Reply Memorandum in Support of Mr. Perry’s Motion for Partial Summary Judgment

Excerpts from the Reply Memorandum:

“The SEC seeks to muddy the waters on summary judgment by overwhelming the Court with 126 exhibits totaling almost 3,000 pages, and making irrelevant arguments concerning matters beyond the scope of Mr. Perry’s motion. Notwithstanding the SEC’s efforts to obfuscate, the issues before the Court are straightforward and ripe for summary resolution…”

“These are all straightforward summary judgment issues that may be resolved short of trial without reference to the SEC’s mountain of extraneous evidence. The Court need not consider the SEC’s argument that Bancorp engaged in a ‘scheme’ to artificially inflate the Bank’s capital ratios because that claim, while baseless, is not part of Mr. Perry’s motion for partial summary judgment. The Court likewise need not consider the SEC’s irrelevant evidence on materiality because the SEC cannot meet its threshold burden of showing that Mr. Perry made actionable false or misleading statements in the filings at issue in the motion. To rule in Mr. Perry’s favor, the Court need only review the plain language of Bancorp’s SEC disclosures and the handful of undisputed facts noted above. That plain language and those few undisputed facts show that Mr. Perry is entitled to partial summary judgment under Fed. R. Civ. P. 56…”

“For the foregoing reasons and the reasons stated in our Opening Brief, Mr. Perry’s motion for partial summary judgment should be granted. The Court should dismiss: (a) the SEC’s disgorgement claim against Mr. Perry; (b) the SEC’s claims against Mr. Perry based on Bancorp’s February 12, 2008 8-K; (c) the SEC’s claims against Mr. Perry based on Bancorp’s February 29, 2008 10-K; (d) the SEC’s claims against Mr. Perry based on Bancorp’s DSPP prospectuses; (e) the SEC’s claim that Mr. Perry had a continuing duty to update the foregoing documents; and (f) the SEC’s claim that Mr. Perry fraudulently delayed disclosure

of the decision to suspend the payment of dividends on preferred securities issued by Bancorp and the Bank…”

Click here to access entire Reply Memorandum

Posted on May 7, 2012, in Postings. Bookmark the permalink. Leave a comment.

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