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Securities and Exchange Commission v. Wyly

United States District Court, Southern District of New York

February 2, 2015

SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
SAMUEL WYLY, and DONALD R. MILLER, JR., in his Capacity as the Independent Executor of the Will and Estate of Charles J. Wyly, Jr., Defendants, and CHERYL WYLY, EVAN ACTON WYLY, LAURIE WYLY MATTHEWS, DAVID MATTHEWS, LISA WYLY, JOHN GRAHAM, KELLY WYLY O'DONOVAN, ANDREW WYLY, CHRISTIANA WYLY, CAROLINE D. WYLY, MARTHA WYLY MILLER, DONALD R. MILLER, JR., in his individual capacity, CHARLES J. WYLY HI, EMILY WYLY LINDSEY, JENNIFER WYLY LINCOLN, JAMES W. LINCOLN, and PERSONS, TRUSTS, LIMITED PARTNERSHIPS, AND OTHER ENTITIES KNOWN AND UNKNOWN, Relief Defendants.

For the SEC: Bridget Fitzpatrick, Esq., Hope Augustini, Esq., Gregory Nelson Miller, Esq., John David Worland, Jr., Esq., Martin Louis Zerwitz, Esq., Daniel Staroselsky, Esq., Angela D. Dodd, Esq., Marsha C. Massey, Esq. United States Securities and Exchange Commission 100 F Street, N.E.

For Defendants: Stephen D. Susman, Esq., Harry P. Susman, Esq. Susman Godfrey LLP

David D. Shank, Esq. Terrell Wallace Oxford, Esq. Susman Godfrey LLP

Steven M. Shepard, Esq., Mark Howard Hatch-Miller, Esq., Susman Godfrey LLP

For Samuel Wyly: Josiah M. Daniel III, Esq. Vinson & Elkins LLP

For Caroline D. Wyly: Judith W. Ross, Esq.

For Donald R. Miller, Jr., John Graham, Cheryl Wyly, Evan Wyly, Martha Miller, David Matthews, Laurie Matthews, Lisa Wyly, Kelly Wyly O’Donovan, Andrew Wyly, Christiana Wyly, Emily Wyly Lindsey, Charles J. Wyly, III, James W. Lincoln, and Jennifer Wyly Lincoln: David L. Kornblau, Esq. Eric Hellerman, Esq. Covington & Burling LLP

For Jennifer Wyly Lincoln: Chaim Zev Kagedan, Esq. Venable LLP

MEMORANDUM OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.

This Court issued an Opinion and Order on December 19, 2014 (“the December 19 Order”) imposing an alternate measure of disgorgement on Samuel and Charles Wyly (the “Wylys”).[1] On December 23, 2014, the Wylys filed a motion for reconsideration of the December 19 Order.[2] The Wylys contend that this Court was “misled” by the SEC’s expert, Dr. Chyhe Becker, and erroneously concluded that Dr. Becker accounted for the difference between the rate of return on options and the rate of return on stocks in concluding that the SEC had established a reasonable approximation of the profits causally connected to the Wylys’ securities laws violations.[3] The Wylys argue that, in fact, Dr. Becker did not account for this difference, and therefore the SEC did not establish a reasonable approximation of the Wylys’ ill-gotten gains. For the following reasons, the Wylys’ motion is DENIED.

II. DISCUSSION

A. Legal Standard

The standard for granting a motion for reconsideration is strict. “Reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked – matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.”[4]“Reconsideration of a court’s previous order is an ‘extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.’”[5] Typical grounds for reconsideration include “an ...


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