Case 1:12-cv-07261-TPG Document 37

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SECURITIES AND EXCHANGE COMMISSION, CIVIL ACTION Plaintiff, v. 8000, INC., JONATHAN E. BRYANT, THOMAS J. KELLY, and CARL N. DUNCAN, Defendants. NO. 12-cv-7261 (TPG)

DEFENDANT THOMAS J. KELLYS MOTION FOR LEAVE TO FILE SUR-REPLY IN OPPOSITION TO SECURITIES AND EXCHANGE COMMISSIONS MOTION REQUESTING REMEDIES Defendant Thomas J. Kelly respectfully requests leave to file the attached Sur-reply in Opposition to the Securities and Exchange Commissions (the SECs or the Commissions) Motion Requesting Remedies. 1. Defendant seeks to file a Sur-reply for the limited purpose of addressing issues

and facts raised or argued in the Commissions Reply for the first time in this proceeding, which misstate Mr. Kellys positions and which raise purported disagreements concerning Mr. Kellys finances. A copy of the proposed Sur-Reply in Opposition to the Commissions Motion for Remedies is attached hereto as Exhibit A. 2. Mr. Kelly submitted summaries of applicable financial information in connection

with his Response, but refrained from filing the voluminous and confidential underlying financial documents which had been provided previously during the course of this matter to the Commission.

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3.

Until filing its Reply, the Commission has not ever suggested that it viewed Mr.

Kellys financial information as substantively in disputerather, that it was subject to a question of relevancy in the Courts assessment of financial remedies. The Commission now suggests that it disputes the facts regarding Defendants expenses spent on behalf of 8000, Inc. and Defendants financial inability to pay. 4. Nevertheless, in his Response, Mr. Kelly requested the opportunity to submit

underlying documentation if factual issues regarding the financial information were placed in dispute by the Commission or if the Court deemed such materials helpful to its consideration. Mr. Kelly respectfully requests the opportunity to submit those materials now. 5. Mr. Kelly has submitted to the Court a Supplemental Declaration attaching

financial documents for filing under seal, and a redacted copy of that Supplemental Declaration, without exhibits, is attached to this Motion as Exhibit B. 6. In addition to the Commissions suggestion that financial information that it

received previously might be in dispute, the Commission has made assertions in its Reply concerning the circumstances and basis for its prior calculations for disgorgement, and concerning Mr. Kellys cooperation with the federal governmentsome of which appear to call into question Mr. Kellys counsels integrity, and all of which necessitate the attached short reply and supplemental declaration of Mr. Kelly.

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WHEREFORE, Defendant respectfully requests that the Court grant this Motion for Leave to File Sur-reply to briefly address these issues which the Commission now places in dispute. Respectfully submitted, DUANE MORRIS LLP By: /s/Daniel R. Walworth Michael M. Mustokoff (pro hac vice) Daniel R. Walworth 30 S. 17th Street Philadelphia, Pennsylvania 19103-4196 Tel.: (215) 979-1810/(215) 979-1194 Fax.: (215) 689-3607/(215) 405-2917 mmustokoff@duanemorris.com dwalworth@duanemorris.com Evangelos Michailidis 1540 Broadway New York, NY 10036-4086 Tel: (212) 471-1864 Fax: (212) 214-0650 Email: emichailidis@duanemorris.com Attorneys for Defendant Thomas J. Kelly

Dated: November 21, 2013

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CERTIFICATE OF SERVICE On the 21st day of November 2013, I caused a copy of the foregoing Defendant Thomas J. Kellys Motion for Leave to File a Sur-reply in Opposition to the Securities and Exchange Commissions Motion Requesting Remedies, attached Memorandum of Law, redacted supporting Supplemental Declaration of Thomas J. Kelly, and proposed form of order to be served on all counsel of record in this action via hand delivery. Copies of the foregoing have also been served on Jonathan Bryant at his email address: jonathan@tbgfunds.com. /s/Daniel R. Walworth Daniel R. Walworth