Thursday, February 4, 2010

SEC v. Bank of America Round Two: Bank Of America Seeks To Pay $150 Million To Make The SEC Go Away

In September I posted a piece on the blog discussing Judge Jed Rakoff’s unusual rejection of a proposed settlement between the Securities Exchange Commission ("SEC") and Bank of America surrounding the solicitation of shareholder proxies to purchase Merrill Lynch & Co. The SEC alleged in its original Complaint that Bank of America failed to adequately disclose information relating to Merrill Lynch bonuses to shareholders as part of the acquisition. Well, as promised, my post today is an update designed to bring you up to speed on the SEC v. Bank of America litigation. At the outset, it should be noted that just about one month ago, in January, the SEC amended its Complaint to allege that Bank of America failed to disclose Merrill Lynch & Co.’s expected losses to shareholders.

On Thursday, February 2, 2010, Bank of America agreed to pay a settlement of $150 million to the SEC to dispose of claims that Bank of America misled shareholders in relation to bonuses and losses at Merrill Lynch. Again, this settlement is subject to the approval of United States District Court Judge Jed Rakoff. Recall, that in September 2009 Judge Rakoff rejected a proposed $33 million settlement between Bank of America and the SEC as unfair and unreasonable.

As part of the settlement, Bank of America would have to take a number of steps over the course of the next three (3) years to reinforce corporate governance and internal control measures. In a court filing on Thursday, in seeking Judge Rakoff’s support the SEC noted: “The relief contemplated by the proposed order is fair, reasonable, adequate and in the public interest…” Certainly, Judge Rakoff will have the final word. It will be interesting to see if Judge Rakoff decides to approve this current settlement proposal.


  1. Under the terms of the settlement proposed Thursday, Bank of America would pay $150 million to shareholders hurt by the nondisclosure. - New York Times

    Wow, shareholders misled by BofA will receive $150 million dollars of their own money - less lawyers fees - in compensation. Now that's what I call justice.

    It will be interesting to see if Judge Rakoff decides to approve this current settlement proposal.

    No, he should really stick it to BofA and force them to return even more of the shareholders own money back to them in compensation. Minus even larger lawyers fees of course.

  2. I agree with this anonymous post in that, it will be interesting to see of Rakoff decides to accept this settlement. He had previously dismissed with some harsh words, a settelment between the SEC and BOA for some 30 million dollars. Another side of this story that I find interesting is that at the same time the SEC agreed to settle so did North Carolina, while New York has decided to push forward with suits against the bank's executives.
    While most of the legal action has been directed directly at BOA, New York's Cuomo, is going directly after Ken Lewis and Joe Price (the bank's former COO). Cuomo alleges that these two intentional defrauded the investors and shareholders, withholding from the bank's own legal department the huge losses on Merril Lynch's balance sheet.

    I applaud Mr. Cuomo's strategy. The one thing that has perplexed me in this whole financial debacle is how these huge institutions committed fraudulent acts without anyone knowing. I thought that it had to be widespread systemic failure of the industry and its regulators. I never considered the idea that intentional wrongdoing by a few key placed people could cause this whole crisis. I know that corporation's are entities but there are still people that have to act to breath life into them. Those PEOPLE the actual individuals who discarded the morals of the business place, are the ones who should be made accountable. The corporation itself should pay as well, but those in charge, those at the helm as the ship ran aground, they should be held responsible for their actions or inaction. Good luck Mr. Cuomo.

  3. It is interesting that the article states that "Bank of America misled its shareholders....," the term misled does not sound as bad as say "deceived," which is probably what Bank of America actually did. I agree with Anonymous, Rakoff should really hold Bank of America liable and ensure that they pay every bit of the $150 million settlement proposal. Bank of America owed to its shareholders a fiduciary duty to act in good faith and in their best interests at all times; and therefore, should be held accountable. The other terms appear to be very fair and reasonable to ensure that this type of misconduct does not happen again. Even so, the proposed $150 million is a mere slap on the wrist!

  4. I do agree that the $150 million settlement is knocking on the door to justice. However, there is a more serious issue present. Shareholders purchase stock in companies with hopes to earn a profit. They also hope that the companies will be honest and efficient when disclosing acquisitions and bonuses, or anything that has a direct affect on the market.
    My concern deals arises when I think of the possibility of other companies failing to disclosing, and instead of a million dollar judgment/settlement the shareholders are awarded $500K. Though this may seem like a large sum, its actually not, assuming that shareholders have invested millions into the company. What if the judgment/settlement in another case is not as large as the settlment in Bank of America's case? There needs to be an additional sanction or consequences that companies encounter for failure to disclose.
    As a shareholder, I would feel more secure in my investment knowing that if the company tries to "get over" on me, not only will the company have to pay money but they will also have additional consequences.

  5. Jamil Davis

    I don't believe that Judge Rakoff will accept this settlement for one reason: to send a message to BOA and all other banks that this is unacceptable. Even though misleading statements can be construed by many as mere negligence on the corporations part and not a breach of duty , it seems more and more prevalent that these banking firms are hiding behind this defense in order to pass other agendas. Judge Rakoff must finally lay down a set of guidelines, restrictions, and a plan that will make these corporations think twice about their fraudulent deeds and misrepresentation. This settlement seems like an excuse for the SEC to promote to the public a good well done when it is only a slap on the wrist. I will be interested to see how Judge Rakoff handles this because it could have reverberations in the corporate world if handled correctly.