Risk Management

Apollo Takes Aim at Backdating Settlements

U. of Phoenix operator gets both a federal- and state-court nod for deals with plaintiffs who alleged stock-option abuses.
Stephen TaubMay 5, 2008

Apollo Group Inc. received preliminary approval for a settlement of two derivative lawsuits filed stemming from the backdating of stock options.

The for-profit education company that operates the University of Phoenix system said in a regulatory filing that on April 18 and on April 28 a federal District Court in Arizona and a state Superior Court in Arizona preliminarily approved settlements with the Alaska Electrical Pension Fund and with another group that had sued current and former officers and directors of Apollo.

The federal-court suit was filed in September 2006, alleging that the senior Apollo insiders diverted hundreds of millions of dollars of corporate assets to themselves by manipulating stock-option grant dates, according to a Reuters report.

In December 2006, Apollo announced that a seven-month probe by a special committee of outside directors had found that certain former officers took steps that may have been intended to mask failures in the stock-option-grant approval process. Further, the potential cover-up involves the company’s financial reporting and payment of taxes. The company said at that time that none of the findings applied to any member of its then-current executive team. The announcement was part of a final report from the committee investigating the company’s stock-option practices, whose conclusions were “largely consistent with earlier, interim factual findings.”

Apollo also said at that time that it had misapplied a certain provision of the Internal Revenue Code related to the contemporaneous tax treatment of certain stock-option grants and may face significant tax liability for prior years. As a result, the company said it prepared and maintained inaccurate documentation concerning the date grant-award lists were completed and approved.

“The Special Committee has found no direct evidence that the grant date for any of the large management grants was selected with the benefit of hindsight,” it noted at the time. In two instances, however, the price on the grant date was at a relative low point for the company’s stock, and “there is little contemporaneous evidence” to establish that the grant was made on the grant date. In another instance, there is evidence that raises questions about whether a grant award was retroactively selected by a day, the company said. “While there is a possibility that the grant date was retroactively selected on these occasions, there is insufficient evidence to reach such a conclusion,” it added.

Apollo also said at the time that John R. Norton had resigned as chair of the compensation committee, and that K. Sue Redman was appointed to the board, as well as to the audit and compensation committees. Redman was senior vice president and chief financial officer of Texas A&M University. She replaced Hedy F. Govenar as a member of the special committee.

The company explained that the change in board membership was prompted by an order by the Arizona federal court, where three shareholder derivative suits filed against the company were pending at the time. The suits were filed after the formation of the special committee.