UNITED STATES OF AMERICA

Before the

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Administrative Proceedings Rulings

Release No. 6830 / September 10, 2021

Administrative Proceeding

File No. 3-20454

In the Matter of

Kimberly D. Butler,

Prosperity Economics Partners, 

LLC, and

Partners for Prosperity, LLC

Scheduling Order and 

Hearing Guidelines

At my request the parties submitted a joint prehearing statement with a 

proposed schedule. After discussing the proposal with the parties at the 

prehearing conference held on September 8, 2021, I ORDER the following 

schedule: 

November 30, 2021: Fact discovery closes.

December 7, 2021: Exchange and file expert reports and disclosures.

December 14, 2021: File motions for summary disposition.

January 4, 2022: File oppositions to motions for summary disposition.

January 11, 2022: File replies to motions for summary disposition.

Exchange and file witness and exhibit lists.

February 1, 2022: File prehearing briefs.

File motions in limine, including any objections to 

witness and exhibit lists.

File stipulations, admissions of fact, and requests for

official notice.
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February 1, 2022: Deadline for requests under Rule 232 for subpoenas 

requiring the attendance and testimony of a witness 

at the hearing.

February 8, 2022: Final telephonic prehearing conference.

February 15, 2022: Hearing begins, either virtually or in person at a 

location to be determined in Texas.

Hearing Guidelines

I will follow the general guidelines described below during these 

proceedings. The parties should review what follows and promptly raise any 

objections they may have to the application of these guidelines in this matter. 

1. Subpoenas. A party’s motion to quash a subpoena will be due within five 

business days of the submission of the subpoena for signing. Any opposition 

to the motion to quash will be due within five business days thereafter. 

2. Exhibits. The parties should confer and attempt to stipulate to the 

admissibility of exhibits. To avoid duplication of exhibits, the parties 

should identify joint exhibits. Exhibits are not filed with the Office of the 

Secretary until the close of the hearing at my instruction.

3. Exhibit lists. A comprehensive exhibit list prevents other parties from 

being surprised in the middle of the hearing. Given this fact, exhibit lists 

shall be exchanged among the parties and should include all documents 

that a party expects to use in the hearing for any purpose. This includes 

documents that are relevant only for impeachment purposes or which are 

presumptively inadmissible. The parties should serve their opponents with 

any amendments to their individual exhibit list. Because I rely on the 

parties’ exhibit lists, the parties should submit electronic copies of their 

final exhibit lists to my office and provide me with a paper copy of their 

final exhibit lists at the beginning of an in-personhearing. There is no need 

in the interim to submit amendments to my office. Following the hearing, 

I will issue a separate order directing the parties to file a list of all exhibits, 

admitted and offered but not admitted, together with citations to the record 

indicating when each exhibit was admitted.

4. Expert reports and testimony. Expert witness disclosures must comply with 

Rule of Practice 222(b)(1). Because this Rule is modeled on Federal Rule of 

Civil Procedure 26(a)(2)(B), the parties should look to Rule 26(a)(2)(B) and 

cases interpreting it for guidance. Failure to comply with the requirements 
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of Rule 222(b) may result in the striking of an expert’s report.1 The filing 

of the expert’s report according to the prehearing schedule essentially 

constitutes the filing of the expert’s direct testimony. During the hearing, 

the expert will not be subject to direct examination, and will simply be 

sworn in and proffered for cross-examination.On request, however, a party 

may conduct a brief direct examination of the party’s expert.

5. Hearing schedule. The first day of the proceeding will begin at 9:30 a.m. 

Unless circumstances require a different schedule, we will begin each 

subsequent day at 9:00 a.m. Each day of the proceeding should last until 

at least 5:15 p.m. I generally take one break in the morning, lasting about 

fifteen minutes, and at least one break in the afternoon. I generally break 

for lunch between noon and 12:30 p.m., for about one hour.

6. Hearing issues—Examination.

a. In general, the Division of Enforcement presents its case first because 

it has the burden of proof. Respondents then present their case. If 

necessary, the parties may agree to proceed in some other order and 

may take witnesses out of order.

b. If the Division calls a non-party witness that Respondents also wish to 

call as a witness, Respondents should cross-examine the witness as if 

they were calling the witness in their own case. This means that 

Respondents’ cross-examination of the witness in this circumstance 

may exceed the scope of what was covered by Division’s direct 

examination of that same witness. This will avoid the need to recall a 

witness just so the witness can testify for Respondents’ case.

c. I am flexible regarding the manner of presenting the testimony of 

Respondent Butler, so long as the parties agree on it. By way of 

example, if the Division calls Butler as its last witness, the parties may 

agree that Respondents will conduct the direct examination, followed 

by the Division’s cross-examination, which may exceed the scope of 

Respondents’ direct examination of Butler. In the absence of any 

agreement, Butler’s testimony will proceed in the usual manner, i.e., 

she will be called as a witness and examined potentially multiple times.

If the Division calls Butler as a witness and she later testifies as part 

of her own case, the Division’s cross-examination during Respondents’

case will be limited to the scope of Respondents’ direct examination.

 

1 Cf. Fed. R. Civ. P. 37(c).
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d. In general, cross-examination may be conducted by leading questions, 

even as to Division witnesses that Respondentswish to call in their own 

case. Counsel may not lead his or her client, however. As a result, if 

Butler is called as a witness in the Division’s case, her counsel may not 

ask leading questions on cross-examination. Similarly, if a Commission 

employee is called as a witness for Respondents, the Division may not 

ask leading questions on cross-examination.

e. Avoid leading questions on direct examination. Leading questions 

during direct examination of a non-hostile witness are objectionable. 

Repeatedly having to rephrase leading questions slows down the 

hearing.

7. Pleadings. Prehearing and post-hearing briefs are limited to 14,000 

words.2 Although parties may seek leave to exceed this limit through a 

motion filed seven days in advance of the relevant briefing deadline, such 

motions will not be viewed favorably. To enhance the readability of 

pleadings, I urge counsel to limit the use of acronyms to those that are 

widely known.3 For the same reason, I ask that counsel use the same font 

size in footnotes as that used in the body of a pleading.

/s/ James E. Grimes

Administrative Law Judge

 

2 Cf. 17 C.F.R. § 201.450(c) (imposing a word-limit for briefs filed before the 

Commission).

3 See Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of 

Persuading Judges 120–22 (2008); see also Del. Riverkeeper Network v. FERC, 

753 F.3d 1304, 1320–21 (D.C. Cir. 2014) (Silberman, J., concurring).