Securities & Exchange Commission v. Wyly
Securities & Exchange Commission v. Wyly
Opinion of the Court
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”).
I. DISCUSSION
A.. Legal Standard
The standard for granting a motion for reconsideration is strict. “Reconsideratkm 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.”
B. Comparison of the Rate of Return on Options to the Rate of Return on Stocks
The Wylys contend that the Court was “misled by Dr. Becker’s highly confusing testimony” regarding the comparison of the Wylys’ rate of return to that of a buy-and-hold investor in stock.
The Court was not misled by Dr. Becker’s testimony. In the December 19 Or
■The Wylys contend that the December 19 Order did not address the difference in the rates of return due solely to the timing of the payment of the exercise price. That is, the Wylys argue that I did not account for the fact that the ability to delay the payment of the exercise price led to a higher rate of return than that of a buy- and-hold investor in stock, even though Dr. Becker credited the value of the option as a “purchase” on the starting date of the holding period and the..payment of the. exercise price on the. exercise date: Therefore, the Wylys contend, although Dr. Becker’s method results in the same amount of gain for the Wylys and an investor in stock, because of the timing discrepancy, the rates of return are not the same. The Wylys correctly note that this difference is not explicitly noted in the December 19 Order. This omission, however, does not indicate a misunderstanding. The Wylys clearly and forcefully elicited this point in their direct examination of their expert, Daniel Fischel, as well as in their summation.
The Wylys argue that Dr. Becker’s own report shows that, her calculation was flawed. They point to her Measure 1 A, which imagines a hypothetical and counter-factual world in which the Wylys exercised their options before transferring them to the offshore system. ■ This measure calculates ill-gotten gains that are approximately $100 million lower than those calculated in her Measure 1 (the measure used in the December 19 Order). The Wylys contend that this $100 million is due solely to the difference between the rate of return on options and the rate of return on stock. Thus, they argue that Measure 1 is not a reasonable approximation.
Again, the Wylys are attempting to relitigate an issue already decided. The Court questioned Dr. Becker on this very issue, asking whether, in essence, the Court should use the measurement of ill-gotten gains Dr. Becker calculated in Measure 1A.
Although it’s true that of course the rate of return is higher because they are investing less up front, because the value of the option is clearly less than the value of the underlying security, at the same time, you know, if the option was worth only $5, the Wylys only had $5 of*264 their capital tied up in the security. So their actual — what my calculation reflects is their actual holding period weighted by the actual dollars that they had invested at the time. So I think at some core level, the fact that the Wylys only had the value of the option tied up as opposed to the ... equity amount ... is clearly a more correct reflection of their investment.12
Thus, Dr. Becker acknowledged the discrepancy between the rates of return, and explained why, even with the difference in rates of return, the calculation was still a reasonable approximation. The December 19 Order recognized this and agreed.
Finally, the Wylys suggest that Dr. Becker should have employed a comparison to a buy-and-hold investor in options,' instead of a buy-and-hold investor in the underlying stocks. This comparison, they contend, would have solved the “apples- and-oranges” problem.
It is true that some part of the difference in the Wylys’ rate of return as compared to that of a buy-and-hold investor is due to the difference in the rates of return between options and stocks. Nonetheless, I understood that at the time of the December 19 Order and considered it when I concluded that the SEC had met its burden of establishing a reasonable approximation of the Wylys,’ profits that were causally connected to their securities laws violations. The Wylys offer no new arguments that would support reconsideration of that Order.
II. CONCLUSION
For the foregoing reasons, the Wylys’ motion for reconsideration of the December 19 Order is DENIED. In the event that a higher court disagrees with the measure of disgorgement imposed by this Court on September 25, 2014,
SO ORDERED.
. See SBC v. Wyly, No. 10 Civ. 5760, 71 F.Supp.3d 399, 2014 WL 7238271 (S.D.N.Y. Dec. 19, 2014). Familiarity with the facts arid procedural history of the case is presumed.
. See Memorandum of Law in Support of Defendants’ Motion to Reconsider this Court's Opinion and Order Granting Disgorgement of “Gains in Excess of Buy and Hold Benchmark” (“Def. Mem.”).
. Id. at 10.
. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
. Oji v. Yonkers Police Dep’t, No. 12 Civ. 8125, 2013 WL 4935588, at *1 (S.D.N.Y. Sept. 11, 2013) (quoting Parrish v. Sollecito, 253 F.Supp.2d 713, 715 (S.D.N.Y. 2003)).
. Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quotation omitted).
. Def. Mem. at 2.
. See December 19 Order, 71 F.Supp.3d at 418, 2014 WL 7238271, at *14.
. Id.
. See Transcript of Second Remedies Hearing ("Rem. Tr. II”) at 282-288, 468.
. See id. at.108.
. Id. at 109.
. See, e.g., December 19 Order, 71 F.Supp.3d at 418, 2014 WL 7238271, at *14 (approving of the method because it accurately tracks the time during which the Wylys’ capital was tied up in the offshore system).
. Def. Mem. at 8.
. Rem. Tr. II at 234-235. See also id. at 204 (testimony of Dr. Becker) ("[T]he term ‘market value’ is a little bit inappropriate here because these options actually are not traded on markets ... these are not exchange traded options.”).
. See SEC v. Wyly, 56 F.Supp.3d 394 (S.D.N.Y. 2014).
. See Notice of Securities and Exchange Commission's Recalculations of Ill-Gotten Gains and Pre-Judgment Interest, at 2.
Reference
- Full Case Name
- SECURITIES AND EXCHANGE COMMISSION v. Samuel WYLY, and Donald R. Miller, Jr., in his Capacity as the Independent of the Will and Estate of Charles J. Wyly, Jr., 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 III, Emily Wyly Lindsey, Jennifer Wyly Lincoln, James W. Lincoln, and Persons, Trusts, Limited Partnerships, and Other Entities Known and Unknown, Relief
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- Published