FY 2010 and Q3 FY 2010 earnings

conference calls, Defendants Nelson and West made several false and misleading statements

suggesting that EDMC’s current and historical repayment rates met the 90% repayment rate

threshold. Specifically, in connection with their discussions of the pending “gainful

employment” regulations and the repayment rate thresholds being considered by the Department

of Education, Defendants Nelson and West repeatedly stressed EDMC’s low “cohort default

rates,” including EDMC’s draft 2008 cohort default rate of 7.5%, to suggest that EDMC’s

repayment rates were correspondingly high and, thus, exceed a 90% threshold. What Defendants

Nelson and West misleadingly failed to disclose, however, is that “cohort default rates” are in no

way comparable to repayment rates. Specifically, cohort default rates measure default only, and

do not include loans that are not “in repayment” because they are in deferment, forbearance,

delinquent or are otherwise not being repaid. Thus, Defendants Nelson and West misled the

market with their use of the incomparable cohort default rates.

225. Subsequently, on July 23, 2010, the Department of Education released its

proposed regulations regarding the “gainful employment” requirement, lowering the 90%

repayment rate threshold it had previously considered to 45%. Under the proposed rules,

programs will be fully eligible if at least 45% of the principal of the loans of former students is

being paid down or if its graduates have debt to income ratios of less than 20% of discretionary

income or 8% of total income. A program will become ineligible to offer government financial

aid to students if less than 35% of the principal of the loans of former students is being paid

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down and if its graduates have a debt to income ratio above 30% of discretionary income and

12% of total income. Further, programs that fall between these eligibility measures will be

restricted. Restricted programs will have enrollment growth limits and be required to

demonstrate employer support for the program and warn consumers and current students of high

debt levels.

226. At EDMC’s earnings conference call following the release of the proposed rules,

the Q3 FY 2010 earnings conference call, Defendants Nelson and West, for the first time,

disclosed additional “metrics” relative to EDMC’s repayment rates - disclosing information

regarding EDMC’s defaults, deferment, and forbearance rates. Defendants Nelson and West

stated that these figures totaled approximately 36.6% across EDMC and suggested a

corresponding repayment rate of approximately 63.4%, well above the 45% rate in the proposed

rules. Thus, Defendants Nelson and West again misleadingly suggested EDMC’s repayment

rates were above the relevant threshold. Further, the fact that such metrics were not disclosed on

the earlier calls when the Department of Education was considering a 90% repayment further

evidences their intent to mislead investors as to EDMC’s repayment rate.

227. As ultimately revealed on the last day of the Class Period, EDMC’s average

repayment rate is approximately 38%, well below the figures misleadingly suggested by

Defendants Nelson and West during the conference calls on February 10, 2010, May 5, 2010 and

August 12, 2010.

3. The Exchange Act Defendants Concealed a Material Related PartyTransaction With an Affiliate of Goldman Sachs Capital Partners

228. Throughout the Class Period, the Exchange Act Defendants concealed the fact

that Goldman Sachs Credit Partners, an affiliate of Goldman Sachs Capital Partners, was a major

creditor to EDMC. The Exchange Act Defendants concealed that Goldman Sachs Credit

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Partners was a major lender under both the term loan facility that had been used to finance

EDMC’s private equity shareholders’ leveraged buyout in the 2006 Transaction, and EDMC’s

$422.5 million revolving credit facility. As described at ¶¶118-131 above, supra, EDMC’s

indebtedness to Goldman Sachs Credit Partners was a material related party transaction that

existed as of time of the IPO. The Exchange Act Defendants concealed this relationship in the

Registration Statement and continued to do so throughout the Class Period.

229. Goldman Sachs Capital Partners and its affiliates were able to exert significant

control and influence over EDMC throughout the Class Period. Goldman Sachs Capital Partners

was EDMC’s largest shareholder throughout the Class Period, holding more than a third of

EDMC’s common stock. Goldman Sachs Capital Partners and its affiliates were also connected

to three members of the EDMC board of directors, including Securities Act Defendants Jones (a

Managing Director at Defendant Goldman Sachs) and Mullin (a senior advisor to Goldman

Sachs Capital Partners), and Mick J. Beekhuizen (a Vice President in the Merchant Banking

Division of Defendant Goldman Sachs) who became a member of the EDMC board following

the IPO.

230. As revealed to the market in an August 5, 2010 Business Week article, “Goldman

Schools Students on Debt,” EDMC owed a substantial debt to its private equity shareholders.

The article also described that this debt was a material factor related to EDMC’s aggressive

enrollment growth goals and strategies that, in turn, led to abusive and deceptive recruiting and

enrollment practices. The Business Week article cites EDMC’s former CFO, Robert T.

McDowell, as recalling, “[t]he debt from the acquisition changed the culture of EDMC,” and that

McDowell was “worried that the quality of the experience for employees and students was going

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to deteriorate.” McDowell is further quoted as stating, “[y]ou take on that amount of private-

equity debt, you need to earn high rates of return for these investors.”

231. The Company confirmed this related party transaction in a post-Class Period

statement. On December 6, 2010, EDMC filed a Form 8-K regarding an extension of the

maturities of the term loan facility and revolving credit facility in which it stated that Goldman

Sachs Credit Partners L.P, an affiliate of Goldman Sachs Capital Partners, is one of the lenders

under the Company’s revolving credit facility and term loan. GAAP requires that entities

disclose material related party transactions. FASB Accounting Standards Codification 850

(“ASC 850”) articulates the applicable GAAP standard for disclosures of related party

transactions for periods ending after September 15, 2009. 6 ASC 850 applies to transactions

between, among other parties, “[a]n entity and its principal owners” and “affiliates.” ASC 850-

10-10-1 states:

Information about transactions with related parties that would make a differencein decision making shall be disclosed so that users of the financial statements canevaluate their significance. Therefore, this Topic establishes requirements todisclose certain significant related party transactions and control relationships.Relevant information is omitted if the disclosures required by this Topic are notmade. [Boldface in original.]

232. The glossary at ASC 850-10-20 defines “Principal Owners” to include “owners of

record or known beneficial owners of more than 10 percent of the voting interests of the entity.”

An “Affiliate” is defined as “a party that, directly or indirectly, through one or more

intermediaries, controls, is controlled by, or is under common control with an entity.” ASC 850-

10-20 further defines “Related Parties” to include:

a. Affiliates of the entity . . .

6 According to FASB’s June 2009 Statement of Financial Accounting Standards 168 (“SFAS168”), the applicable GAAP for financial statements issued for interim and annual periodsending after September 15, 2009 is codified in the FASB Accounting Standards Codifications(“ASC”). For these periods, the ASC replaces existing FASB guidance, including SFAS 57.

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d. Principal owners of the entity and members of their immediate families . . .

f. Other parties with which the entity may deal if one party controls or cansignificantly influence the management or operating policies of the other to anextent that one of the transacting parties might be prevented from fully pursuingits own separate interests.

g. Other parties that can significantly influence the management or operatingpolicies of the transacting parties or that have an ownership interest in one of thetransacting parties and can significantly influence the other to an extent that oneor more of the transacting parties might be prevented from fully pursuing its ownseparate interests.

233. ASC 850-10-50-1 states:

Financial statements shall include disclosures of material related partytransactions . . . . Those disclosures shall include:

a. The nature of the relationship(s) involved

b. A description of the transactions . . . for each of the periods for which incomestatements are presented, and such other information deemed necessary to anunderstanding of the effects of the transaction on the financial statements

c. The dollar amounts of the transaction for each of the periods for which incomestatements are presented and the effects of any change in the method ofestablishing the terms from that used in the preceding period

d. Amounts due from or to related parties as of the date of each balance sheetpresented and, if not otherwise apparent, the terms and manner of settlement[Boldface in original.]

234. The Exchange Act Defendants’ concealment of the related party transaction with

Goldman Sachs Credit Partners throughout the Class Period therefore violated their disclosure

obligations under GAAP and the securities laws.

B. The Exchange Act Defendants’ Material False and Misleading Statementsand Omissions

1. The Registration Statement

235. Plaintiffs repeat and reallege each of the materially false and misleading

statements and omissions in the Registration Statement as set forth above in ¶¶92-134, 136-161,

and for the reasons set forth in ¶¶92-134, 136-161, as if fully set forth herein. In addition to the

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false and misleading statements and omissions set forth in the Registration Statement, each of

which was made with scienter by the Exchange Act Defendants and is actionable under the

Exchange Act, the following false and misleading statements and omissions were made with

scienter during the Class Period.

2. First Quarter Fiscal Year 2010

236. On November 4, 2009, EDMC issued an earnings release for the first quarter of

fiscal year 2010, touting its increase in enrollment and revenues:

For the first quarter of fiscal 2010, net income was $15.8 million, or $0.13 perdiluted share, an increase of $19.1 million from the quarter ended September 30,2008. Net revenues rose 23.1% to $534.4 million from the first quarter of fiscal2009.

Todd S. Nelson, Chief Executive Officer of Education Management, commented,“We are reporting record student, revenue and EBITDA results for our first fiscalquarter.”

***

Net revenues for the three months ended September 30, 2009 increased 23.1% to$534.4 million, compared to $434.2 million for the same period a year ago. Thisincrease was primarily driven by a 23.1 % increase in July student enrollment.

For the first quarter of fiscal 2010, net income for the quarter grew to $15.8million, or $0.13 per fully diluted share, compared to a net loss of $(3.3) million,or $(0.03) per fully diluted share, for the same period a year ago. Earnings beforeinterest, taxes, depreciation and amortization (EBITDA) increased 52.6% from$59.4 million in the first quarter of fiscal 2009 to $90.6 million in the first quarterof fiscal 2010 primarily due to higher student enrollment.

237. The November 4, 2009 earnings release went on to further tout EDMC’s

enrollment growth, “At the start of the current October quarter (second quarter of fiscal 2010),

total enrollment at our schools was over 136,000 students, a 22.7% increase from the same time

last year. Same-school enrollment (schools with enrollment for one year or more) increased

22.1% to over 135,300 students. Students enrolled in fully online programs increased 60.0% to

approximately 31,200 students.” The release further, stated, “We are committed to offering

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quality academic programs and continuously strive to improve the learning experience for our

students.”

238. The same day, on November 4, 2009, EDMC held an earnings conference call.

During the call, Defendant Nelson stressed EDMC’s reputation, commitment to its students,

growth, quality and compliance, stating:

Being one of the largest and most diverse for profit post secondary educationcompanies, it’s important to maintain an excellent reputation, which we believewe have achieved through our commitment to student and graduate success and acritical focus on academic quality. We meet the needs of our students by offeringa very diverse set of programs across all degree levels and delivery methodsthrough four highly-recognized and respected school brands. []diversification bydesign is our blueprint for sustainable growth. We have built around our desire toserve a large portion of the higher-education market, from art and design to healthand behavioral sciences to business and education with four high-quality andwell-recognized education systems, each focused on unique offerings anddifferent student demographics. Over the past three years we’ve made significantinvestments in our business to support our long-term growth. These investmentsin new locations and programs – online, technology, and marketing andadmissions – have laid a strong and stable foundation for long-term sustainablegrowth. We believe we have the ability to serve many more students whilecontinuing to focus on a reputation for academic quality and compliance. Ourreputation has been achieved through a long-established culture of doing thingsthe right way.

239. During the November 4, 2009 call, Defendant Nelson further emphasized

EDMC’s enrollment growth and growth strategy:

We experienced strong enrollment growth across all four of our educationsystems for our recent October start. We recorded record enrollment of over136,000 students, an increase of 22.7% over the prior-year period. This growthwas achieved across all academic disciplines and degree levels and supported byfully online enrollment growth of 60% to over 31,000 students, or approximately23% of our total student population. Over 60% of our students were enrolled inbachelors or graduate degree programs and spread across many programdisciplines. Excluding the six locations less than a year old same-schoolenrollment increased 22.1 %. And finally, new students for the three-month periodended September 2009 increased by 28.7%, over the prior-year period.

Now I’d like to update you on our growth strategy, and as you know, we havethree primary elements to this strategy, including online education, new locationsand new programs. As demonstrated in the strong online enrollment we reported

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again this quarter, we are pleased with the organization, platform andinfrastructure that are in place to support future growth. Led by John Kline, whohas significant experience building and operating large online organizations, weare well positioned to grow our online platform to serve thousands of additionalstudents while achieving improved efficiencies and greater margin expansion.Further, we continue to develop new programs to offer in an online deliveryformat. We now offer 55 fully online academic programs across three of oureducation systems, ranging from doctoral programs to bachelors and associatesprograms.

240. During the November 4, 2009 call, Defendant Nelson also discussed the

purported placement rates and success of EDMC graduates:

Now I’d like to provide you an update on our quality metrics. We foster anenvironment to help our students succeed, both academically and professionally.We strive to help our students stay in school and complete their education.Persistence through September 30th for both on ground and online was up slightlyfrom last year. In addition we regularly review our programs with industry andacademic professionals to ensure that curriculum are meeting the needs of anever-changing workplace and our career services department maintainsrelationships with approximately 70,000 employers. Approximately 86% of ourundergraduate students for available employment who graduated during thequarter ended this past March were employed in the field – or related fields withinsix months of graduation.

The average starting salaries for graduates from our undergraduate programs forthe quarter ended this past March, bachelors degree students obtain an averagesalary of $33,000, while graduates from associates and diploma programs earn$28,000. We also see good results across our graduate-level programs, with thosegraduating students from South University and Argosy University attaining evenhigher salaries. Based on survey results received from the recent graduates theaverage salary for graduates from our masters and doctoral programs wasapproximately $48,000. We’re very pleased with these results, particularly givendifficult employment market.

241. Further, during the November 4, 2009 call, Defendant West reported EDMC’s

financial results based on increased enrollment: “For the first quarter ended September 30th net

revenues were $534.4 million, up 23.1% versus the prior year, EBITDA was up 52.6% and we

had net income of $15.8 million, or $0.13 per share, which was an increase of $19.1 million from

last year. The revenue increase was driven by the July enrollment increase of 23.1 % . . .

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EBITDA was up 52.6% to $90.6 million for the quarter versus $59.4 million last year. EBITDA

margin was up 328-basis points to 16.9% for the quarter.”

242. During the November 4, 2009 call, in response to a question from a Morgan

Stanley analyst regarding the negotiated rulemaking sessions, Defendant Nelson responded, that

“we’re monitoring it, and “it’s about exactly as we expected.” Defendant Nelson further stated,

“the main takeaway we have is that each of these issues, at least to this point, are things that we

feel that we can manage.”

243. Further, during the November 4, 2009 conference call, a Piper Jaffray analyst

inquired specifically about the hiring of admissions representatives, asking, “I know over the

past several years you ramped up your admissions reps quite significantly across the various

brands and as you look at the results that you see on the enrollment side, which are very good,

are you planning to now curtail that growth, pull that back some, or how should we think about

the growth of the admission reps in fiscal 2010?” Defendant Nelson responded:

First off, initially we were behind so we needed to right size the enrollment staffand so they were added at a much more rapid rate, and now going forward what –and we’re also seeing now slight productivity increases with our enrollment staff,which is very encouraging. And so going forward what you'd expect is a little –projected on your expected growth rate to have your increase in hiringapproximately mirror that same number of new student growth. So in realnumbers it continues to go up percen – the percentage year-over-year increasewill be coming down.

244. Further, on the November 4, 2009 call, in response to a question from an analyst

from Merrill Lynch requesting “a bit of background on how you pay your enrollment advisors;”

Defendant Nelson replied that EDMC’s compensation system was compliant with Title IV,

stating:

Sure. Actually there’s a lot of consistency between education systems and there’sa myriad of factors that are taken in to consideration that are very consistent withthe Safe Harbor language that’s out there that range from quality activities, as

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well as enrollment-related activities and, again, that’s monitored very carefully,it’s been reviewed by regulatory council to make sure it’s compliant. And wecontinue to monitor what’s going on in Neg. Reg. there, as well. Our feeling isthat if there are changes our belief is that won’t hurt productivity because it’salready, as you know, highly restricted.

245. Also on the November 4, 2009 earnings call, Defendant West described EDMC’s

indebtedness and loan facilities, stating that after the IPO, EDMC’s “revolving credit line now

stands at $442.5 million.” West further stated that EDMC’s “[l]ong-term debt at September 30th

was $1.9 billion.” Further in connection with the IPO, West stated that EDMC had used the net

proceeds from the IPO for a “bond tender offer” completed in connection with the IPO and for

“the termination of a management advisory agreement with affiliates of certain shareholders.”

Later on that call, in response to a question from analyst Sara Gubins about whether EDMC had

plans to pay down any more of its debt, West stated that, “obviously on cash flow flow [sic]

comes in we evaluate the highest and best use to maximize the return for the shareholders here

and as we see the excess cash flow, as that’s generated, we will make decisions.”

246. Subsequently, on November 10, 2009, EDMC filed its Form 10-Q for Q1 FY

2010. It was signed by Defendant West and certified by Defendants Nelson and West. The

Form 10-Q for fiscal Q 1 2010 stated, “our chief executive officer and chief financial officer have

concluded that the Company’s disclosure controls and procedures are effective.” It also

contained signed Rule 13a-14(a)/15d-14(a) and SOX certifications by Defendants Nelson and

West attesting to the accuracy and completeness of the Company’s financial and operational

reports contained therein and its internal controls and procedures.

247. The Rule 13a-14(a)/15d-14(a) certifications in the Form 10-Q for fiscal Q1 2010

signed by Defendants Nelson and West stated:

2. Based on my knowledge, this report does not contain any untrue statement ofa material fact or omit to state a material fact necessary to make the statements

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made, in light of the circumstances under which such statements were made,not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financialinformation included in this report, fairly present in all material respects thefinancial condition, results of operations and cash flows of the registrant as of,and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishingand maintaining disclosure controls and procedures (as defined in ExchangeAct Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused suchdisclosure controls and procedures to be designed under our supervision,to ensure that material information relating to the registrant, including itsconsolidated subsidiaries, is made known to us by others within thoseentities, particularly during the period in which this report is beingprepared;

b) Evaluated the effectiveness of the registrant’s disclosure controls andprocedures and presented in this report our conclusions about theeffectiveness of the disclosure controls and procedures, as of the end ofthe period covered by this report based on such evaluation; and

c) Disclosed in this report any change in the registrant’s internal control overfinancial reporting that occurred during the registrant’s most recent fiscalquarter (the registrant’s fourth fiscal quarter in the case of an annualreport) that has materially affected, or is reasonably likely to materiallyaffect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on ourmost recent evaluation of internal control over financial reporting, to theregistrant’s auditors and the audit committee of the registrant’s board ofdirectors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design oroperation of internal control over financial reporting which are reasonablylikely to adversely affect the registrant’s ability to record, process,summarize, and report financial information; and

b) Any fraud, whether or not material, that involves management or otheremployees who have a significant role in the registrant’s internal controlover financial reporting.

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248. The SOX certifications signed by Defendants Nelson and West in the Form 10-Q

for fiscal Q1 2010 stated:

1. The Report fully complies with the requirements of Section 13(a) or 15(d) ofthe Securities Exchange Act of 1934; and

2. The information contained in the Report fairly presents, in all materialrespects, the financial condition and results of operations of the Company forthe periods reflected therein.

249. In the Form 10-Q for Q1 FY 2010, Defendants again reported EDMC’s increased

revenue and enrollment:

Net revenues for the three months ended September 30, 2009 increased 23.1% to$534.4 million, compared to $434.2 million in the same period a year ago.Average student enrollment increased 23.1 % in the current period compared tothe prior period primarily due to the opening of new school locations, the growthin our fully online programs and the introduction of new academic programs.

***Average student enrollment increased 23.1 % in the current period compared tothe prior period primarily due to the opening of new school locations, the growthin our fully online programs and the introduction of new academic programs.

250. The Q1 2010 Form 10-Q also describes EDMC’s “highly leveraged” position,

total indebtedness, term loan facility, and revolving credit facility in a manner that is

substantially consistent with the descriptions provided in the Registration Statement, as alleged

in ¶¶118-128, supra. The Q1 2010 Form 10-Q updates EDMC’s disclosures with respect to

EDMC’s total amount of debt outstanding and the amounts outstanding under the term loan

facility and the revolving loan facility. These disclosures included that, as of September 30,

2009, EDMC had over $1.885 billion in “aggregate indebtedness outstanding,” nearly $1.124

billion outstanding under the term loan facility due in 2013, and no amounts outstanding under

the revolving credit facility.

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251. The above statements in EDMC’s Q1 FY 2010 earnings release, conference call,

and Form 10-Q, were materially false and misleading and omitted material facts required to

make the statements therein not false and misleading insofar as:

(a) EDMC’s reported enrollment and revenue figures were improperly and materially

inflated as a result of EDMC’s systematic abusive and deceptive recruiting and enrollment

practices and improper incentive based compensation practices;

(b) the statements failed to disclose that EDMC employed abusive and deceptive

recruiting and enrollment practices and improperly compensated its admissions staff based on the

volume of their enrollments, in violation of Title IV, which seriously jeopardized EDMC’s

ability to continue to receive federal student aid, its primary source of revenue;

of EDMC’s programs were false and misleading as they failed to disclose that EDMC employed

abusive and deceptive recruiting and enrollment practices and improperly compensated its

admissions staff based on the volume of their enrollments;

(d) the discussion of factors that purportedly led to increased student enrollments, and

EDMC’s “growth strategy” did not disclose that EDMC’s enrollments were materially inflated

by the Company’s abusive and deceptive recruiting and enrollment practices;

(e) Defendant Nelson’s statements regarding EDMC’s incentive compensation were

false and misleading as EDMC’s compensation policies were not “consistent with” the “safe

harbors” and failed to disclose that EDMC set enrollment quotas for its admissions staff and

adjusted their compensation based solely on the number of students they enrolled, in violation of

Title IV;

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(f) despite the inclusion in the Form 10-Q for Q1 FY 2010 of a discussion of risks

related to Title IV regulation and pending regulation, the 10-Q failed to disclose that the

Department of Education was considering changes to HEA regulation, including elimination of

the “safe harbors” related to the ban on incentive based compensation and developing standards

to define the requirement that EDMC’s programs provide “gainful employment” in a recognized

occupation to its graduates, which would materially impact its eligibility for federal student aid;

(g) Defendant Nelson’s statements regarding the growth in the number of admissions

representatives and enrollment staff were false and misleading as they failed to disclose the

abusive and deceptive recruiting and enrollment practices employed by these admissions

representatives, the improper use of admissions quotas tied to compensation, and the related

impact on student enrollments;

(h) the reported enrollment numbers were improperly inflated and false and

misleading as EDMC counted students as enrolled who had not committed to enrolling in the

current semester;

(i) the reported graduate employment figures were improperly inflated and the

statements regarding graduates’ success were false and misleading as EDMC counted as

“gainfully employed” for graduate employment statistics graduates who were not so employed;

(j) EDMC did not maintain adequate systems of internal operational or financial

controls, which would have permitted EDMC’s reported financial and operational statements to

be true, accurate or reliable; and

(k) the statements in EDMC’s Q1 2010 Form 10-Q and Defendant West’s statements

regarding EDMC’s indebtedness omitted material information about that indebtedness insofar as

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they failed to disclose the material related party transactions arising from Goldman Sachs Credit

Partners being a lender to EDMC in connection with the term loan and revolving credit facility.

3. Second Quarter Fiscal Year 2010

252. As discussed above, by February, 2010, the Department of Education was

considering requiring programs to demonstrate a 90% repayment rate in order to satisfy the

“gainful employment” requirement via the loan repayment rate threshold. Further, the

Department continued to recommend the elimination of the “safe harbors” related to the ban on

incentive based compensation.

253. On February 10, 2010, EDMC issued its earnings release for Q2 2010, again

touting its revenue and enrollment growth:

Net revenues were $655.5 million, an increase of 25.5% as compared to thesecond quarter of the prior fiscal year. Net income was $20.3 million, or $0.14per diluted share. Excluding expenses incurred during the second quarter of fiscal2010 in connection with our initial public offering (“IPO”) and the relatedrepurchase of $316 million of our senior subordinated notes (“debt repurchase”),net income would have been $76.0 million, an increase of 79.7% from the quarterended December 31, 2008, or $0.53 per diluted share.

***Net revenues for the three months ended December 31, 2009 increased 25.5% to$655.5 million, compared to $522.2 million for the same period a year ago. Thisincrease was primarily driven by a 22.7% increase in October student enrollment.

Net income for the second quarter of fiscal 2010, which included the expensesrelated to our IPO and debt repurchase, was $20.3 million, or $0.14 per dilutedshare, compared to net income of $42.3 million, or $0.35 per diluted share, for thesame period a year ago. Earnings before interest, taxes, depreciation andamortization (EBITDA) increased 3.2% to $139.1 million in the second quarter offiscal 2010.

Excluding the expenses related to our IPO and debt repurchase, net income for thethree months ended December 31, 2009 grew 79.7% to $76.0 million, or $0.53per diluted share and EBITDA increased 37.2% to $184.8 million in the secondquarter of fiscal 2010. The increase in EBITDA is primarily due to higher studentenrollment.

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254. The February 10, 2010 release further emphasized the increased enrollment, “At

the start of the current January quarter, total enrollment at our schools was over 139,400

students, a 22.4% increase from the same time last year. Same-school enrollment (schools with

enrollment for one year or more) increased 21.4% to over 138,300 students. The number of

students enrolled in fully online programs increased 54.9% to approximately 34,800 students.

255. The February 10, 2010 press release also quoted Defendant Nelson, “We are

pleased with our strong financial performance. This performance was the direct result of

meeting the educational needs of our students and helping them succeed both academically and

professionally. Further, through the efforts of our faculty and career services staff, our graduates

are continuing to find employment opportunities in this challenging job market.” The press

release further stated, “We are committed to offering quality academic programs and

continuously strive to improve the learning experience for our students.”

256. The same day, on February 10, 2010, EDMC held an earnings conference call.

On that call, Defendant West again touted the results based on increased enrollment:

For the second quarter ended December 31, net revenues were 655.5 million, up25.5% versus the prior year ... EBITDA increased 37.2% to $184.8 million. Netincome was up almost 80%, and earnings per share was $0.53 per diluted share.The revenue increase was driven by an October enrollment increase of 22.7% andan approximate 6% increase in tuition rates... EBITDA, adjusted for the IPO anddebt repurchase expenses increased 37.2% to $184.8 million for the secondquarter versus $134.7 million last year. The adjusted EBITDA margin was up239 basis points to 28.2% for the quarter... Adjusted operating income was up45% to 155.4 million in the current period versus 107.2 million in the year agoperiod. And the adjusted operating margin was up 319 basis points to 23.7% forthe current quarter.

257. During the February 10, 2010 call, Defendant Nelson further stated, “I am pleased

to report that for our recent start, we were able to serve the education needs of an increasing

number of students across all academic disciplines and degree levels, as well as all four of our

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Education Systems. For our January start, we had enrollment of over 139,400 students, an

increase of approximately 22% over the prior-year period. Of this total, students taking their

classes in a fully online modality grew 55% to approximately 34,800 students, representing

about a quarter of the total population. Excluding the ten locations that are less than a year old,

same school enrollment increased 21 %. Finally, new students for the three-month period ended

December 2009 increased by approximately 25% over the prior-year period.”

258. During the February 10, 2010 call, Defendants further touted the purported

success, job placement rates and salaries of graduates. Defendant Nelson stated:

I’d like now to provide an update on our quality metrics. Through the efforts ofour faculty and career services staff, we’re pleased with the continued success ourgraduates are having finding employment despite the very challenging job market.Approximately 85% of undergraduate students available for employment whograduated during the quarter that ended this past June were employed in theirfields or related fields within six months of graduation. The average startingsalaries for graduates from our undergraduate programs for the quarter ended thispast June, Bachelor Degree students obtained an average salary of $32,000, whilegraduates from Associate's and diploma programs earned $28,000. We also seegood results across our graduate programs, with those graduating students fromSouth University and Argosy University obtaining even higher salaries. Based onthe latest survey results received from recent graduates, the average salary forgraduates from our Master's and Doctoral level programs was approximately$48,000.

259. On the February 10, 2010 call, Defendants Nelson and West further indicated that

EDMC would be able to comply with the pending regulation regarding incentive compensation

and “gainful employment.” As to incentive compensation, Defendant Nelson stated, “we can

comply with whatever language that is finally included in the regulation.” In connection with his

discussion of the “gainful employment” regulations, Defendant Nelson stated, “Our quality

programs address a broad range of programmatic and degree levels that are demanded by

students as well as employers. We have an excellent reputation that has been achieved through a

commitment to student and graduate success and a long established culture – excuse me – of

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doing things the right way. We do believe the value we provide to student and the success they

have in their fields of interest is best illustrated by low [cohort] default rates, as well as excellent

graduate outcomes.”

260. During the February 10, 2010 call, Defendant West expanded on the statements

regarding the “gainful employment” regulations:

To expand on the comments Jock and Todd made regarding gainful employment,I wanted to share with you certain key metrics that are readily accessible. Muchof the data for the proposed metrics are not readily accessible, such as three-yearreporting, pre-existing debt levels, delinquencies, a reason for deferment, ortracking of the data for loans that have been consolidated. Thus, it would beinappropriate for us to comment on the speculation of these proposals. We do,however, have good information on cohort default rates. As we’ve previouslyreported, based on the official two-year cohort data, the Federal default rate for2007 was [8%] across the EDMC institutions. We were pleased by the draft ratesfor 2008 that showed that default rate declined to 7.5% on a consolidated basisacross the EDMC institutions. We have historically had below average cohortdefault rates as compared to many of our peers; and as you would expect, thecohort default rate for graduates is even lower. For the 2005 through 2007 cohortperiods, the average cohort default rate for our graduates across EDMC was 1.8%.By Education Systems, the default rates were as follows. For The Art Institutes,the average was 1.2%. For Argosy University, it was 0.6%. For SouthUniversity, it was 1.0%, and for Brown Mackie was 4.7%. Now as we stated, webelieve these results demonstrate the success our students are obtaining aftergraduation.

261. During the February 10, 2010 call, in his response to a question from an analyst at

BMO Capital Markets, who stressed that the analysts are “trying to sit here and weigh the risks”

of the “gainful employment” regulation, Defendant Nelson stated, “But our feeling is, if you

have the high quality programs with the low default rate, and that you’re placing those graduates,

we think we should be okay there.”

262. Also on the February 10, 2010 earnings call, Defendant West spoke to EDMC’s

level of indebtedness, stating that EDMC’s “long-term debt was $1.57 billion” as of December

31, 2009.

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263. Analysts reacted positively to the Company’s announcements on February 10,

2010. As reported by Barrington Research on February 12, 2010, “enrollment, revenue,

EBITDA and earnings all topped expectations.”

264. Analysts further understood the Exchange Act Defendants’ suggestion that

EDMC’s cohort default rates indicate that EDMC’s repayment rates meet the 90% repayment

rate threshold for demonstrating “gainful employment” being considered by the Department at

the time. A JPMorgan analyst report dated February 11, 2010 reported, “Proposed regulations

may be more manageable then feared. Management’s optimistic comments suggested

that ... EDMC may fare better (than feared) relative to the gainful employment proposal,

specifically on loan repayment. While EDMC does not have all the data to comment on the

ED’s proposed 90% loan repayment, management did reveal remarkably low average [cohort

default rates] for graduates, an encouraging metric.” The report continued and noted the

importance that EDMC satisfy the repayment rate threshold as many of its programs do not

appear to be able to meet the other avenue for demonstrating “gainful employment”, debt-to-

income ratio: “We note that many of the EDMC programs would not produce the necessary

post-graduation earnings to stay within the propped 8% debt-to-income ratio, especially within

the Art Institute’s bachelor’s programs... Furthermore, while management did not have all the

data to comment on the ED’s proposed 90% alternate loan repayment threshold, EDMC did

reveal remarkably low [cohort default rates] (average for 2005 thru 2007 cohorts; two-year rates

for graduates[]). This suggests that EDMC is likely to perform favorably under this alternate

measure in the gainful employment proposal.”

265. Subsequently, on February 12, 2010, EDMC filed its Form 10-Q for Q2 FY 2010.

It was signed by Defendant West and certified by Defendants Nelson and West. The Form 10-Q

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for fiscal Q2 2010 stated, “our chief executive officer and chief financial officer have concluded

that the Company’s disclosure controls and procedures are effective.” The Form 10-Q also

contained signed Rule 13a-14(a)/15d-14(a) and SOX certifications by Defendants Nelson and

West attesting to the accuracy and completeness of the Company’s financial and operational

reports contained therein and its internal controls and procedures. The certifications are

substantially identical to those quoted in ¶¶246-248, supra.

266. In the Form 10-Q for Q2 FY 2010 Defendants again reported EDMC’s increased

revenue and enrollment:

Net revenues for the three months ended December 31, 2009 increased 25.5% to$655.5 million, compared to $522.2 million in the same period a year ago. TheOctober starting student enrollment increased 22.7% in the current year quartercompared to the prior year quarter due primarily to growth at existing schoolsaided by the introduction of new academic programs, the growth in our fullyonline programs and the opening of new school locations.

***Net revenues for the six months ended December 31, 2009 increased 24.4% to$1,189.9 million, compared to $956.4 million in the same period a year ago.Average student enrollment increased 22.9% in the current year period comparedto the prior year period primarily due to growth at existing schools aided by theintroduction of new academic programs, the growth in our fully online programsand the opening of new school locations.

267. The Q2 2010 Form 10-Q also describes EDMC’s term loan facility and revolving

credit facility in a manner that is substantially consistent with the descriptions provided in the

Registration Statement as alleged in ¶¶118-128, supra. The Q2 2010 Form 10-Q updates

EDMC’s disclosures with respect to EDMC’s total amount of debt outstanding and the amounts

outstanding under the term loan facility and the revolving loan facility. These disclosures

included that, as of December 31, 2009, EDMC had over $1.566 billion in “aggregate

indebtedness outstanding,” nearly $1.121 billion outstanding under the term loan facility due in

2013, and no amounts outstanding under the revolving credit facility.

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268. The above statements in EDMC’s Q2 FY 2010 earnings release, conference call

and Form 10-Q were materially false and misleading and omitted material facts required to make

the statements therein not false and misleading insofar as: