A federal judge this week dismissed portions of the Securities and Exchange Commission's (SEC) case against two former executives of IndyMac Bank, the now defunct Alt-A giant that was initially started by Countrywide Financial Corp.
U.S. District Judge Manuel Real of California's Southern District dismissed SEC civil charges stemming from five securities filings against former chief executive Michael Perry and chief financial officer A. Scott Keys.
The two men presided over the Alt-A/subprime firm’s notorious collapse. The SEC alleged that the men repeatedly misled investors about IndyMac's need to raise new capital and eliminate dividends, among other things.
Some of the things that the SEC said that IndyMac should have disclosed were not strictly required, the judge found, writing that "firms are not required to disclose all internal projections, even if they provide additional information."
The case also showed the fallout of Janus Capital Group v. First Derivative Traders, a 2011 U.S. Supreme Court case that made it much harder for the government to pin false statements to executives if they were directly penned by underlings.
"The maker of a statement is the person or entity that [has] ultimate authority over the statement, including its content and whether and how to communicate it," the judge said, citing Janus. "Because Defendants in no way participated in the preparation and release of the [incorrect] prospectuses, they cannot be held liable for their content."
Judge Real also found that the SEC's demand for disgorgement was unreasonable given that the men had not sold their stock in the period leading up to the crisis.
Perry still faces a $600 million Federal Deposit Insurance Corp. lawsuit alleging negligence in his management of the bank. He has built a website, www.nottoobigtofail.org, to dispute the charges publicly.