Rakoff throws down the gauntlet
Judge Rakoff has rejected the settlement deal between the SEC and Bank of America. He clearly wasn’t happy with it to begin with, and subsequent briefs from the two parties did nothing to allay his concerns. At the end of the day, he hated the idea that B of A shareholders, on whose behalf the SEC actually brought the case, would end up paying the fine for executives’ wrongdoing.
So what’s the next step? According to the Reuters story, “Rakoff directed the parties to prepare for a possible trial that would begin no later than February 1, 2010.”
That doesn’t mean there will be a trial. The parties could come back with a settlement more to Rakoff’s liking.
But presumably that would have to involve naming names. Who were the executives responsible for misleading shareholders? B of A has refused to answer that question and the SEC seems to think it doesn’t have the leverage to force it out of them.
I’m happy to see this development. I’m on-record saying the SEC should pick more fights. The truth of the matter is that we need more accountability at the top. The point behind Sarbanes-Oxley, for instance, was that executives would take more responsibility for their misdeeds, in this case Ken Lewis and John Thain.
Too often, “The Corporation” gets the blame and pays the fine. But that isn’t justice, nor does it deter bad behavior.
(Here’s the PDF of Rakoff’s full order)