IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SECURITIES AND EXCHANGE CIVIL ACTION COMMISSION,
Plaintiff, NO. 19-4229-KSM
v.
DEAN PATRICK MCDERMOTT, et al.,
Defendants.
ORDER
AND NOW, this 24th day of June, 2022, it is hereby ORDERED as follows: 1. Upon consideration of Defendants’ Motion to Preclude Evidence on the Timing of Prospectus Delivery (Doc. No. 82) and Plaintiff’s Opposition to Defendants’ Motion to Preclude Evidence on the Timing of Prospectus Delivery (Doc. No. 99), it is hereby ordered that Defendants’ Motion to Preclude Evidence on the Timing of Prospectus Delivery (Doc. No. 82) is DENIED. 2. Upon consideration of Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Irrelevant Brokerage Account Documents (Doc. No. 83) and Plaintiff’s Opposition to Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Irrelevant Brokerage Account Documents (Doc. No. 100), it is hereby ordered that Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Irrelevant Brokerage Account Documents (Doc. No. 83) is GRANTED. 3. Upon consideration of Defendants’ Motion in Limine to Preclude Evidence Referencing Commission and Judicial Opinions (Doc. No. 84) and Plaintiff’s Opposition to Defendants’ Motion in Limine to Preclude Evidence Referencing Commission and Judicial Opinions (Doc. No. 102), it is hereby ordered that Defendants’ Motion in Limine to Preclude Evidence Referencing Commission and Judicial Opinions (Doc. No. 84) is GRANTED. 4. Upon consideration of Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Certain Evidence or Testimony Related to Dean McDermott’s Ph.D. from LaSalle University (Doc. No. 85), Plaintiff’s Opposition to Defendants’ Motion in Limine to Preclude
Plaintiff from Introducing Certain Evidence or Testimony Related to Dean McDermott’s Ph.D. from LaSalle University (Doc. No. 101), and Plaintiff’s Supplemental Submission in Further Support of Its Opposition to Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Certain Evidence or Testimony Related to Dean McDermott’s Ph.D. from LaSalle University (Doc. No. 107), it is hereby ordered that Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Certain Evidence or Testimony Related to Dean McDermott’s Ph.D. from LaSalle University (Doc. No. 85) is GRANTED. 5. Upon consideration of Defendants’ Motion to Preclude Evidence and References Related to Settlement Orders (Doc. No. 86) and Plaintiff’s Opposition to Defendants’ Motion to
Preclude Evidence and References Related to Settlement Orders (Doc. No. 102), it is hereby ordered that Defendants’ Motion to Preclude Evidence and References Related to Settlement Orders (Doc. No. 86) is GRANTED. 6. Upon consideration of Plaintiff’s Motion in Limine to Preclude Testimony Containing Legal Conclusions and Misstating the Law Concerning an Investment Adviser’s Duty to Act in Clients’ Best Interests and to Seek Best Execution (Doc. No. 87) and Defendants’ Response to Plaintiff’s Motion in Limine to Preclude Testimony Containing Legal Conclusions and Misstating the Law Concerning an Investment Adviser’s Duty to Act in Clients’ Best Interests and to Seek Best Execution (Doc. No. 96), it is hereby ordered that Plaintiff’s Motion in Limine to Preclude Testimony Containing Legal Conclusions and Misstating the Law Concerning an Investment Adviser’s Duty to Act in Clients’ Best Interests and to Seek Best Execution (Doc. No. 87) is GRANTED IN PART and DENIED IN PART. 7. Upon consideration of Plaintiff’s Motion in Limine to Preclude Evidence and Argument About Examinations Conducted by Other Entities (Doc. No. 88) and Defendants’
Opposition to Plaintiff’s Motion in Limine to Preclude Evidence and Argument About Examinations Conducted by Other Entities (Doc. No. 95), Plaintiff’s Motion in Limine to Preclude Evidence and Argument About Examinations Conducted by Other Entities (Doc. No. 88) is GRANTED IN PART and DENIED IN PART. 8. Upon consideration of Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Internal SEC Communications or the SEC Examination Process (Doc. No. 89) and Defendants’ Response to Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Internal SEC Communications or the SEC Examination Process (Doc. No. 94), it is hereby ordered that Plaintiff’s Motion in
Limine to Preclude Argument, Testimony, or Other Evidence Relating to Internal SEC Communications or the SEC Examination Process (Doc. No. 89) is DENIED. The Court reserves its ruling on the admissibility of the draft examination findings letters. The Commission SHALL produce the policies and procedures governing the examination process in effect during the Relevant Period, and such policies and procedures will be admissible at trial. 9. Upon consideration of Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Events Occurring After the Relevant Period (2013- 2014) (Doc. No. 90) and Defendants’ Opposition to Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Events Occurring After the Relevant Period (2013-2014) (Doc. No. 97), it is hereby ordered that Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Events Occurring After the Relevant Period (2013-2014) (Doc. No. 90) is DENIED. 10. Upon consideration of Plaintiff’s Motion in Limine to Treat Certain Witnesses as Adverse Parties (Doc. No. 91) and Defendants’ Response to Plaintiff’s Motion in Limine to
Treat Certain Witnesses as Adverse Parties (Doc. No. 98), it is hereby ordered that Plaintiff’s Motion in Limine to Treat Certain Witnesses as Adverse Parties (Doc. No. 91) is GRANTED IN PART and DENIED IN PART. It is FURTHER ORDERED that the objections to specific exhibits contained in the parties’ pretrial memoranda (Docs. No. 103 & 104), are GRANTED IN PART and DENIED IN PART, as detailed in Appendices A and B to this Order. IT IS SO ORDERED. /s/ Karen Spencer Marston ______________________________ KAREN SPENCER MARSTON, J. APPENDIX A The Court’s Rulings on Defendants’ Objections to the Commission’s Exhibits Exhibit Document Objection Ruling See Order on Deposition Investigative Testimony of Charles 25 Fed. R. Evid. 802 Designations Bowers, dated December 18, 2018
(forthcoming) See Order on Deposition Investigative Testimony of Daniel 26 Fed. R. Evid. 802 Designations Nemeth, dated December 18, 2018
(forthcoming) See Order on Deposition Deposition Testimony of Kathleen 29 Fed. R. Evid. 802 Designations McDermott, dated July 24, 2020
(forthcoming) See Order on Deposition Deposition Testimony of Ara Jabrayan, 30 Fed. R. Evid. 802 Designations dated November 5, 2020
(forthcoming) Declaration of Ara Jabrayan, 31 Fed. R. Evid. 802 SUSTAINED dated September 9, 2019 In re Arleen W. Hughes, 27 S.E.C. 629 73 Fed. R. Evid. 403 SUSTAINED (1948) Securities and Exchange Commission v. 74 Capital Gains Research Bureau, Inc., Fed. R. Evid. 403 SUSTAINED No. 84 S. Ct. 275 (1963) In re Kidder, Peabody & Co., Inc., 43 75 Fed. R. Evid.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SECURITIES AND EXCHANGE CIVIL ACTION COMMISSION,
Plaintiff, NO. 19-4229-KSM
v.
DEAN PATRICK MCDERMOTT, et al.,
Defendants.
ORDER
AND NOW, this 24th day of June, 2022, it is hereby ORDERED as follows: 1. Upon consideration of Defendants’ Motion to Preclude Evidence on the Timing of Prospectus Delivery (Doc. No. 82) and Plaintiff’s Opposition to Defendants’ Motion to Preclude Evidence on the Timing of Prospectus Delivery (Doc. No. 99), it is hereby ordered that Defendants’ Motion to Preclude Evidence on the Timing of Prospectus Delivery (Doc. No. 82) is DENIED. 2. Upon consideration of Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Irrelevant Brokerage Account Documents (Doc. No. 83) and Plaintiff’s Opposition to Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Irrelevant Brokerage Account Documents (Doc. No. 100), it is hereby ordered that Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Irrelevant Brokerage Account Documents (Doc. No. 83) is GRANTED. 3. Upon consideration of Defendants’ Motion in Limine to Preclude Evidence Referencing Commission and Judicial Opinions (Doc. No. 84) and Plaintiff’s Opposition to Defendants’ Motion in Limine to Preclude Evidence Referencing Commission and Judicial Opinions (Doc. No. 102), it is hereby ordered that Defendants’ Motion in Limine to Preclude Evidence Referencing Commission and Judicial Opinions (Doc. No. 84) is GRANTED. 4. Upon consideration of Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Certain Evidence or Testimony Related to Dean McDermott’s Ph.D. from LaSalle University (Doc. No. 85), Plaintiff’s Opposition to Defendants’ Motion in Limine to Preclude
Plaintiff from Introducing Certain Evidence or Testimony Related to Dean McDermott’s Ph.D. from LaSalle University (Doc. No. 101), and Plaintiff’s Supplemental Submission in Further Support of Its Opposition to Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Certain Evidence or Testimony Related to Dean McDermott’s Ph.D. from LaSalle University (Doc. No. 107), it is hereby ordered that Defendants’ Motion in Limine to Preclude Plaintiff from Introducing Certain Evidence or Testimony Related to Dean McDermott’s Ph.D. from LaSalle University (Doc. No. 85) is GRANTED. 5. Upon consideration of Defendants’ Motion to Preclude Evidence and References Related to Settlement Orders (Doc. No. 86) and Plaintiff’s Opposition to Defendants’ Motion to
Preclude Evidence and References Related to Settlement Orders (Doc. No. 102), it is hereby ordered that Defendants’ Motion to Preclude Evidence and References Related to Settlement Orders (Doc. No. 86) is GRANTED. 6. Upon consideration of Plaintiff’s Motion in Limine to Preclude Testimony Containing Legal Conclusions and Misstating the Law Concerning an Investment Adviser’s Duty to Act in Clients’ Best Interests and to Seek Best Execution (Doc. No. 87) and Defendants’ Response to Plaintiff’s Motion in Limine to Preclude Testimony Containing Legal Conclusions and Misstating the Law Concerning an Investment Adviser’s Duty to Act in Clients’ Best Interests and to Seek Best Execution (Doc. No. 96), it is hereby ordered that Plaintiff’s Motion in Limine to Preclude Testimony Containing Legal Conclusions and Misstating the Law Concerning an Investment Adviser’s Duty to Act in Clients’ Best Interests and to Seek Best Execution (Doc. No. 87) is GRANTED IN PART and DENIED IN PART. 7. Upon consideration of Plaintiff’s Motion in Limine to Preclude Evidence and Argument About Examinations Conducted by Other Entities (Doc. No. 88) and Defendants’
Opposition to Plaintiff’s Motion in Limine to Preclude Evidence and Argument About Examinations Conducted by Other Entities (Doc. No. 95), Plaintiff’s Motion in Limine to Preclude Evidence and Argument About Examinations Conducted by Other Entities (Doc. No. 88) is GRANTED IN PART and DENIED IN PART. 8. Upon consideration of Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Internal SEC Communications or the SEC Examination Process (Doc. No. 89) and Defendants’ Response to Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Internal SEC Communications or the SEC Examination Process (Doc. No. 94), it is hereby ordered that Plaintiff’s Motion in
Limine to Preclude Argument, Testimony, or Other Evidence Relating to Internal SEC Communications or the SEC Examination Process (Doc. No. 89) is DENIED. The Court reserves its ruling on the admissibility of the draft examination findings letters. The Commission SHALL produce the policies and procedures governing the examination process in effect during the Relevant Period, and such policies and procedures will be admissible at trial. 9. Upon consideration of Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Events Occurring After the Relevant Period (2013- 2014) (Doc. No. 90) and Defendants’ Opposition to Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Events Occurring After the Relevant Period (2013-2014) (Doc. No. 97), it is hereby ordered that Plaintiff’s Motion in Limine to Preclude Argument, Testimony, or Other Evidence Relating to Events Occurring After the Relevant Period (2013-2014) (Doc. No. 90) is DENIED. 10. Upon consideration of Plaintiff’s Motion in Limine to Treat Certain Witnesses as Adverse Parties (Doc. No. 91) and Defendants’ Response to Plaintiff’s Motion in Limine to
Treat Certain Witnesses as Adverse Parties (Doc. No. 98), it is hereby ordered that Plaintiff’s Motion in Limine to Treat Certain Witnesses as Adverse Parties (Doc. No. 91) is GRANTED IN PART and DENIED IN PART. It is FURTHER ORDERED that the objections to specific exhibits contained in the parties’ pretrial memoranda (Docs. No. 103 & 104), are GRANTED IN PART and DENIED IN PART, as detailed in Appendices A and B to this Order. IT IS SO ORDERED. /s/ Karen Spencer Marston ______________________________ KAREN SPENCER MARSTON, J. APPENDIX A The Court’s Rulings on Defendants’ Objections to the Commission’s Exhibits Exhibit Document Objection Ruling See Order on Deposition Investigative Testimony of Charles 25 Fed. R. Evid. 802 Designations Bowers, dated December 18, 2018
(forthcoming) See Order on Deposition Investigative Testimony of Daniel 26 Fed. R. Evid. 802 Designations Nemeth, dated December 18, 2018
(forthcoming) See Order on Deposition Deposition Testimony of Kathleen 29 Fed. R. Evid. 802 Designations McDermott, dated July 24, 2020
(forthcoming) See Order on Deposition Deposition Testimony of Ara Jabrayan, 30 Fed. R. Evid. 802 Designations dated November 5, 2020
(forthcoming) Declaration of Ara Jabrayan, 31 Fed. R. Evid. 802 SUSTAINED dated September 9, 2019 In re Arleen W. Hughes, 27 S.E.C. 629 73 Fed. R. Evid. 403 SUSTAINED (1948) Securities and Exchange Commission v. 74 Capital Gains Research Bureau, Inc., Fed. R. Evid. 403 SUSTAINED No. 84 S. Ct. 275 (1963) In re Kidder, Peabody & Co., Inc., 43 75 Fed. R. Evid. 403 SUSTAINED S.E.C. 911 (1968) Geman v. Securities and Exchange 76 Commission, 334 F.3d 1183 (10th Cir. Fed. R. Evid. 403 SUSTAINED 2003) In re IFG Network Securities, Inc., 77 Fed. R. Evid. 403 SUSTAINED S.E.C. Release No. 2533 (2006) In re Manarin Investment Counsel, Ltd., 82 Fed. R. Evid. 403 SUSTAINED S.E.C. Release No. 33-9462, et al. (2013) In re Montford & Co., Inc., S.E.C. 83 Fed. R. Evid. 403 SUSTAINED Release No. 3829 (2014) In re Donald L. Koch, SEC Release No. 84 Fed. R. Evid. 403 SUSTAINED 3836, et al. (2014) NASD Notice to Members: Unit 85 Investment Trust Sales, dated March Fed. R. Evid. 403 SUSTAINED 2004 Exhibit Document Objection Ruling “FINRA Fines Wachovia Units More than $4.5 Million for Failures Relating to 86 Fed. R. Evid. 403 SUSTAINED Trust and Mutual Fund Sales,” dated February 12, 2009 “FINRA Orders Sun Trust Investment Services to Pay $1.44 Million for 87 Unsuitable UIT, Closed-End Fund and Fed. R. Evid. 403 SUSTAINED Mutual Fund Transactions,” dated July 22, 2010 “Merrill Lynch to Pay More than $2.5 Million Related to UIT Sales Charge 88 Fed. R. Evid. 403 SUSTAINED Discount Failures,” dated August 18, 2010 Indictment, United States v. Thomas J. 89 Fed. R. Evid. 403 SUSTAINED Kirk Factual Basis, United States v. Thomas J. 90 Fed. R. Evid. 403 SUSTAINED Kirk Letter from Richard W. Westling to the Hon. Martin L.C. Feldman regarding 91 Fed. R. Evid. 403 SUSTAINED United States v. Thomas J. Kirk, dated November 1, 1996 Expert Report of Marti P. Murray, dated See Order on 92 Daubert December 18, 2020 Daubert Motions Expert Rebuttal Report of Marti P. See Order on 93 Daubert Murray, dated January 15, 2021 Daubert Motions “Management Fee Rate Changes for 108 Individual Accounts, Q1 2013 – Q4 Fed. R. Evid. 403 OVERRULED 2014” “Portion of Accounts Always Charged 109 Less than Schedule Advisory Fee Rate Fed. R. Evid. 403 OVERRULED (2013 – 2014)” APPENDIX B The Court’s Rulings on the Commission’s Objections to Defendants’ Exhibits Exhibit Document Objection Ruling MIS Certificate of Organization- 201 Fed. R. Evid. 403 OVERRULED Domestic Limited Liability Company MIA Certificate of Conversion and 202 Fed. R. Evid. 403 OVERRULED Articles of Organization 203 MIA SEC Registration Fed. R. Evid. 403 OVERRULED MIA–MIS Intercompany Sharing 204 Fed. R. Evid. 403 OVERRULED Agreement 232 RBC Settlement Statements RULING – (Commission Run), dated monthly from Fed. R. Evid. 403 RESERVED 266 February 2015 – December 2016 268 RBC Best Execution “Regular and Fed. R. Evid. 403; – Rigorous Review for Q1 2013 – Q4 OVERRULED Fed. R. Evid. 802 273 2014 MIA Regular Discretionary Investment 276 Fed. R. Evid. 403 OVERRULED Advisory Agreement RBC Prospectus Delivery Confirmation 305 Fed. R. Evid. 802 OVERRULED Reports OVERRULED as to slides regarding prospectus 306 RBC Reports Manual Fed. R. Evid. 403 delivery; SUSTAINED otherwise1 FINRA, Report on the Examination of 307 McDermott Investment Services, LLC, Fed. R. Evid. 403 SUSTAINED dated October 25, 2013 Letter from Eugene Bleier, FINRA, to 308 Dean McDermott, dated December 2, Fed. R. Evid. 403 SUSTAINED 2013 Email from Dean McDermott to Ara Fed. R. Evid. 403; RULING 309 Jabrayan re: “Regulatry [sic] Office Fed. R. Evid. 802 RESERVED Visit,” dated April 29, 2014 Email from Dean McDermott to Mike Fed. R. Evid. 403; RULING 310 Burnidge re: “Phone Call,” dated July Fed. R. Evid. 802 RESERVED 11, 2014 Email from Dean McDermott to Mike Fed. R. Evid. 403; RULING 311 Burnidge re: “Commissions Fed. R. Evid. 802 RESERVED discussions,” dated July 15, 2014 Letter from Caroline Holmes, Florida 312 Office of Financial Regulation, to Dean Fed. R. Evid. 403 OVERRULED McDermott, dated July 14, 2015
1 The Court encourages the parties to stipulate to the facts and timing of prospectus delivery. Exhibit Document Objection Ruling Email from Mark Fowler to Karen 313 Ackerman, et al., re: “McDermott,” Fed. R. Evid. 403 OVERRULED dated December 4, 2013 Email from Cesar Davis to Mark Fowler, 314 et al., re: “McDermott Investment Fed. R. Evid. 403 OVERRULED Services, LLC,” dated December 3, 2013 Email from Mark Fowler to Karen Ackerman, et al., re: “McDermott 319 Fed. R. Evid. 403 OVERRULED Investment Services,” dated December 19, 2013 Mark Fowler Handwritten Notes re: Fed. R. Evid. 403; “McDermott Investment” Fed. R. Evid. 802 Email from Mark Fowler to Karen 322 Ackerman re: “McDermott Investment Fed. R. Evid. 403 OVERRULED Services,” dated January 3, 2014 Email from Mark Fowler to Diane Hagy 323 re: “McDermott Examination UIT Fed. R. Evid. 403 OVERRULED Case,” dated February 11, 2014 Email from Mark Fowler to Karen 325 Ackerman re: “McDermott,” dated Fed. R. Evid. 403 OVERRULED March 7, 2014 Email from Mark Fowler to Diane Hagy 328 Fed. R. Evid. 403 OVERRULED re: “McDermott,” dated April 9, 2014 Email from Mark Fowler to Diane Hagy 329 re: “McDermott Investment Securities,” Fed. R. Evid. 403 OVERRULED dated April 14, 2014 Draft letter from Diane Hagy to Dean McDermott re: “Examination of: Fed. R. Evid. 403; RULING 331 McDermott Investment Services, LLC,” Fed. R. Evid. 802 RESERVED dated August XX, 2014 Draft letter from Diane Hagy to Dean McDermott re: “Examination of: Fed. R. Evid. 403; RULING 332 McDermott Investment Services, LLC,” Fed. R. Evid. 802 RESERVED dated August XX, 2014 Email from Mark Fowler to Karen 333 Ackerman re: “McDermott,” dated Fed. R. Evid. 403 OVERRULED September 17, 2014 Email from Paul Lapinski to Dean McDermott re: “Follow-up request from 334 Fed. R. Evid. 403 OVERRULED Examination – December 2013,” dated October 10, 2014 Exhibit Document Objection Ruling “Examination Information for Broker- Dealers, Transfer Agents, Clearing 335 Fed. R. Evid. 403 SUSTAINED Agencies, Investment Advisers, and Investment Companies”2 Email from Mark Fowler to Karen 336 Ackerman re: “McDermott,” dated Fed. R. Evid. 403 OVERRULED December 15, 2014 Email from Paul Lapinski to Mark 337 Fowler re: “McDermott Sarkauskas Fed. R. Evid. 403 OVERRULED proceeding,” dated February 20, 2015 Letter from Diane Hagy to Dean McDermott re: “Examination of 338 Fed. R. Evid. 403 OVERRULED McDermott Investment Services, LLC,” dated January 6, 2015 Email from Karen Ackerman to Mark 339 Fowler re: “McDermott,” dated January Fed. R. Evid. 403 OVERRULED 9, 2015 Letter from Dean McDermott to Diane Hagy re: “Examination of; McDermott 340 Fed. R. Evid. 403 OVERRULED Investment Services,” received February 3, 2015 Email from Mark Fowler to Diane Hagy 341 re: “McDermott response – update,” Fed. R. Evid. 403 OVERRULED dated February 4, 2015 “Significant Exam Findings: McDermott 342 Investment Services, LLC and Fed. R. Evid. 403 OVERRULED McDermott Investment Advisors, LLC” Email from Mark Fowler to Paul 343 Lapinski re: “McDermott,” dated Fed. R. Evid. 403 OVERRULED February 20, 2015 Email from Karen Ackerman to Mark 344 Fowler re: “McDermott,” dated February Fed. R. Evid. 403 OVERRULED 19, 2015 Email from Karen Ackerman to Mark 345 Fowler re: [redacted], dated March 24, Fed. R. Evid. 403 OVERRULED 2015 Email from Diane Hagy to Karen 346 Ackerman, et al., re: “McDermott KPI,” Fed. R. Evid. 403 OVERRULED dated March 31, 2015 Email from Diane Hagy to Brian 347 Sniveley, et al., re: “PLRO McDermott Fed. R. Evid. 403 OVERRULED KPI.docx,” dated April 7, 2015
2 To the extent the Commission is unable to produce a document showing the policies and procedures in effect during the Relevant Period, Defendants may move to introduce Exhibit 335 at trial. Exhibit Document Objection Ruling Email from Karen Ackerman to Mark 348 Fowler re: “Questions re McDermott,” Fed. R. Evid. 403 OVERRULED dated April 9, 2015 Email from Mark Fowler to Karen 349 Ackerman re: “McDermott – material Fed. R. Evid. 403 OVERRULED requests,” dated April 9, 2015 Email from Karen Ackerman to Mark 350 Fowler re: “Call on McDermott,” dated Fed. R. Evid. 403 OVERRULED April 9, 2015 Email from Karen Ackerman to Mark 351 Fowler re: “McDermott,” dated April 9, Fed. R. Evid. 403 OVERRULED 2015 Email from Mark Fowler to Karen 352 Ackerman re: “McDermott,” dated April Fed. R. Evid. 403 OVERRULED 13, 2015 Email from Diane Hagy to Mark Fowler 353 re: “BD Staff Meeting,” dated April 30, Fed. R. Evid. 403 OVERRULED 2015 Email from Karen Ackerman to Mark 354 Fed. R. Evid. 403 OVERRULED Fowler re: [redacted], dated May 1, 2015 Email from Karen Ackerman to Diane 355 Hagy re: “Thursday – McDermott,” Fed. R. Evid. 403 OVERRULED dated May 15, 2015 Email from Diane Hagy to Karen 356 Ackerman re: “McDermott,” dated May Fed. R. Evid. 403 OVERRULED 18, 2015 Notes re: “McDermott Investment 359 Fed. R. Evid. 403 OVERRULED Services, LLC” 360 Joint Rule 26(f) Report Fed. R. Evid. 403 SUSTAINED 361 Plaintiff’s Initial Disclosures Fed. R. Evid. 403 SUSTAINED Plaintiff Securities and Exchange Fed. R. Evid. 403 Commission’s Statement of Undisputed 362 (with exception of SUSTAINED Facts in Support of its Motion for undisputed facts) Summary Judgment Defendants’ and Relief Defendant’s Fed. R. Evid. 403 363 Statement of Additional Facts that (with exception of SUSTAINED Preclude Summary Judgment undisputed facts) Plaintiff’s Response to Defendants’ and Fed. R. Evid. 403 364 Relief Defendant’s Statement of (with exception of SUSTAINED Additional Facts undisputed facts) 365 Sales Charges Analysis (2013 – 2014) Fed. R. Evid. 403 OVERRULED 366 Sales Charges Analysis (2013 – 2017) Fed. R. Evid. 403 SUSTAINED