Criminal Trial of Former Dean Could Be a Preview of Fraud Case Against Kaplan

November 29, 2010

This week's criminal trial of a former Kaplan University dean accused of sending threatening messages via the university's computer system could turn into a seamy preview of his billion-dollar whistle-blower lawsuit against Kaplan.

The former dean, Ben Wilcox, says Kaplan officials have framed him to undermine his allegations of widespread misconduct by Kaplan. So as part of his criminal defense, his lawyers plan to introduce testimony and reams of evidence that they say will show that the for-profit university inflated grades, misled prospective students, enrolled its own employees to fraudulently obtain federal student-aid funds, and falsified documents to obtain accreditation.

They also say they will show that Kaplan paid $100,000 to a female employee—now Mr. Wilcox's wife—to buy her silence about an alleged sexual assault on her at a Kaplan corporate event.

Jury selection was under way on Monday, and opening statements in the case are expected on Tuesday in a federal court in Chicago. Among those expected to be called as witnesses by the government are Kaplan Inc.'s current chief executive, Andrew S. Rosen, and its former chief executive, Jonathan N. Grayer.

Kaplan, a subsidiary of the Washington Post Company, maintains that Mr. Wilcox's assertions are untrue. "On the eve of his trial by the U.S. Department of Justice, Wilcox has suddenly raised allegations that he has made unsuccessfully in the past, in order to divert attention from his own conduct," a company spokesman said in a written statement.

Mr. Wilcox is accused of six counts of sending threatening messages via computer in June 2007. He contends that he was framed by Kaplan executives to discredit his future testimony "in a potentially devastating civil proceeding."

In his motion seeking to introduce the evidence of a frame-up, Mr. Wilcox says he initially and falsely confessed to the crimes to FBI agents in a "rather misguided attempt at chivalry." He did so, he says, because it seemed the agents were looking to accuse his then-girlfriend, Kari Jorgensen, and at the time he believed that "out of anger over the sexual assault, she might have sent them."

He now contends that the e-mails were orchestrated by some of his Kaplan superiors who had threatened that "his life would be ruined if he persevered in his plan to expose Kaplan's acts of fraud" by filing a whistle-blower lawsuit.

He says the messages originated from a Benedictine University student's e-mail account and suggests that one of the former Kaplan executives who had threatened him, David Harpool, was involved in sending them. According to Mr. Wilcox's motion, Mr. Harpool was involved with another Kaplan employee who attended Benedictine at the time. Mr. Wilcox also contends that he had observed Mr. Harpool fabricate e-mails before to discredit another former employee, Carlos Urquilla-Diaz. (Mr. Urquilla-Diaz, like Mr. Wilcox, is party to one of four whistle-blower lawsuits against Kaplan now pending in a federal court in Miami.)

Mr. Harpool is now provost at Westwood College. Through a Westwood spokesman, he declined to comment.

In pretrial motions, government lawyers had attempted to block the line of testimony from Mr. Wilcox, at one point even likening Mr. Wilcox's defense strategy to that of the Oklahoma City courthouse bomber Timothy McVeigh, who had tried to introduce speculative evidence that others could have had a motive for that crime. But the presiding judge, Blanche M. Manning, didn't buy the lawyers' argument.

Mr. Wilcox "has identified specific threats by others to engage in the very conduct of which he is accused," she wrote in a November 22 court order allowing testimony about the alleged frame-up of Mr. Wilcox. "In addition, the threats came from at least one person whom Wilcox contends he had observed engage in similar conduct in the past."

Judge Manning did, however, impose some limits. She has advised Mr. Wilcox that he and his wife can testify only about topics on which they have first-hand evidence, to avoid turning the criminal trial into a "sideshow trial within the actual trial." And, as she pointedly noted, the trial is slated to last no more than a week, so in presenting witnesses and testimony, "parties should allocate their time wisely.'

As for the civil whistle-blower cases, the federal judge in Miami overseeing those cases is expected to rule within a few weeks on which of the various allegations will be dismissed, and which will be taken to trial in a consolidated case.