Transcript of Partial Summary Judgment Motion Hearing Before Judge Real

“For these reasons, Defendants Perry and Keys’ motion for partial summary judgment are hereby granted.”
Manuel L. Real, U. S. District Judge Presiding

Other Excerpts from Judge Real’s Decision:

“Therefore, the Form 10-K clearly discloses that Bancorp was raising capital pursuant to DSPP.”

“Therefore, Bancorp was not required to disclose the February 19 capital ratio forecast.”

“This statement (regarding funding/liquidity capacity) was thus true, as stock sales pursuant to the DSPP did not begin until February 26th of 2008.”

“Here, Bancorp disclosed that the market for mortgage-backed and asset-backed securities had been significantly disrupted; that such disruptions may negatively impact the bank and market liquidity; that there were material risks to the bank’s well-capitalized status; and that interest rate changes, real estate value drops, and other economic fluctuations then occurring could impact capital requirements.”

“Therefore, the February 12th, 2008, Form 8-K was not incorporated by reference into the DSPP prospectuses and registration statement.”

“Because Defendants in no way participated in the preparation and release of the prospectuses, they cannot be held liable for their content.”

“The S-3 registration statement signed by the Defendants did not incorporate the DSPP prospectuses by reference because the S-3 registration statement was signed before the DSPP prospectuses were made.”

“These deferrals were publicly reported on Monday, May 12th, 2008. It is undisputed that the deferral was reported within two business days of the vote. While Mr. Perry had already told the board on April 24th that they planned to defer the dividend, a mere expression of management’s opinion is not actionable if they lack the authority to enforce that opinion.”

“The SEC’s power to obtain injunctive relief has been broadly read to include disgorgement of profits realized from violations of the securities laws……Here, Perry did not sell any Bancorp stock between 2006 and 2008, received no bonus between 2007 and 2008, and lost almost the entire value of his Bancorp stock when the company filed for bankruptcy…..The SEC has failed to demonstrate that Defendants’ salaries and benefits would not have been given but for the (alleged) illegal conduct.”

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Posted on May 21, 2012, in Postings. Bookmark the permalink. Leave a comment.

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