Securities & Exchange Commission v. Wyly

107 F. Supp. 3d 260, 2015 U.S. Dist. LEXIS 11935, 2015 WL 427423
CourtDistrict Court, S.D. New York
DecidedFebruary 2, 2015
DocketNo. 10 Civ. 5760(SAS)
StatusPublished
Cited by1 cases

This text of 107 F. Supp. 3d 260 (Securities & Exchange Commission v. Wyly) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Securities & Exchange Commission v. Wyly, 107 F. Supp. 3d 260, 2015 U.S. Dist. LEXIS 11935, 2015 WL 427423 (S.D.N.Y. 2015).

Opinion

[262]*262 MEMORANDUM OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

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 28, 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 violar tions.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.

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.”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 intervening change of controlling law, the availability of new'evidence, or the need to corréct a clear error or prevent manifest injustice.”6

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.7 They point to evidence showing that Dr. Becker did not, in fact, fully account for that difference, and then proceed to repeat the same arguments made during the three-day hearing to argue that this comparison is inaccurate and therefore not a reasonable approximation of the Wylys’ ill-gotten gains.

The Court was not misled by Dr. Becker’s testimony. In the December 19 Or[263]*263der, I described the steps Dr. Becker took to compare the Wylys’ rate of return with that of a.buy-and-hold.investor in the underlying stock.8 First, Dr. Becker treated the transfer of the option as a “purchase” for the value of the option. Then, on the date of exercise, she treated the exercise price as an additional purchase. I stated that “[i]n this way, Dr. Becker accurately tracks the amounts of capital that the Wylys had tied up in the offshore system.”9 I then concluded that this comparison was accurate.

■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.10 Dr. Becker also clarified in her testimony, cited in the December 19 Order, that she was “calculating the benefit [the Wylys got] from the ability to delay the payment” of the exercise price. Thus Dr. Becker explicitly recognized that although the rates of return did differ, she still considered the'comparison to be’ accurate because the Wylys were able to delay the actual payment of the exercise price and benefitted from that delay.

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.11 Dr. Becker disagreed, and explained her reasons for determining that Measure 1 was a more reasonable approximation of the Wylys’ ill-gotten gains. She stated:

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]*264their 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.13

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.14 However, Dr. Becker could not have made this comparison, because there is no market for the types of options in which the Wylys traded. Dr. Becker explained that, with regard to the transfer of Sterling Commerce options in 1996, an ordinary buy-and-hold investor could not have purchased an option for a price as low as $24. The Court recognized this at the time: “[S]he’s saying there is no comparison in the real world that can be made.

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Bluebook (online)
107 F. Supp. 3d 260, 2015 U.S. Dist. LEXIS 11935, 2015 WL 427423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-exchange-commission-v-wyly-nysd-2015.