UNITED STATES SECURITIES AND EXCHANGE COMMISSION v. ITT EDUCATIONAL SERVICES, INC. et al
| UNITED STATES SECURITIES AND EXCHANGE COMMISSION |
| DANIEL M. FITZPATRICK, ITT EDUCATIONAL SERVICES, INC. and KEVIN M. MODANY |
| 1:2015cv00758 |
| May 12, 2015 |
| US District Court for the Southern District of Indiana |
| Indianapolis Office |
| Mark J. Dinsmore |
| Jane Magnus-Stinson |
| Securities/Commodities |
| 15 U.S.C. ยง 77 Securities Fraud |
| Plaintiff |
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Filing
319
ORDER - Plaintiff United States Securities and Exchange Commission (the "SEC") has sued Defend-ants Kevin Modany, the former Chief Executive Officer of ITT Educational Services, Inc. ("ITT"), and Daniel Fitzpatrick, the former C hief Financial Officer of ITT, alleging that they violated federal securities laws in connection with two student loan programs created by ITT for ITT students. The SEC and Defendants have filed Motions in Limine in advance of the July 9, 2018 tr ial in this matter, and those motions are now ripe for the Court's consideration. [Filing No. 280 ; Filing No. 282 .] For the reasons discussed in this Order, the SEC's Motion in Limine, 280 , is GRANTED IN PART and DENIED IN PART as follows: Motion in Limine #1 is DENIED; Motion in Limine #2 is DENIED; Motion in Limine #3 is DENIED; Motion in Limine #4 is GRANTED; Motion in Limine #5 is DENIED; and Motion in Limine #6 is GRANTED. Defendants' Motion in Limine, 282 , is D ENIED in all respects. To the extent the parties' objections to exhibits do not already reflect which objections fall within the Motions in Limine, and given the volume of exhibits and objections to those exhibits, the Court ORDERS the parties to file updated objections by noon on June 20, 2018 reflecting which objections have now been resolved by this Order. The parties shall work next week to resolve objections, agree to summaries and/or stipulations, and file a joint report of their efforts by noon on June 22, 2018. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 6/15/2018. (APD)
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Filing
274
ORDER - On May 16, 2018, Plaintiff United States Securities and Exchange Commission ("SEC") filed a Notice of Stipulation of Dismissal of Certain Claims in which it advised that it was dismiss-ing several claims with prejudice against De fendants Kevin Modany and Daniel Fitzpatrick in advance of the July 9, 2018 jury trial scheduled in this matter. The Court acknowledges the Stipulation, but treats it as a Motion to Amend the Complaint pursuant to the Seventh Circuit Court of Appe als' instruction. The SEC's Notice of Stipulation, treated as a Motion to Amend the Complaint, is GRANTED. 273 . For purposes of clarity moving forward, the SEC is ORDERED to file an Amended Complaint, which includes only the claims that remain pending for the July 9, 2018 trial, by June 8, 2018. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 5/17/2018.(APD)
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Filing
264
ORDER - Defendants' Motion to Exclude Certain Testimony and Opinions of R. Larry Johnson is GRANTED IN PART and DENIED IN PART as set forth in Order. For the foregoing reasons, the Court: GRANTS Defendants' Motion to Exclude the Report, Tes timony, and Opinions of Harvey L. Pitt, 197 ; GRANTS the SEC's Motion to Preclude the Testimony of Defendants' Expert David B.H. Martin, 201 ;GRANTS Defendants' Motion to Exclude the Report, Testimony, and Opinions of Kevin Kinser, P h.D, 199 ; GRANTS the SEC's Motion to Preclude the Testimony of Defendants' Expert Roger Meiners, 203 ; DENIES Defendants' Motion to Exclude Certain Testimony and Opinions of Anjan V. Thakor, Ph.D, 206 ; and GRANTS IN PART and DENIES IN PART as set forth above Defendants' Motion to Exclude Certain Testimony and Opinions of R. Larry Johnson, 208 . SEE ORDER. Signed by Judge Jane Magnus-Stinson on 4/19/2018. (JRB)
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Filing
259
ORDER - Plaintiff United States Securities and Exchange Commission (the "SEC") initiated this litigation against ITT Educational Services, Inc. ("ITT"), Kevin Modany, and Daniel Fitzpatrick in May 2015, alleging that Defendan ts violated various federal securities laws in connection with two student loan programs created by ITT for ITT students. Specifically, the SEC alleges that when the loan programs exhibited high default rates and ITT's guarantee obligatio ns increased, Defendants engaged in various deceptive acts to conceal the condition of the loan programs and the impact on ITT's financial condition. The SEC and ITT reached a settlement, but claims against Mr. Modany and Mr. Fitzpatrick r emain pending. Both the SEC on the one hand, and Mr. Modany and Mr. Fitzpatrick on the other, have filed Motions for Partial Summary Judgment, [Filing No. 225 ; Filing No. 227 ], which are now ripe for the Court's decision. For the reaso ns stated in this Order, the Court GRANTS IN PART and DENIES IN PART the SEC's Motion for Summary Judgment, 225 , and GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment, 227 , as discussed herein. Specifically, t he Court GRANTS summary judgment on the following claims or issues: That violative acts in connection with statements in the Form 10-Q for the third quarter 2012, the Forms 10-Q for Q1-Q3 2013, and the 2012 Form 10-K, and during conference calls o ccurred through the use of interstate commerce; that Mr. Modany and Mr. Fitzpatrick are considered control persons for claims related to representations in public filings which they signed; and that the SEC's claim for primary liability for Mr. Modany and Mr. Fitzpatrick under § 17(a)(2) of the Securities Act fails as a matter of law. All other claims and issues remain pending for trial. No partial final judgment shall enter at this time. The parties are encouraged and expected to work toward stipulating to as many facts and legal issues as possible in advance of the July 9, 2018 trial. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 3/23/2018. (APD)
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Filing
141
ORDER granting Plaintiff's 132 Motion to Compel. See Order for details. If Plaintiff intends to seek attorney's fees from Counsel for the Bankruptcy Trustee pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), it may file and serve a motion for such fees on or before January 17, 2017. Any response must be filed on or before January 24, 2017. Any reply is due on or before January 31, 2017. Signed by Magistrate Judge Mark J. Dinsmore on 1/3/2017. (SWM)
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