United States District Court, S.D. Indiana, Indianapolis Division
U.S. SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
GARY S. WILLIKY, Defendant.
ENTRY ON MOTION FOR RECONSIDERATION
William T. Lawrence, Senior Judge
cause is before the Court on the Defendant's Motion for
Reconsideration and the Plaintiff's response thereto
(Dkt. Nos. 64 and 66). The Defendant did not file a reply in
support of the motion, and the time for doing so has expired.
The Court, being duly advised, DENIES the
Defendant's motion for the reasons set forth below.
August 3, 2018, pursuant to the bifurcated settlement
agreement, Dkt. No. 34, and upon a determination of the
Plaintiff's motion for penalties, Dkt. No. 48, the Court
ordered that the Defendant pay (1) disgorgement of $798, 217
for insider trading, along with $159, 110.13 in prejudgment
interest; (2) disgorgement of $65, 617 for scalping emails,
along with $14, 866.97 in prejudgment interest; (3) a civil
penalty of $150, 000 for the non-insider trading counts; and
(4) a civil penalty of $1, 596, 434 for insider trading. On
August 30, 2018, the Defendant moved for reconsideration of
the Court's decision to impose a civil penalty of $1,
596, 434 for insider trading, an amount equal to two times
the ill-gotten gains.
purpose of a motion to alter or amend judgment under Federal
Rule of Civil Procedure 59(e) is to have the Court reconsider
matters “properly encompassed in a decision on the
merits.” Osterneck v. Ernst and Whinney, 489
U.S. 169, 174 (1988). To receive relief under Rule 59(e), the
moving party “must clearly establish (1) that the court
committed a manifest error of law or fact, or (2) that newly
discovered evidence precluded entry of judgment.”
Edgewood Manor Apartment Homes, LLC v. RSUI Indem.
Co., 733 F.3d 761, 770 (7th Cir. 2013). A
“manifest error” means “wholesale
disregard, misapplication, or failure to recognize
controlling precedent.” Oto v. Metropolitan Life
Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Relief
through a Rule 59(e) motion for reconsideration is an
“extraordinary remed[y] reserved for the exceptional
case.” Foster v. DeLuca, 545 F.3d 582, 584
(7th Cir. 2008).
Defendant makes several arguments in support of its motion
for reconsideration. The Court will address each of these
arguments in turn.
the Defendant argues “that the Court's August 3,
2018 order was a result of mistake . . . in that the Court
was not presented with a clear understanding of the extent of
[the Defendant's] cooperation . . . .” Dkt. No. 64
at 5. Specifically, the Defendant argues that “he was
not able to respond to the Declarations of Victoria Madtson
or Scott Hlavecek, which were attached as Exhibits 5 and 12
to the [Plaintiff's] Reply . . . .” Id.
Notably, however, the Defendant did not seek leave to file a
sur-reply to rebut the Plaintiff's claims.
even considering the substance of the Defendant's
arguments, the Defendant's arguments fail. As the
Plaintiff notes, the Defendant “presents no new, let
alone newly discovered, evidence.” Dkt. No. 66 at 4.
Instead, the Defendant points to previously submitted
evidence and argues that to the extent Court relied on such
evidence, it did so mistakenly and therefore reconsideration
is required. The Defendant, however, fails to point to any
part of the Court's opinion which suggests that any error
was made. The Defendant's argument amounts to a
disagreement with the conclusion and a bare assertion that
the conclusion must have been due to a mistaken reliance on
the evidence. Without more, the Court is not convinced that
reconsideration of its decision is appropriate.
the Defendant cites the Plaintiff's reliance on
S.E.C. v. Alanar, Inc., No. 1:05-cv-1102, 2008 WL
2410422 (S.D. Ind. May 6, 2008), in its reply brief as
somehow indicative of an error on the part of the Court
requiring reconsideration. Again, the Defendant did not seek
leave to file a sur-reply. Nevertheless, the Defendant seems
to argue that because his case is distinguishable from
Alanar, his penalty should be reduced. The
Defendant, however, fails to point to any misapplication of
Alanar by the Court which would require
reconsideration. Indeed, Alanar is not even cited in
the Court's August 3, 2018, entry. Finding no
misapplication of law, the Court rejects the Defendant's
remainder of the Defendant's brief is spent describing
evidence provided by the Defendant to the government and its
alleged value. Nowhere, however, does the Defendant present
new evidence or argue that the Court misconstrued the
evidence. Instead, the Defendant's contention is that
because the Court did not consider the Defendant's
cooperation in a manner that led to a lesser penalty, it was
erroneous. The Court, however, rejects this contention, and
notes that it did consider the Defendant's cooperation.
See Dkt. No. 62 at 16 (“While [the Defendant]
argues that his penalty should be reduced as result of his
cooperation, his cooperation was of limited value.”)
(internal citations omitted). Accordingly, the Court
DENIES the Defendant's motion for