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... "Reluctantly," says the Federal Judge.
This updates a post here on February 18, 2010. The SEC does not give up on trying to gain approval of its proposed settlements. This time, the SEC received reluctant Federal Court approval of its most recent settlement proposal in the case it filed against Bank of America. The Federal Judge wrote at the outset of his Order that he was "tempted to quote the great American philosopher Yogi Berra: 'I wish I had an answer to that because I'm getting tired of answering that question.' However, after full consideration, the Court reluctantly grants the motion, on the terms specified below." Download Securities and Exchange Comm'n v. Bank of Am. (SDNY Case Nos. 09 Civ 6829 and 10 Civ 0215, Opinion Filed 02.22.10 Approving Settlement), attached Official Slipsheet Opinion at 1-2.
BOA apparently increased the amount it was willing to pay, to $150 Million from $33 Million. The other terms of previous settlement proposals appear to be essentially unchanged. See, e.g., Greg Farrell, "Judge Approves BofA Settlement With SEC" (Financial Times Online at FT.com, Monday, February 22, 2010); Louise Story, "Judge Accepts S.E.C.'s Deal With Bank of America" (New York Times Online, Monday, February 22, 2010), in print on p. B1, col. "4," New York Times Nat'l ed., "Business Day" Section, Tuesday, February 23, 2010.
The increase from $33 Million to $150 Million was, however, due to BOA's successful renegotiation of the amount to include both cases, 09 civ 6829 which the Court called the "Undisclosed Bonuses" case, and 10 civ 0215 which might be called the "Undisclosed Losses" case. See Download Securities and Exchange Comm'n v. Bank of Am. (SDNY Case Nos. 09 Civ 6829 and 10 Civ 0215, Opinion Filed 02.22.10 Approving Settlement), at 11.
It is possible to read the 15-page Order of the Federal Judge, and come away with the impression that he reluctantly accepted the latest iteration of this SEC-BOA settlement as the best that the SEC could do in this case. It would have been worse if the SEC had been forced to go to Trial as scheduled beginning on Monday, March 1, 2010, and lost at Trial, or attempted to voluntarily dismiss its case against BOA before or during Trial.
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