M. Perry’s Motion for Partial Summary Judgment Concerning Plaintiff’s Risk-Weighting and Section 17 (a)(2) Claims
Excerpt from Motion:
“Following the Court’s May 21, 2012 decision granting Mr. Perry’s motion for partial summary judgment, the only issues remaining in this case concern whether Mr. Perry made material false statements or omissions in two IndyMac SEC filings dated May 12, 2008. In light of that ruling, Mr. Perry now files this additional motion for partial summary judgment so that the Court may further narrow the issues for trial. Specifically, Mr. Perry seeks summary judgment on the SEC’s claim that the May 12 filings omitted material information about the “risk weighting” employed to calculate the capital ratios of IndyMac Bank (the “Bank”) for the first quarter of 2008. Mr. Perry also seeks summary judgment on the SEC’s claim that Mr. Perry can be liable for alleged false statements or omissions in the May 12 filings under section 17(a)(2) of the Securities Act, 15 U.S.C. § 77q(a)(2), which provides for liability based on negligence and does not require proof of scienter.
If these issues are eliminated, the only matter remaining for trial will concern whether Mr. Perry purposefully made false statements or omissions in IndyMac’s May 12 filings concerning an $18 million capital contribution from IndyMac Bancorp (“Bancorp” or “IndyMac”) to the Bank. There are a few factual disputes regarding the SEC’s baseless fraud claim concerning the capital contribution which will need to be resolved through witness testimony, but a trial on this narrow matter should require no more than 1–2 court days. Accordingly, disposing of the risk-weighting and section 17(a)(2) issues at the summary judgment stage would substantially promote judicial efficiency and economy.”
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