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Human Rights Alert

Digitally signed by Joseph Zernik DN: cn=Joseph Zernik, o, ou, email=jz12345@e arthlink.net, c=US Date: 2010.11.09 00:19:34 +02'00'

10-11-07 SEC v BAC (1:09-cv -6829) at the US District Court, Southern District of New York – Wall Street Journal reports
The litigation of the case was extensively covered by major US media outlets and also by international media. The New York Times, Washington Post, Wall Street Journal, and Times of London each published multiple reports during the course of the litigation. However, there is no reason to assume that any media, which reported of the litigation ever gained access to authenticated records in the case. Moreover, notices were forwarded to media outlet regarding the denial of access to court records. Regardless, media continued to report on the case, with no basis in valid and effectual court records.

Following are sample reports from the Wall Street Journal, probably the least reliable of all media reports on the case:
1. SEPTEMBER 14, 2009 - Let’s Go to Trial: Rakoff Slams BofA, SEC, Rejects Pact This just in: Manhattan federal judge Jed Rakoff has rejected the proposed $33 million settlement between the Bank of America and the SEC. The SEC had alleged that BofA “materially lied” in shareholder communications last year about bonuses to Merrill Lynch employees. Click here for the early WSJ story; here for Rakoff’s ruling; here, here,here, here, and here for earlier LB posts. The SEC and Bank of America had sought the judge’s approval of a consent decree to resolve charges that the bank concealed an agreement to pay up to $5.8 billion in bonuses to Merrill executives. But, in an unusual move, the judge said no. On Monday, he set a Feb. 1 trial date on the allegations in his New York courtroom. For starters, Rakoff found the proposed settlement unfair: … 2. SEPTEMBER 15, 2009 – Rakoff Rakes the SEC 'Oscar Wilde once famously said that a cynic is someone 'who knows the price of everything and the value of nothing,'" wrote federal Judge Jed Rakoff yesterday in a scathing order rejecting a $33 million settlement between Bank of America and the SEC. Credit the judge with highlighting the particular political cynicism that drives too many of today's regulators. The SEC alleged earlier this year that BofA had "materially lied" in shareholder communications prior to its takeover of Merrill Lynch, by failing to disclose bonuses owed to Merrill employees. New SEC chief Mary Schapiro figured she'd play off public outrage with a civil lawsuit that would earn some headlines. BofA in August settled for $33 million, neither admitting nor denying guilt. 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." …

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JANUARY 12, 2010 - BacMerSaga Gets Bigger: SEC Sues BofA Over Merrill Losses

By Amir Efrati When the Securities and Exchange Commission’s David Rosenfeld, an enforcement lawyer, launched what we here at the blog call BacMerSaga — the government litigation over Bank of America’s 2008 merger with Merrill Lynch — we were left scratching our heads. That’s because in August of last year Rosenfeld and the SEC accused Bank of America of failing to disclose to shareholders the billions of dollars in bonuses that would be paid to Merrill employees just before the deal’s completion. But what about the fact that investors weren’t notified about the billions of dollars in losses that were mounting at Merrill before the deal closed? 4. FEBRUARY 4, 2010 - But Will Judge Rakoff Approve This BofA/SEC Deal? By Ashby Jones The question posed in our headline has to be at the forefront of the minds of folks at the SEC as well as executives and lawyers at Bank of America. On its face, the settlement certainly looks “better.” The earlier settlement that hit the Rakoff Roadblock provided for a $33 million payment made by BofA to the SEC. This one provides for a much stiffer fine — some $150 million. The thinking might go like this: Rakoff was angry at BofA, and the earlier settlement didn’t do enough to punish the bank. This is a stiffer penalty, so Rakoff might be happier. 5. FEBRUARY 4, 2010 - Evening Reading: Is the SEC Betting Judge Rakoff Is Getting Senile?

By Stephen Grocer Will Judge Rakoff Approve This BofA/SEC Deal? That’s the question our Deal Journal Colleague Ashby Jones poses over at Law Blog. After all Rakoff rejected the previous BofA-SEC deal. Well, Looks like the deal could be in trouble. As one expert tells Law Blog: “Either I’m hopelessly ignorant, or this doesn’t address Rakoff’s concerns at all. Maybe they think Rakoff is getting senile in his old age. But I wouldn’t count on that.” 6. FEBRUARY 9, 2010 - Rakoff Has Questions on BofA-SEC Pact

BY CHAD BRAY The judge who threw out a settlement between Bank of America Corp. and the Securities and Exchange Commission raised questions Monday about their new deal to end two federal lawsuits alleging the bank misled investors about its takeover of Merrill Lynch & Co. At a court hearing in New York, U.S. District Judge Jed S. Rakoff asked an SEC lawyer why the agency didn't conclude that Bank of America fired its general counsel, Timothy Mayopoulos, because he was seeking to disclose widening losses at Merrill in December 2008. Last week, New York Attorney General Andrew Cuomo said in a separate ... 7. FEBRUARY 12, 2010 - Judge Rakoff Orders SEC, BofA to Supply Extensive Information

BY AMIR EFRATI Jed Rakoff, the federal judge who is weighing whether to approve a proposed $150 million settlement between the Securities and Exchange Commission and Bank of America Corp. over allegations the bank misled investors about its merger with Merrill Lynch & Co., on Thursday requested voluminous information from both parties. In a written order, the judge asked for material ... 8. FEBRUARY 17, 2010 - So Why was BofA's General Counsel Fired? Here's BofA's Answer

By Ashby Jones All throughout BacMerSaga, it’s been a question raised by New York federal judge Jed Rakoff: Why was Bank of America’s former general counsel, Timothy Mayopolous, fired at the end of 2008? Might the rationale have been, as NY Attorney General Andrew Cuomo has implied, because he advised BofA executives to disclose bonuses to be given to Merrill Lynch executives, advice that the BofA brass didn’t like?

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Actually, no, responded the SEC on Wednesday in a court filing in the SEC/BofA lawsuit. Mayopolous was fired strictly to create an opening for Brian Moynihan, who later succeeded Kenneth D. Lewis as chief executive, the SEC said. Click here for the Dow Jones Newswires story. Click here for past LB coverage of the situation. 9. FEBRUARY 18, 2010 - SEC Sets Up Showdown With Cuomo Over BofA BY KARA SCANNELL AND DAN FITZPATRICK In a swipe at New York Attorney General Andrew Cuomo, the Securities and Exchange Commission said in a court filing that the December 2008 firing of Bank of America Corp.'s general counsel had nothing to do with his opinion about ballooning losses at Merrill Lynch & Co. just before the securities firm's takeover by the giant bank. The SEC's court filing sets up a showdown between two securities regulators whose relationship has been fraught with tension for years. U.S. District Court Judge Jed Rakoff has said he plans to issue a ruling by Monday on a proposed $150 million settlement ... 10. FEBRUARY 19, 2010 - A Peek At Wachtell Lipton’s Advice in BacMerSaga By Amir Efrati We brought you word earlier today about the filings being made in Manhattan federal court related to the proposed settlement between the Securities and Exchange Commission and Bank of America over the bank’s disclosures ahead of its 2008 merger with Merrill Lynch. Judge Jed Rakoff, who will rule on the proposed settlement on Monday, had requested more information in order to understand why the SEC concluded that no individual had violated securities laws for not making fuller disclosures. After all, Rakoff noted, New York Attorney General Andrew Cuomo decided to sue BofA’s former chief, Ken Lewis, and its former finance chief. 11. FEBRUARY 21, 2010, Cuomo Turns Over Testimony BY CHAD BRAY NEW YORK—New York Attorney General Andrew Cuomo's office turned over testimony from its probe of Bank of America Corp. to a federal judge weighing whether to approve a $150 million settlement of a separate investigation by the U.S. Securities & Exchange Commission. In a letter Friday, David Markowitz, special deputy attorney general for investor protection in Mr. Cuomo's office, said he forwarded to U.S. District Judge Jed S. Rakoff in Manhattan copies of depositions of five individuals questioned in Mr. Cuomo's probe, including Timothy Mayopoulos, Bank of America's former general counsel. "Obviously, ... 12. FEBRUARY 22, 2010 - Rakoff Backs BofA Accord, Unhappily BY DAN FITZPATRICK, KARA SCANNELL AND CHAD BRAY A federal judge harshly criticized but approved a $150 million settlement Monday between Bank of America Corp. and the Securities & Exchange Commission, resolving claims the bank should have disclosed billions in losses at Merrill Lynch & Co. before it was acquired by the bank. U.S. District Judge Jed S. Rakoff said the fine was "paltry" when considering the Merrill merger "could have been a bank-destroying disaster if the U.S. taxpayer had not saved the day." He criticized the bank for "hiding material information ... 13. FEBRUARY 22, 2010 Judge Rakoff Grudgingly Signs Off On BofA/SEC Deal By Nathan Koppel New York federal judge Jed Rakoff approved the SEC's settlement of allegations that Bank Of America misled investors about...

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14. FEBRUARY 22, 2010 - What Does Rakoff Ruling Mean for Cuomo's BofA Case? By Michael Corkery Boy, are we going to miss Judge Jed Rakoff’s rulings in the Bofa-SEC settlement saga. First, it isn’t everyday that you find a federal judge who quotes “the great American philosopher” Yogi Berra: “I wish I had an answer to that because I am getting tired of answering that question,” Rakoff writes in his latest opinion on the case. 15. FEBRUARY 22, 2010, - Cuomo Says Rakoff Ruling Bolsters His BofA Case By Michael Corkery Judge Jed Rakoff's ruling on the SEC-BofA settlement seems to send some mixed signals about Attorney General Andrew Cuomo... 16. MARCH 18, 2010, - In Rejecting SEC Settlement, Has Pauley Pulled a Rakoff? By Ashby Jones Has New York federal judge William H. Pauley III pulled a Rakoff? We ask the question in light of a WSJ story on a ruling... 17. MAY 17, 2010 - Bank of America Manages to Avoid Judge Rakoff Bank of America Corp. tried to keep cases pending against it from landing with U.S. District Judge Jed Rakoff, in the hopes of avoiding another dramatic confrontation with the judge over the bank's handling of the Merrill Lynch & Co. takeover. It got the outcome it wanted, though not necessarily thanks to its efforts. The nation's largest bank by assets sent a letter on April 22 to U.S. District Judge Denny Chin—who was leaving to become an appeals-court judge—that asked that about 15 civil shareholder lawsuits pending before him be reassigned randomly and not handed to Judge Rakoff. Judge Rakoff ... 18. August 19, 2010 - Writing on the Wall: In Search of Justice for Wall (Street) David Weidner writes that legal settlements by Wall Street firms have often been weakly worded penalties, handed to judges...