The SEC and Bank of America presented Judge Jed Rakoff with a second settlement agreement, one they hoped would meet his approval. But a rubber-stamp is just not Rakoff’s style.
In an Order in which he called the pending litigation “curious,” he demanded the parties provide him with a variety of information the parties provided each other in discovery. He wants emails, documents and deposition testimony, including information involving:
- The termination of Timothy Mayopoulos;
- The “extent of participation after November 18, 2008” by attorneys at Wachtell “in evaluation of the disclosure issues raised by the reports of increased losses at Merrill Lynch; and
- Any evidence anyone — Wachtell, Mayopoulos or anyone else at Bank of America “recommended a pre-merger disclosure” to BofA shareholders of Merrill’s post-September losses or agreements to pay Merrill’s “billions of dollars of year-end bonuses”
Rakoff also made suggestions for tweaks to the language of concessions for oversight agreed to by BofA.
It is not likely they’ll be any smoking guns in the information turned over to Rakoff — it’s information the parties have already exchanged, and if there was a damning “YOU SHOULD DISCLOSE IMMEDIATELY” document in there, it should have already been found.
It sounds like Rakoff is a little closer to approving the settlement, but he’s going to put them through their paces — again — first.
The parties have until February 16 to provide Rakoff with the information. In other words, a lot of lawyers just canceled their Valentine’s Day plans.
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