2010-06-19 SEC V BAC (1:09-cv-06829) at The US District Court, Southern District of New York - Docket Report

CLOSED, ECF
U.S. District Court

United States District Court for the Southern District of New York (Foley
Square)
CIVIL DOCKET FOR CASE #: 1:09−cv−06829−JSR
Securities and Exchange Commission v. Bank of America Date Filed: 08/03/2009

Corporation Date Terminated: 02/24/2010
Assigned to: Judge Jed S. Rakoff Jury Demand: Defendant
Related Case: 1:10−cv−00215−JSR Nature of Suit: 850
Cause: 15:77 Securities Fraud Securities/Commodities
Jurisdiction: U.S. Government Plaintiff
Plaintiff
Securities and Exchange Commission represented by Alexander Mircea Vasilescu
U.S. Securities and Exchange
Commission( 3 World Financial)
Three World Financial Center
New York , NY 10281
212−336−0178
Fax: 212−336−1322
Email: vasilescua@sec.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
David Rosenfeld
Securities and Exchange Commission
New York , NY 10281
212−336−0153
LEAD ATTORNEY
Scott Lawrence Black
Securities Exchange Commission (
Broadway)
233 Broadway, 6th Flr.
New York , NY 10279
212−336−0029
Fax: 212−336−1322
Email: blacks@sec.gov
LEAD ATTORNEY
George S. Canellos
Securities &Exchange Commission (3
WFC)
3 World Financial Center, Room 4300
New York , NY 10281
(212) 336−1020
Email: canellosg@sec.gov
Joseph O. Boryshansky
New York , NY 10281
(212) 336−0113
Fax: (212) 336−1348
Email: boryshanskyj@sec.gov
Maureen F. Lewis
New York , NY 10281
(212)−336−0125
Fax: (212)−336−1317
Email: lewism@sec.gov
Wendy Beth Griffin
New York , NY 10281
(212) 336−0176
Fax: (212) 336−1320
Email: griffinwb@sec.gov
V.
Defendant
Bank of America Corporation represented by Alex Young Kyong Oh
Paul, Weiss, Rifkind, Wharton &Garrison,
LLP (DC)
2001 K Street, N.W.
5th Floor
Washington , DC 20006
(202) 223−7300 x7334
Fax: (202) 204−7375
Email: aoh@paulweiss.com
LEAD ATTORNEY
Brad Scott Karp

Paul, Weiss, Rifkind, Wharton &Garrison
LLP (NY)
1285 Avenue of the Americas
New York , NY 10019
212−373−2384
Fax: 212−373−2384
Email: bkarp@paulweiss.com
LEAD ATTORNEY
Daniel Jonathan Kramer

LLP (NY)
New York , NY 10019
(212)−373−3020
Fax: (212)−492−0020
Email: dkramer@paulweiss.com
LEAD ATTORNEY
Joyce Szuyun Huang

LLP (NY)
New York , NY 10019
212−373−3150
Fax: 212−492−0150
Email: jhuang@paulweiss.com
LEAD ATTORNEY
Lewis J. Liman
Cleary Gottlieb Steen &Hamilton,
LLP(NYC)
One Liberty Plaza
New York , NY 10006
212−225−2000
Fax: 212−225−3499
Email: lliman@cgsh.com
LEAD ATTORNEY
Marc Christopher Falcone

LLP (NY)
New York , NY 10019
(212)−373−3506
Fax: (212)−492−0506
Email: mfalcone@paulweiss.com
LEAD ATTORNEY
Mark Floyd Pomerantz

LLP (NY)
New York , NY 10019
212.373.3010
Fax: 212.373.0010
Email: mpomerantz@paulweiss.com
LEAD ATTORNEY
Theodore Von Wells , Jr

LLP (NY)
New York , NY 10019
212−373−3089
Fax: 212−492−0089
Email: twells@paulweiss.com
LEAD ATTORNEY
Audra Jan Soloway
LLP (NY)
New York , NY 10019
212−373−3289
Fax: 212−492−0289
Email: asoloway@paulweiss.com
Lawrence B. Friedman
LLP(NYC)
One Liberty Plaza
New York , NY 10006
212−225−2000
Fax: 212−225−3499
Email: maofiling@cgsh.com
Melissa K. Marler
LLP(NYC)
One Liberty Plaza
New York , NY 10006
(212)−225−2000 x2489
Fax: (212)−225−3999
Email: mmarler@cgsh.com
Mitchell A. Lowenthal
LLP(NYC)
One Liberty Plaza
New York , NY 10006
212−225−2000
Fax: 212−225−3499
Email: maofiling@cgsh.com
Shawn Joseph Chen

Cleary Gottlieb Steen &Hamilton LLP
(DC)
2000 Pennsylvania Avenue, NW
Washington , DC 20006
(202)−974−1552
Fax: (202)−974−1999
Email: schen@cgsh.com
Victor L. Hou
LLP(NYC)
One Liberty Plaza
New York , NY 10006
212−225−2609
Fax: (212) 225−3999
Email: vhou@cgsh.com
Date Filed # Docket Text

08/03/2009 1 COMPLAINT against Bank of America Corporation. Document filed by Securities
and Exchange Commission.(ama) (ama). (Entered: 08/03/2009)
08/03/2009 SUMMONS ISSUED as to Bank of America Corporation. (ama) (Entered:
08/03/2009)
08/03/2009 Magistrate Judge Michael H. Dolinger is so designated. (ama) (Entered: 08/03/2009)
08/03/2009 Case Designated ECF. (ama) (Entered: 08/03/2009)
08/03/2009 2 NOTICE OF APPEARANCE by Maureen F. Lewis on behalf of Securities and
Exchange Commission (Lewis, Maureen) (Entered: 08/03/2009)
08/04/2009 3 NOTICE OF APPEARANCE by Lewis J. Liman on behalf of Bank of America
Corporation (Liman, Lewis) (Entered: 08/04/2009)
08/05/2009 4 NOTICE OF APPEARANCE by Joseph O. Boryshansky on behalf of Securities and
Exchange Commission (Boryshansky, Joseph) (Entered: 08/05/2009)
08/05/2009 5 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent.
Document filed by Bank of America Corporation.(Liman, Lewis) (Entered:
08/05/2009)
08/06/2009 6 ORDER: the Court will convene a hearing on Monday, August 10, 2009 at 4 PM in
Courtroom 14−B at 500 Pearl Street, New York, New York to hear from the parties
with respect to their proposed Consent Judgment. SO ORDERED. (Signed by Judge
Jed S. Rakoff on 8/5/2009) (tve) (Entered: 08/06/2009)
08/07/2009 7 NOTICE OF APPEARANCE by Shawn Joseph Chen on behalf of Bank of America
Corporation (Chen, Shawn) (Entered: 08/07/2009)
08/24/2009 8 MEMORANDUM OF LAW on Behalf of Bank of America Corporation, dated
August 24, 2009. Document filed by Bank of America Corporation. (Liman, Lewis)
(Entered: 08/24/2009)
08/24/2009 9 AFFIDAVIT of /Expert Affidavit of Morton A. Pierce, sworn to on August 21, 2009
(with Exhibits A and B) re: 8 Memorandum of Law. Document filed by Bank of
America Corporation. (Liman, Lewis) (Entered: 08/24/2009)
08/24/2009 10 AFFIDAVIT of Joseph A. Grundfest, sworn to on August 21, 2009 re: 8
Memorandum of Law. Document filed by Bank of America Corporation.
(Attachments: # 1 Exhibit List, # 2 Exhibit A Part 1, # 3 Exhibit A Part 2, # 4 Exhibit
B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10
Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit
M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit
R)(Liman, Lewis) (Entered: 08/24/2009)
08/24/2009 11 DECLARATION of Melissa K. Marler, dated August 23, 2009 re: 8 Memorandum of
Law. Document filed by Bank of America Corporation. (Attachments: # 1 Exhibit 1, #
2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, #
8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13
Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18
Exhibit 18, # 19 Exhibit 19 Part 1, # 20 Exhibit 19 Part 2, # 21 Exhibit 20)(Liman,
Lewis) (Entered: 08/24/2009)
08/24/2009 12 BRIEF IN SUPPORT OF ENTRY OF PROPOSED CONSENT JUDGMENT.
Document filed by Securities and Exchange Commission. (Attachments: # 1 Exhibit
A, # 2 Exhibit B)(Boryshansky, Joseph) (Entered: 08/24/2009)
08/25/2009 13 ORDER that Bank, like the SEC, is directed in the further submissions due on 9/9/09,
to provide its views on the issues raised in this Order. (Signed by Judge Jed S. Rakoff
on 8/25/09) (dle) (Entered: 08/25/2009)
08/27/2009 14 CERTIFICATE OF SERVICE of Richard Conza, dated August 27, 2009 8 , 9 , 10 ,
11 . Service was made by HAND. Document filed by Bank of America Corporation.
(Liman, Lewis) (Entered: 08/27/2009)
08/27/2009 15 TRANSCRIPT of proceedings held on 8/10/09 before Judge Jed S. Rakoff. (ldi)
(Entered: 08/28/2009)
08/27/2009 16 TRANSCRIPT of proceedings held on 8/10/09 before Judge Jed S. Rakoff. (ldi)
(Entered: 08/28/2009)
08/27/2009 17 TRANSCRIPT of proceedings held on 08/10/2009 before Judge Jed S. Rakoff. Court
Reporter: Southern District Reporters, P.C.. (cg) (Entered: 09/01/2009)
09/09/2009 18 BRIEF IN FURTHER SUPPORT OF ENTRY OF PROPOSED CONSENT
JUDGMENT. Document filed by Securities and Exchange
Commission.(Boryshansky, Joseph) (Entered: 09/09/2009)
09/09/2009 19 DECLARATION of Jennifer A. Kennedy, dated September 9, 2009. Document filed
by Bank of America Corporation. (Attachments: # 1 Exhibit Cover page, # 2 Index to
Exhibits, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8
Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit
11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit
16)(Liman, Lewis) (Entered: 09/09/2009)
09/09/2009 20 REPLY MEMORANDUM OF LAW on Behalf of Bank of America Corporation,
dated September 9, 2009. Document filed by Bank of America Corporation. (Liman,
09/09/2009 21 CERTIFICATE OF SERVICE of 19 , 20 served on SEC on September 9, 2009.
Document filed by Bank of America Corporation. (Liman, Lewis) (Entered:
09/09/2009)
09/14/2009 22 MEMORANDUM ORDER: Finally, the proposed Consent Judgment is inadequate.
The injunctive relief, as noted, is pointless. Accordingly, the Court, having hereby
disapproved the Consent Judgment, directs the parties to file with the Court, no later
than one week from today, a jointly proposed Case Management Plan that will have
this case ready to be tried on February 1, 2010. (Signed by Judge Jed S. Rakoff on
9/14/2009) (jfe) (Entered: 09/14/2009)
09/14/2009 Set/Reset Deadlines: Ready for Trial by 2/1/2010. (jfe) (Entered: 09/14/2009)
09/21/2009 23 NOTICE OF APPEARANCE by Scott Lawrence Black on behalf of Securities and
Exchange Commission (Black, Scott) (Entered: 09/21/2009)
09/21/2009 24 NOTICE OF APPEARANCE by Alexander Mircea Vasilescu on behalf of Securities
and Exchange Commission (Vasilescu, Alexander) (Entered: 09/21/2009)
09/21/2009 Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference
held on 9/21/2009. (mro) (Entered: 09/23/2009)
09/22/2009 25 CASE MANAGEMENT PLAN: Amended Pleadings due by 10/19/2009. Joinder of
Parties due by 10/19/2009. Motions due by 2/3/2010. Responses due by 1/18/2010
Replies due by 1/25/2010. Discovery due by 1/2/2010. Oral Argument set for
2/3/2010 at 10:00 AM before Judge Jed S. Rakoff. (Signed by Judge Jed S. Rakoff on
9/21/09) (js) (Entered: 09/22/2009)
09/22/2009 26 ORDER: This Order will serve to confirm the rulings made during the Court's
telephonic conference call with the parties on September 21, 2009. Prior to the call
and pursuant to the Court's prior direction, the parties had submitted a proposed Case
Management Plan, in which they agreed to all dates except for the dates for joinder of
additional parties and for the amendment of pleadings without leave of Court. In the
telephone conference, the Court resolved this dispute by setting October 19, 2009 as
the date by which a party could, without leave of Court, unilaterally amend its
pleadings or add additional parties. However, as the Court emphasized in the
telephone conference, this in no way precludes any party from moving at any time
prior to the close of discovery to add additional parties or amend its pleadings with
leave of Court. In the latter circumstance, however, the adversary party will have the
opportunity to be heard before such additions or amendments are accepted. In all
other respects, the Court accepted the case management dates jointly proposed by the
parties, even though it obliged the Court to move the trial date to March 1, 2010. See
the signed Case Management Plan issued by the Court late yesterday. However, the
Court wishes to emphasize that it regards the March 1, 2010 trial date as firm and
fixed. (Signed by Judge Jed S. Rakoff on 9/22/09) (tro) (Entered: 09/23/2009)
09/25/2009 27 ANSWER to Complaint. Document filed by Bank of America Corporation.(Liman,
09/25/2009 28 CERTIFICATE OF SERVICE of Answer 27 served on SEC on September 25, 2009.
Document filed by Bank of America Corporation. (Liman, Lewis) (Entered:
09/25/2009)
10/07/2009 29 DEMAND for Trial by Jury. Document filed by Securities and Exchange
Commission(Black, Scott) (Entered: 10/07/2009)
10/08/2009 30 NOTICE OF APPEARANCE by Melissa K. Marler on behalf of Bank of America
Corporation (Marler, Melissa) (Entered: 10/08/2009)
10/08/2009 31 NOTICE OF APPEARANCE by Victor L. Hou on behalf of Bank of America
Corporation (Hou, Victor) (Entered: 10/08/2009)
10/09/2009 32 DEMAND for Trial by Jury. Document filed by Bank of America Corporation(Liman,
10/14/2009 33 ORDER, yesterday, the parties submitted the attached "Disclosure Stipulation
Agreement and Proposed Protective Order".....The Court wishes to make clear,
however, that it interprets the proposed Protective Order as simply protecting Bank of
America against any claim that the stipulated waiver here attached implicitly
effectuates a broader waiver; but the Protective Order in no way precludes any party
in this or any other case from challenging on any other ground Bank of America's
assertion of attorney−client privilege or work−product protection regarding any
information. With this understanding, the Court hereby approves the proposed
Protective Order. (Signed by Judge Jed S. Rakoff on 10/14/09) (cd) (Entered:
10/14/2009)
10/14/2009 34 NOTICE OF APPEARANCE by Wendy Beth Griffin on behalf of Securities and
Exchange Commission (Griffin, Wendy) (Entered: 10/14/2009)
10/19/2009 35 ORDER. THE COURT, having received and reviewed the request, and good cause
apparent, has ruled that Joseph H Zernik's request for a leave to file as Party in
Interest in SEC v BAC (09−CV−06829−JSR), is DENIED. See U.S. Constitution,
Article III. SO IT IS ORDERED. (Signed by Judge Jed S. Rakoff on 10/19/2009) (rw)
(Entered: 10/19/2009)
10/19/2009 36 AMENDED COMPLAINT against Bank of America Corporation.Document filed by
Securities and Exchange Commission.(laq) (Entered: 10/21/2009)
10/22/2009 37 NOTICE OF APPEARANCE by Brad Scott Karp on behalf of Bank of America
Corporation (Karp, Brad) (Entered: 10/22/2009)
10/22/2009 38 NOTICE OF APPEARANCE by Daniel Jonathan Kramer on behalf of Bank of
America Corporation (Kramer, Daniel) (Entered: 10/22/2009)
10/22/2009 39 NOTICE OF APPEARANCE by Alex Young Kyong Oh on behalf of Bank of
America Corporation (Oh, Alex Young) (Entered: 10/22/2009)
10/22/2009 40 NOTICE OF APPEARANCE by Mark Floyd Pomerantz on behalf of Bank of
America Corporation (Pomerantz, Mark) (Entered: 10/22/2009)
10/22/2009 41 NOTICE OF APPEARANCE by Theodore Von Wells, Jr on behalf of Bank of
America Corporation (Wells, Theodore) (Entered: 10/22/2009)
10/29/2009 42 STIPULATION AND ORDER GOVERNING EXPERT REPORTS,
DISCLOSURES, AND DISCOVERY...that the following provisions of this Order
shall govern expert reports, disclosures, and discovery in the action, and as further set
forth in this document. (Signed by Judge Jed S. Rakoff on 10/29/09) (cd) (Entered:
10/29/2009)
10/30/2009 43 ANSWER to Amended Complaint. Document filed by Bank of America Corporation.
Related document: 36 Amended Complaint filed by Securities and Exchange
Commission.(Liman, Lewis) (Entered: 10/30/2009)
11/02/2009 44 STIPULATION AND ORDER GOVERNING EXPERT REPORTS, DISCLOSURES
AND DISCOVERY...regarding procedures to be followed that shall govern the
handling of confidential material.... (Signed by Judge Jed S. Rakoff on 10/30/09) (tro)
(Entered: 11/02/2009)
11/02/2009 45 CERTIFICATE OF SERVICE of Richard Conza 43 served on David Rosenfeld,
George Stepaniuk, Alexander M. Vasilescu, and Scott Black on October 30, 2009.
Service was made by EMAIL. Document filed by Bank of America Corporation.
(Liman, Lewis) (Entered: 11/02/2009)
11/02/2009 46 NOTICE OF APPEARANCE by Marc Christopher Falcone on behalf of Bank of
America Corporation (Falcone, Marc) (Entered: 11/02/2009)
11/02/2009 47 NOTICE OF APPEARANCE by Joyce Szuyun Huang on behalf of Bank of America
Corporation (Huang, Joyce) (Entered: 11/02/2009)
11/02/2009 48 NOTICE OF APPEARANCE by Audra Jan Soloway on behalf of Bank of America
Corporation (Soloway, Audra) (Entered: 11/02/2009)
held on 11/2/2009. (tro) (Entered: 11/04/2009)
11/04/2009 49 NOTICE OF APPEARANCE by Mitchell A. Lowenthal on behalf of Bank of
America Corporation (Lowenthal, Mitchell) (Entered: 11/04/2009)
11/04/2009 50 NOTICE OF APPEARANCE by Lawrence B. Friedman on behalf of Bank of
America Corporation (Friedman, Lawrence) (Entered: 11/04/2009)
11/05/2009 51 PROTECTIVE ORDER: Regarding procedures to be followed that shall govern the
handling of confidential material. (Signed by Judge Jed S. Rakoff on 11/4/09) (db)
(Entered: 11/05/2009)
12/08/2009 52 MEMORANDUM ORDER: By letter dated 11/18/09, Bank of America has requested
that the Court compel the production of certain documents as further listed in this
Order. Because the document sought are internal SEC communications, BofA cannot
claim to have relief on them in preparing the Joint Proxy Statement. As a result, the
cases that does not involve solely public SEC documents did not address this issue
and so it likewise irrelevant. Moreover, BofA has previously attested by letter to the
SEC that it would not "assert staff comments and the declaration of effectiveness as a
defense in [this] proceeding." Nor, under section 26 of the Exchange Act, can the
SEC's "failure to act... be construed to mean that [it] has in any way passed upon the
merits of, or given approval to,.. any transaction... [or] be deemed a finding. that such
statement or report... is not false or misleading." 15 U.S.C. § 78z. The Court
concludes therefore that the requested materials are not reasonably calculated to lead
to admissible evidence, and therefore denies the motion to compel. (Signed by Judge
Jed S. Rakoff on 12/7/09) (tro) (Entered: 12/08/2009)
12/17/2009 Minute Entry for proceedings held before Judge Jed S. Rakoff: Status Conference
12/31/2009 53 LETTER addressed to Judge Jed S. Rakoff from Lewis J. Liman dated 11/18/2009 re:
Bank of America respectfully request that the Court enter an Order, compelling the
SEC to produce documents and identify individuals in response to Bank of America's
Document Requests and Interrogatories. (jfe) Modified on 1/5/2010 (ae). (Entered:
12/31/2009)
12/31/2009 54 LETTER addressed to Judge Jed S. Rakoff from Scott L. Black dated 11/20/2009 re:
Counsel respectfully submits that for the reasons stated within that BOA's motion to
compel discovery should be denied. (jfe) Modified on 1/5/2010 (ae). (Entered:
12/31/2009)
01/04/2010 55 OPINION AND ORDER; #98414 the Court hereby excludes from being introduced
into evidence at trial (or on summary judgment) all those portions of the proffered
testimony of the parties' experts that relate, directly or indirectly, to media reports
concerning the year−end bonuses. At first blush, this would appear to eliminate the
entirety of Prof. Grundfest's testimony, much of Prof. Hubbard's testimony, and, for
that matter, a portion of Prof. Daines's testimony; but the Court will leave it to the
parties, in the first instance, to parse this out more precisely. As to the other issues
raised in the S.E.C.'s motion, e.g., whether the testimony of certain witnesses is
cumulative, the Court reserves decision until at or near the time of trial. The Court
likewise gives leave to the parties to raise further issues relating to the testimony of
the experts, e.g., methodological issues, after the depositions of the experts are
completed. (Signed by Judge Jed S. Rakoff on 1/4/10) (pl) Modified on 1/4/2010 (pl).
Modified on 1/5/2010 (ae). Modified on 1/5/2010 (ajc). (Entered: 01/04/2010)
01/04/2010 56 TRANSCRIPT of proceedings held on December 17, 2009 before Judge Jed S.
Rakoff. (mro) (Entered: 01/05/2010)
01/05/2010 57 LETTER addressed to Judge Jed S. Rakoff from Alexander Vasilescu, Scott Black,
Joseph Boryshansky and Wendy Griffin dated 12/14/09 re: Plaintiff submits this
letter, in accordance with Your Honor's instruction, to move in limine to exclude
various expert testimony that defendant Bank of America (BOA) has indicated it will
introduce at trial. In the event that the Court does not preclude, at this time, the
testimony of these experts, we request that the Court extend the deadline for
depositions from 12/24/09 to 1/22/10 so that we will have a fair opportunity to
examine BOA's numerous experts. Document filed by Securities and Exchange
Commission.(mro) (Entered: 01/05/2010)
01/05/2010 58 LETTER addressed to Judge Jed S. Rakoff from Daniel J. Kramer dated 12/16/09 re:
Defendant Bank of America writes in response to the letter to Your Honor from the
Securities and Exchange Commission dated 12/14/09. We submit that the Court
should reject the SEC's effort to exclude the testimony of all of BOA's expert
witnesses based solely upon their written reports because (1) the request is premature
and (2) the request is wholly without merit. In addition, BOA believes that the Court
can provide ample time for the completion of expert discovery while maintaining the
existing schedule for fact discovery, summary judgment briefing and trial. Document
filed by Bank of America Corporation.(mro) (Entered: 01/05/2010)
01/05/2010 59 LETTER addressed to Judge Jed S. Rakoff from Alexander Vasilescu, Scott Black,
Joseph Boryshansky and Wendy Griffin dated 12/23/09 re: Plaintiff submits this letter
in accordance with Your Honor's instruction at the 12/17/09 oral argument on the
Commission's application to exclude Bank of America Corporation's proposed expert
testimony. For the reasons listed herein, we believe that the express warning to
shareholders in BOA's proxy statement to refrain from relying on extrinsic materials
warrants preclusion,at this stage, of certain BOA's proposed expert testimony and that
additional expert testimony should be excluded on other grounds. Document filed by
Securities and Exchange Commission.(mro) (Entered: 01/05/2010)
In accordance with Your Honor's direction at the 12/17/09 hearing, we write on behalf
of defendants Bank of America Corporation; For all the reasons listed herein, the
SEC's argument should be rejected. Document filed by Bank of America
Corporation.(mro) (Entered: 01/05/2010)
01/05/2010 61 LETTER addressed to Judge Jed S. Rakoff from Alexander Vasilescu, Scott Black
and Joseph Boryshansky dated 12/30/09 re: We submit this letter in response to Bank
of America Corporation's 12/23/09 letter; As the Commission argued in its prior
letters to the Court, some of BOA's proposed expert testimony should be excluded at
this stage on various grounds, including the fact that BOA's shareholders were
expressly instructed to refrain from relying on materials that were extrinsic to the
merger proxy statement. The arguments BOA raises in its December 23 letter do not
merit a different conclusion. Document filed by Securities and Exchange
Commission.(mro) (Entered: 01/05/2010)
Defendant submits this letter in further opposition to the SEC's demand that the Court
exclude relevant evidence and strike certain of BOA's experts. Document filed by
Bank of America Corporation.(mro) (Entered: 01/05/2010)
01/05/2010 63 DECLARATION of Robert M. Daines. (mro) (Entered: 01/06/2010)
01/05/2010 64 Expert Report of Irving S. Becker, Vice President and U.S. Executive Compensation
Practice Leader (December 10, 2009). (mro) Modified on 1/6/2010 (mro). (Entered:
01/06/2010)
01/05/2010 65 Expert Report of Stephen B. Blum (December 10, 2009). (mro) (Entered: 01/06/2010)
01/05/2010 66 Expert Report of Joseph A. Grundfest. (mro) (Entered: 01/06/2010)
01/05/2010 67 Expert Report of William A. Holder (December 10, 2009). (mro) (Entered:
01/06/2010)
01/05/2010 68 Expert Report of Professor R. Glenn Hubbard, December 10, 2009. (mro) (Entered:
01/06/2010)
01/05/2010 69 Expert Report of Morton A. Pierce. (mro) (Entered: 01/06/2010)
01/11/2010 70 LETTER addressed to Judge Jed S. Rakoff from Scott Black and Joseph Boryshansky
dated 12/31/2009 re: In accordance with the Court's instruction, we respectfully
submit this letter on behalf of Plaintiff Securities and Exchange Commission
("Commission") to seek leave, pursuant to Fed. R. Civ. P. 15(a), to file a Second
Amended Complaint ("SAC"). The SAC, a copy of which is enclosed for the Court's
reference, adds a count under Section 14(a) of the Securities Exchange Act of 1934
("Exchange Act") and Rule 14a−9 thereunder based on the failure of Bank of America
Corporation ("BOA") to update the merger proxy statement, before the December 5,
2008 shareholder vote, concerning extraordinary losses that were sustained by Merrill
Lynch &Co., Inc. ("Merrill") prior to the vote. Document filed by Securities and
Exchange Commission. (rw) (Entered: 01/11/2010)
01/11/2010 71 LETTER addressed to Jed S. Rakoff from Daniel J. Kramer dated 1/7/2010 re: We
respectfully submit this letter on behalf of defendant Bank of America Corporation
("BOA"), in opposition to the SEC's December 31, 2009 letter, which seeks
permission to file a Second Amended Complaint ("SAC"). From its inception, the
SEC has proceeded in this action on the sole claim that BOA failed to disclose that
Merrill employees would receive year−end incentive compensation in 2008. When the
SEC had the opportunity to amend its Complaint before this Court's October 19
deadline − a right the SEC fully exercised − it chose not to add any allegations related
to Merrill's 4Q08 losses. Now, just two months before trial, the SEC seeks a
substantial expansion of the Amended Complaint to include the new, unrelated and
legally novel charge that BOA was obligated to update its registration statement
before the shareholder vote to disclose intra−quarter losses Merrill had sustained or
was projected to sustain. Leave to amend should be denied because: (1) the SEC has
not acted diligently, as it has known the key facts relating to its new claim since at
least February, but inexcusably waited until December 31 to make its motion; (2) the
SEC's new claim has no legal basis and therefore would be futile; and (3) BOA would
be severely prejudiced if the amendment were allowed at this late date, as fact
discovery has closed, the date for submitting expert reports has passed, and trial is set
to begin on March 1. Document filed by Bank of America Corporation. (rw) (Entered:
01/11/2010)
01/11/2010 72 DECLARATION of Victor L. Hou re: 71 Letter. Document filed by Bank of America
Corporation. (rw) (Additional attachment(s) added on 1/11/2010: # 1 Exhibit , # 2
Exhibit , # 3 Exhibit, # 4 Exhibit , # 5 Exhibit , # 6 Exhibit , # 7 Exhibit , # 8 Exhibit ,
# 9 Exhibit (rw). Modified on 1/11/2010 (rw). (Entered: 01/11/2010)
01/12/2010 73 ORDER: For the reasons stated from the bench today, see tr. 1/11/10, the Court
hereby denies the Securities and Exchange Commission's request for leave to file a
second amended complaint, without prejudice to the SEC's bringing the new causes of
action as a separate lawsuit. (Signed by Judge Jed S. Rakoff on 1/11/2010) (jfe)
(Entered: 01/12/2010)
01/26/2010 74 ORDER: The Court is in receipt of a letter from the Courtroom View Network, a copy
of which has been docketed, requesting to narrowcast the trial scheduled in this case.
Therefore, the parties should file with the Court, by no later than 2/1/2010, a brief
statement, not to exceed five doubled−spaced pages each, giving their views on this
issue. CVN should then file a response, not to exceed ten double−spaced pages, by
2/8/2010. (Signed by Judge Jed S. Rakoff on 1/26/2010) (tro) (Entered: 01/26/2010)
01/26/2010 75 LETTER addressed to Judge Jed S. Rakoff from John Shin dated 1/19/10 re: I write
on behalf of Courtroom View Network, a news gathering division of Courtroom
Connect; CVN requests that the Court issue an order pursuant to Local Civil Rule 1.8
permitting CVN to provide audio−visual coverage of the bench trial in this action,
currently set for March 1, 2010; All parties are also being provided with a copy of this
application; In the event that any of the parties object to this application, we would
request the opportunity to respond. (mro) (Entered: 01/26/2010)
01/26/2010 76 TRANSCRIPT of proceedings held on January 11, 2010 at 5:20 pm before Judge Jed
S. Rakoff. (eef) (Entered: 01/29/2010)
02/04/2010 77 MOTION for Settlement. Document filed by Securities and Exchange Commission.
(Attachments: # 1 Exhibit)(Black, Scott) (Entered: 02/04/2010)
02/04/2010 78 MEMORANDUM OF LAW in Support re: 77 MOTION for Settlement.. Document
filed by Securities and Exchange Commission. (Black, Scott) (Entered: 02/04/2010)
02/04/2010 79 MEMORANDUM OF LAW in Support re: 77 MOTION for Settlement.. Document
filed by Bank of America Corporation. (Attachments: # 1 Certificate of Service of
Victor L. Hou, dated February 4, 2010)(Liman, Lewis) (Entered: 02/04/2010)
02/05/2010 80 ORDER: A hearing to consider the proposed settlement in these two cases will be
held at 2 p.m. (not 3 p.m. as previously scheduled) on Monday, February 8, 2010 in
Courtroom 14−B of the U.S. Courthouse, 500 Pearl St., New York, NY. (Signed by
Judge Jed S. Rakoff on 2/5/2010) (js) (Entered: 02/05/2010)
02/08/2010 81 NOTICE OF APPEARANCE by George S. Canellos on behalf of Securities and
Exchange Commission (Canellos, George) (Entered: 02/08/2010)
02/08/2010 Minute Entry for proceedings held before Judge Jed S. Rakoff: Pretrial Conference
held on 2/8/2010. (tro) (Entered: 02/16/2010)
02/11/2010 82 ORDER: On February 4, 2010, the Court received a new settlement proposal from the
parties, one that would resolve both of the cases now pending in this curious
litigation. On February 8, the Court held a hearing on the proposed consent judgment,
at which the Court voiced a number of questions and concerns, arising, for example,
from the very different interpretations of the underlying facts proposed by,
respectively, the parties in this case and the Attorney General of the State of New
York in the parallel case of New York v. Bank of America Corp. See transcript of
hearing, 2/08/10 ("tr."). In order to adequately address those questions and concerns,
and for the reasons stated at the hearing, the Court hereby directs the parties, jointly or
severally, to submit to the Court the underlying discovery materials, such as
deposition testimony, documents, and emails, bearing on (and arranged in accordance
with) the following matters as set forth in this Order; The Court also directs the S.E.C.
to submit to the Court its analysis as to the percentage of Bank of America shares
distributed to Merrill shareholders at the time of the merger. See tr. at 40. Per the
parties' agreement, see tr. at 42, the parties' responses to the aforementioned queries,
including requested supporting materials and information, must be submitted to the
Court, by hand delivery, by no later than 5 p.m. on Tuesday, February 16, 2010.
(Signed by Judge Jed S. Rakoff on 2/11/10) (ae) (Entered: 02/11/2010)
02/11/2010 ***DELETED DOCUMENT. Deleted document number 83 ORDER. The document
was a duplicate entry of docket entry number 82. (rw) (Entered: 02/17/2010)
02/17/2010 84 RESPONSE in Support re: 77 MOTION for Settlement. Supplemental Statement of
Facts. Document filed by Securities and Exchange Commission. (Vasilescu,
Alexander) (Entered: 02/17/2010)
02/17/2010 85 LETTER addressed to Judge Jed S. Rakoff from Lewis J. Liman dated 2/16/10 re: We
request that this Court enter the proposed Consent Judgment, either as originally
presented or with the amendments agreed upon by both parties. Document filed by
Bank of America Corporation.(mro) (Entered: 02/17/2010)
02/17/2010 86 LETTER addressed to George [Canellos] from David A. Markowitz dated 2/16/10 re:
I write in response to your office's request for copies of transcripts of sworn testimony
of five individuals take by the NY Attorney General's Office; We are concerned about
the possible impact disclosure of these materials could have on our ongoing
investigations of other individuals; We cannot in a manner of consistent with our
prosecutorial obligations turn over piecemeal evidence at this time. (mro) (Entered:
02/17/2010)
02/17/2010 87 LETTER addressed to Judge Jed S. Rakoff from Scott L. Black dated 2/16/10 re: We
write to respond to the questions and instructions contained in the Court's order dated
2/11/10 and in further support of the Commission's Motion for Entry of the Proposed
Consent Judgment. Document filed by Securities and Exchange Commission.(mro)
(Entered: 02/17/2010)
02/17/2010 88 ORDER: Pursuant to the Court's Order of February 11, 2010, the parties have
provided the Court with numerous deposition transcripts and other materials bearing
on the Court's consideration of the new Proposed Consent Judgment that would settle
the above−captioned cases. Although at the time of the hearing on the Proposed
Consent Judgment that was held before this Court on February 8, 2010, counsel for
the S.E.C. stated that "I don't think we have any doubt that we've accessed the same
proof, the same witnesses, the same documents as the New York Attorney General"
(transcript of 2/8/10 hearing at page 7), the letter from the Attorney General's Office
states that the aforementioned five transcripts "were not previously considered by [the
S.E.C.] in constructing its investigation, litigation, or proposed settlement." It would
therefore be helpful to this Court to have these transcripts in evaluating, among other
things, whether the conclusions on which the S.E.C. premises its proposed settlement
have an adequate basis in fact or are materially at variance with other sworn
testimony. Cf. Manual for Complex Litigation (4th) at 457 ("To fulfill their role [in
evaluating securities class action settlements], judges may find it helpful to.. require
the parties to provide information useful for evaluating the proposed settlement,
particularly information relating to the merits of the claims and defenses...[and]
permit focused discovery by [third parties] on a showing of need.) Although the Court
likely has the power to order production of these transcripts to this Court, it would be
inappropriate to do so without hearing any objections that the Attorney General's
Office might have to such production in light of its ongoing investigation; but time
constraints preclude such satellite proceedings. The Court therefore simply requests
that the Attorney General's Office voluntarily produce to the Court, by no later than
noon this Friday, February 19, 2010 the five transcripts, or, even better, just those
portions of the transcripts that bear on the questions posed in the Court's Order of
February 11, 2010. If the Attorney General deems it necessary, such production can
be made, ex parte, to the Court alone, though the Court would prefer that the
production also be made to the parties here and be publicly available. In the hope that
the Attorney General's Office will accede to this request, the Court will postpone until
Monday, February 22, 2010, its ruling on whether or not to approve the Proposed
Consent Judgment. No further adjournment, however, is possible, given the fixed trial
date of March 1, 2010 for the trial in 09 Civ. 6829 if the Court disapproves the
settlement. All dates for motions in limine and the like will continue to be stayed,
however, until the Court rules on the Proposed Consent Judgment on February 22,
2010. (Signed by Judge Jed S. Rakoff on 2/17/2010) (jfe) (Entered: 02/17/2010)
02/17/2010 90 DEPOSITION TRANSCRIPT OF GREGORY CURL on December 11, 2009. (mro)
(mro). (Additional attachment(s) added on 2/18/2010: # 1 Gregory Curl) (mro).
(Additional attachment(s) added on 2/18/2010: # 2 Gregory Curl part 3, # 3 Gregory
Curl part 4) (mro). (Entered: 02/17/2010)
02/17/2010 89 DEPOSITION TRANSCRIPT OF TERESA BRENNER on December 4, 2009. (mro)
(Additional attachment(s) added on 2/18/2010: # 1 Brenner part 2, # 2 Brenner part 3,
# 3 Brenner part 4, # 4 Brenner part 5, # 5 Brenner part 6, # 6 Brenner part 7, # 7
Brenner part 8, # 8 Brenner part 9, # 9 Brenner part 10, # 10 Brenner part 11, # 11
Brenner part 12) (mro). (Entered: 02/17/2010)
02/17/2010 91 DEPOSITION TRANSCRIPT OF ROSEMARY BERKERY on December 9, 2009
(mro) (Additional attachment(s) added on 2/18/2010: # 1 Berkery part 2, # 2 Berkery
part 3, # 3 Berkery part 4, # 4 Berkery part 5, # 5 Berkery part 6, # 6 Berkery part 7, #
7 Berkery part 8) (mro). (Entered: 02/17/2010)
02/17/2010 92 DEPOSITION TRANSCRIPT OF JEFFREY P. CRANDALL on November 30, 2009.
(mro) (Additional attachment(s) added on 2/18/2010: # 1 Crandall part 2) (mro).
(Entered: 02/17/2010)
02/17/2010 93 Joint Supplemental Appendix of Bank of America and the Securities and Exchange
Commission. (rw) (Entered: 02/17/2010)
02/18/2010 98 TRANSCRIPT of proceedings held on 2/8/10 before Judge Jed S. Rakoff. (pl)
(Entered: 03/01/2010)
02/19/2010 94 LETTER addressed to Judge Jed S. Rakoff from Lewis J. Liman dated 2/18/10 re: We
write in response to the 2/17/10 Ordered issued by the Court; For the reasons
expressed in our 2/16/10 letter, we object to the Court seeking, or receiving
(particularly ex parte), extra judicial material from any third party, including
specifically the Office of the New York Attorney General. Document filed by Bank of
America Corporation.(mro) (Entered: 02/19/2010)
02/19/2010 95 LETTER addressed to Judge Jed S. Rakoff from David A. Markowitz dated 2/19/10
re: I write on behalf of the New York Attorney General in response to the Court's
2/17/10 voluntary information request; In response to this request, we submit Excerpts
from the sworn testimony of Timothy J. Mayopoulos, Jeffrey Brown, Thomas Brown,
Ven Kocaj, and David Moser; We request that these materials be reviewed by the
Court ex parte due to our pending litigation and ongoing investigations. (mro)
(Entered: 02/19/2010)
02/22/2010 96 OPINION AND ORDER that in the exercise of that self−restraint, this Court, while
shaking its head, grants the S.E.C.'s motion and approves the proposed Consent
Judgment provided that, by no later than this Thursday, 2/25/10, the parties present
the Court with a proposed Consent Judgment that includes the revised provisions to
which they have consented, as set forth herein. (Signed by Judge Jed S. Rakoff on
2/22/10) (dle) (Entered: 02/22/2010)
02/24/2010 97 FINAL CONSENT JUDGMENT AS TO DEFENDANT BANK OF AMERICA
CORPORATION # 10,0297 in favor of Securities and Exchange Commission against
Bank of America Corporation in the amount of $ 150,000,001.00. (Signed by Judge
Jed S. Rakoff on 2/24/2010) (Attachments: # 1 Notice of Right to Appeal)(dt)
(Entered: 02/24/2010)
03/02/2010 99 EXHIBIT A (Statement of Facts to Final Consent Judgment). (rw) (Entered:
03/02/2010)
03/02/2010 100 ORDER. The Statement of Facts that has been docketed separately is hereby
incorporated by reference as Exhibit A to the Final Consent Judgment that was
docketed on February 24, 2010. (Signed by Judge Jed S. Rakoff on 3/1/10) (djc)
(Entered: 03/02/2010)
03/17/2010 CASHIERS OFFICE CRIS DEPOSIT dated 2/24/10, from Judge Judge Jed S. Rakoff,
$150,000,001.00 from WIRE TRANSFER deposited on 3/9/10, Receipt Number
896718 and placed into CRIS on 3/17/10. (dig) (Entered: 03/17/2010)
03/30/2010 101 LETTER addressed to Judge Jed S. Rakoff from Alexander M. Vasilescu and Joseph
O. Boryshansky dated 3/23/10 re: The Commission submits that distributing the
penalty and disgorgement funds in accordance with these terms will further the
principles set forth in the Final Judgments, insure the fair and efficient administration
of the distribution of the funds, and afford compensation to shareholders of Bank of
America who were most harmed by the Bank's alleged nondisclosures. Document
filed by Securities and Exchange Commission.(mro) (Entered: 03/30/2010)
04/06/2010 102 ORDER; that the Court has very carefully reviewed the accompanying proposals and
concludes that, while all three potential distribution firms have made worthy
proposals, the Court agrees with the SEC that the lowest bidder, Rust Consulting, Inc.,
should be selected. The Court also agrees with the other proposals set forth in the
SEC's letter and hereby adopts them by reference. The SEC is hereby ordered to
implement these proposals and, with the assistance of Rust Consulting, Inc., to
expedited the distribution of the funds, as promptly as possible. (Signed by Judge Jed
S. Rakoff on 4/5/10) (pl) (Entered: 04/06/2010)
05/06/2010 103 ORDER: the Court hereby directs the parties, either jointly or severally as they prefer,
to file with the Clerk of the Court (with courtesy copies submitted to Chambers)
periodic status reports on the progress of the financial distribution and all other
aspects of the settlement. The first of these status reports must be filed no later than
June 1, 2010, with subsequent reports to be filed on the first of the month every three
months thereafter. SO ORDERED. (Signed by Judge Jed S. Rakoff on 5/6/2010) (tve)
(Entered: 05/07/2010)
05/11/2010 104 MOTION to Appoint Receiver(s) Damasco &Associates Tax Administrator.
Document filed by Securities and Exchange Commission.(Black, Scott) (Entered:
05/11/2010)
05/17/2010 105 ORDER TO APPOINT TAX ADMINISTRATOR: 1. Damasco &Associates LLP. is
appointed as tax Administrator to execute all income tax reporting requirements,
including the preparation and filing of tax returns, with respect to funds under this
Court's jurisdiction in this case (the "Distribution Fund") All provisions as set forth in
this order. So Ordered. (Signed by Judge Jed S. Rakoff on 5/16/2010) (jfe) (Entered:
05/19/2010)
06/01/2010 106 STATUS REPORT. / Status Report Pursuant to May 6, 2010 Order with Exhibits A −
C, dated June 1, 2010. 103 Document filed by Bank of America Corporation.(Liman,
06/14/2010 107 ORDER TO DISBURSE FUNDS TO PAY TAX OBLIGATIONS: The Clerk of the
Court shall issue a check on the interest bearing account with the Court Registry
Investment System associated with this action, for the amount of $725 payable to
Damasco &Associates, LLP, for the payment of tax obligations as provided in the
Declaration. The check shall contain the notation, "SEC v. Bank of America, 09 Civ.
6829, 10 Civ. 0215, Estimated Tax Payments for 2010." The Clerk shall send the
check by overnight mail to: Damasco &Associates, LLP, 700 Monte Vista Lane, Half
Moon, CA, 94019. The Commission's counsel shall provide the Court Registry with
the necessary overnight shipping information and the SEC's billing number. (Signed
by Judge Jed S. Rakoff on 6/12/2010) *A copy of this Order has been forwarded to
the Finance Office, Rm. 120, via inter−office envelope on 6/14/2010. (tro) Modified
on 6/16/2010 (tro). (Entered: 06/14/2010)

2010-06-19 SEC V BAC (1:09-cv-06829) at The US District Court, Southern District of New York - Docket Report

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U.S. District Court

Securities and Exchange Commission v. Bank of America Date Filed: 08/03/2009

Brad Scott Karp

Daniel Jonathan Kramer

Joyce Szuyun Huang

Marc Christopher Falcone

Mark Floyd Pomerantz

Theodore Von Wells , Jr

Shawn Joseph Chen

Date Filed # Docket Text

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