The lawyers representing the former CEO of IndyMac say they've dealt the Securities and Exchange Commission "another major blow" to its civil fraud case against former IndyMac CEO Michael Perry.
U.S. District Judge Manuel Real tossed out (and had been tossing out since May) another key portion of the SEC case. This leaves just a single issue to be resolved at trial, according to Covington & Burling, the lawfirm representing Perry.
"As a result of this ruling, combined with the court’s prior ruling in favor of Mr. Perry, the SEC’s once wide-ranging civil case against Mr. Perry has been stripped down to a solitary allegation: whether IndyMac’s May 12, 2008, SEC filings should have disclosed additional details about an $18 million capital contribution to IndyMac Bank," said Covington in an email.
Perry's head lawyer, D. Jean Veta, said she's confident she can also beat the one, remaining charge.
Veta stayed one step ahead of the SEC by arguing IndyMac remained compliant in public disclosures about capital ratios, by saying it had no obligation to disclose supplemental numbers to its then bank regulator, the Office of Thrift Supervision.
"IndyMac made clear its tenuous capital position, and the market understood that," Veta said. "Indeed, IndyMac disclosed other scenarios where its capital ratios would have been far worse. That did more to warn investors about the challenges IndyMac faced than anything the SEC was complaining about."
By mounting a defense in this manner, the SEC now has to prove Perry intentionally misled shareholders. Since the nondisclosure argument has not work against Perry yet, it will be a challenge for the SEC to get the same thing to stick this time around.
It looks to be an uphill battle: “(Perry) was IndyMac’s largest noninstitutional shareholder, and no one lost more as a result of IndyMac’s failure than Mike Perry," Veta said.