A few days back I posted on the plight of Bank of America and its legal battle against the SEC. It seems that the two parties attempted to reach a deal wherein BofA would pay $33 million, but plead neither guilt nor innocence. But the presiding federal judge, Jed Rakoff, decided to make a stand for truth, justice, economic freedom. The Wall Street Journal reports:
Judge Rakoff was having none of it. In a 12-page opinion, he tore into the SEC for ignoring its own guidelines and penalizing shareholders rather than the individuals who supposedly acted improperly. The settlement “does not comport with the most elementary notions of justice and morality, in that it proposes that the shareholders who were the victims of the Bank’s alleged misconduct now pay the penalty for that misconduct.” As for the SEC’s argument that this shareholder punishment will result in better management, the judge called it “absurd.”
The judge also had little sympathy for the SEC’s argument that it would be too difficult to pursue executives, since they had been guided by lawyers. “If that is the case, why are the penalties not then sought from the lawyers? And why, in any event, does that justify imposing penalties on the victims of the lie, shareholders?” he asked.
He also had harsh words for BofA, which has recently filed court papers claiming its proxy statement was neither false nor misleading. “If the Bank is innocent of lying to its shareholders, why is it prepared to pay $33 million of its shareholders’ money as a penalty for lying to them?”
The judge had other complaints, but broadly the deal “suggests a rather cynical relationship between the parties: the SEC gets to claim that it is exposing wrongdoing on the part of the Bank of America in a high-profile merger; the Bank’s management gets to claim that they have been coerced into an onerous settlement by overzealous regulators. And all of this is done at the expense, not only of the shareholders, but also of the truth.” The parties will go to trial in February.
We look forward to it, especially in light of the recent news that Fed and Treasury knew all about these bonuses and stayed mum. Judge Rakoff has done a public service by exposing the political point-scoring that drives far too many regulatory actions.
We can only hope that February’s trial will involve some exploration into the exact roles that Paulson and Bernanke played in this abominable affair.
Judge Rakoff decision also points out how corrupt Congress is, as well as the SEC. (It goes without saying that BoA is corrupt.) Congress should be all of this, calling in the SEC (not just BoA executives), and kicking the living crap of the SEC. But they won’t. They may yell and little and make angry faces for public effect, but they will ultimately leave with their tails between their legs and their limp wrists flapping in the find, as their corporate sponsors set them straight. Because, when you get down to it, it work exactly like that famous scene in the old classic, Mr. Smith Goes to Washington, where senior senator Claude Raines tells the junior senator Jimmy Stewart who pulls the stings in Congress.