M. Perry’s Memorandum of Contentions of Fact and Law
We filed this document with the Court last Friday and I was going to tell you that I think this document is an excellent summary of the case and my defense points regarding the SEC’s meritless allegations. However, on Monday, May 21, 2012 we had some very good news. At a hearing on our Partial Summary Judgment Motion, Judge Real granted our motion in its entirety (see Statement 14). As a result, Section III. A,B,C, D, E, H, and N no longer apply (although I would encourage you to read them, because even though the judge dismissed these allegations, it will help you understand that while he may have dismissed a few of them on technical, legal grounds; that even if he had not, they had no merit even on more substantive grounds and we would have prevailed at trial).
In essence, two SEC allegations remain: Section III.F and III.G. Because these allegations occurred after Mr. Keys had taken a medical leave of absence, there is a strong possibility he may be dismissed from this lawsuit. I am very happy for him, but will continue to fight on until these final two meritless allegations are resolved in my favor.
“Despite these extensive disclosures, which the SEC does not dispute, and despite the fact that the SEC takes no issue with Bancorp’s accounting or financial reporting, the SEC has charged Mr. Perry with securities fraud based on a few alleged foot faults in Bancorp’s disclosures during a 90-day period between February and May 2008. The SEC’s claims are baseless. As explained below, to prove fraud the SEC has the burden of establishing that Mr. Perry made false or misleading statements; that such statements were material to a reasonable investor in light of the total mix of information available; and that Mr. Perry acted with scienter (or at least negligently). It cannot come close to meeting this burden.”