The sweetheart deal between the SEC and Bank of America is surprisingly under attack today as a Federal Judge rejects deal between SEC, BofA over bonuses.

A federal judge on Monday rejected a $33 million settlement between the Securities and Exchange Commission and Bank of America Corp., saying the SEC’s accusations of inadequate disclosure by the bank over bonuses paid at Merrill Lynch must now go to trial.

The SEC announced last month that it had settled its civil charges against BofA, which agreed to buy the New York investment bank last year, without the bank admitting or denying guilt in the case. BofA has said it didn’t violate disclosure rules.

U.S. District Judge Jed Rakoff held up his approval of the settlement, however, and ordered the SEC last month to explain why it didn’t pursue charges against specific executives at Bank of America over the accusations.

After receiving additional statements from the SEC and BofA last week, Rakoff ruled Monday that the proposed $33 million settlement “cannot remotely be called fair,” and ordered that the case go to trial beginning Feb. 1.

Rakoff, in his ruling, found that the proposed settlement “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 this is done at the expense, not only of the shareholders, but also of the truth.”

Cuomo Sharpens Axe

Related to the above decision, inquiring minds are reading Cuomo preparing charges against BofA.

The New York Attorney General’s office is preparing charges against several high-ranking Bank of America executives over the bank’s alleged failure to disclose details about its acquisition of Merrill Lynch, according to a person familiar with the investigation.

Attorney General Andrew Cuomo’s office is likely to file civil charges against the executives over their role in failing to alert shareholders to mounting losses as well as accelerated bonus payments at Merrill, said the person, who requested anonymity because no charges have been filed yet.

Bonus Issue Should Be A Sideshow

The issue of a civil lawsuit over executive bonuses should be a sideshow given there is strong evidence of coercion to commit securities fraud by former Treasury Secretary Paulson and Fed Chairman Ben Bernanke, and actual securities fraud by Bank of America CEO Kenneth D. Lewis.

At the center of the fraud issue is Bank of America CEO Lewis’s decision to back away from the merger deal with Merrill Lynch on a MAC (material adverse change) clause because of rapidly deteriorating conditions at Merrill Lynch.

For details please see Let the Criminal Indictments Begin: Paulson, Bernanke, Lewis.

In the meantime the SEC proved once again it has no interest in breaking up the big boy buddy system. This is predictable because the SEC is one of the big buddies.

Mike “Mish” Shedlock
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