2010-06-19 sec v bac (1:09-cv-06829) at the us district court, southern district of new york -...

8/8/2019 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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CLOSED, ECF

U.S. District CourtUnited States District Court for the Southern District of New York (Foley

Square)CIVIL DOCKET FOR CASE #: 1:09cv06829JSR

Securities and Exchange Commission v. Bank of AmericaCorporation

Assigned to: Judge Jed S. RakoffRelated Case: 1:10cv00215JSRCause: 15:77 Securities Fraud

Date Filed: 08/03/2009Date Terminated: 02/24/2010

Jury Demand: DefendantNature of Suit: 850Securities/CommoditiesJurisdiction: U.S. Government Plaintiff

Plaintiff

Securities and Exchange Commission represented by Alexander Mircea VasilescuU.S. Securities and ExchangeCommission( 3 World Financial)Three World Financial CenterNew York , NY 102812123360178Fax: 2123361322Email: [email protected]

LEAD ATTORNEYATTORNEY TO BE NOTICED

David RosenfeldSecurities and Exchange CommissionThree World Financial CenterNew York , NY 102812123360153LEAD ATTORNEYATTORNEY TO BE NOTICED

Scott Lawrence BlackSecurities Exchange Commission (Broadway)

233 Broadway, 6th Flr.New York , NY 102792123360029Fax: 2123361322Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

George S. CanellosSecurities &Exchange Commission (3WFC)3 World Financial Center, Room 4300New York , NY 10281(212) 3361020Email: [email protected] TO BE NOTICED

Joseph O. BoryshanskyU.S. Securities and ExchangeCommission( 3 World Financial)Three World Financial CenterNew York , NY 10281(212) 3360113Fax: (212) 3361348Email: [email protected] TO BE NOTICED


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Maureen F. LewisU.S. Securities and ExchangeCommission( 3 World Financial)Three World Financial CenterNew York , NY 10281(212)3360125Fax: (212)3361317Email: [email protected] TO BE NOTICED

Wendy Beth GriffinU.S. Securities and ExchangeCommission( 3 World Financial)Three World Financial CenterNew York , NY 10281(212) 3360176Fax: (212) 3361320Email: [email protected] TO BE NOTICED

V.

Defendant

Bank of America Corporation represented by Alex Young Kyong OhPaul, Weiss, Rifkind, Wharton &Garrison,LLP (DC)2001 K Street, N.W.5th FloorWashington , DC 20006(202) 2237300 x7334Fax: (202) 2047375Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Brad Scott Karp

Paul, Weiss, Rifkind, Wharton &GarrisonLLP (NY)1285 Avenue of the AmericasNew York , NY 100192123732384Fax: 2123732384Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Daniel Jonathan KramerPaul, Weiss, Rifkind, Wharton &GarrisonLLP (NY)1285 Avenue of the Americas

New York , NY 10019(212)3733020Fax: (212)4920020Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Joyce Szuyun HuangPaul, Weiss, Rifkind, Wharton &GarrisonLLP (NY)1285 Avenue of the AmericasNew York , NY 100192123733150Fax: 2124920150


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Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Lewis J. LimanCleary Gottlieb Steen &Hamilton,LLP(NYC)One Liberty PlazaNew York , NY 100062122252000

Fax: 2122253499Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Marc Christopher FalconePaul, Weiss, Rifkind, Wharton &GarrisonLLP (NY)1285 Avenue of the AmericasNew York , NY 10019(212)3733506Fax: (212)4920506Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Mark Floyd PomerantzPaul, Weiss, Rifkind, Wharton &GarrisonLLP (NY)1285 Avenue of the AmericasNew York , NY 10019212.373.3010Fax: 212.373.0010Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Theodore Von Wells , JrPaul, Weiss, Rifkind, Wharton &GarrisonLLP (NY)1285 Avenue of the AmericasNew York , NY 100192123733089Fax: 2124920089Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Audra Jan SolowayPaul, Weiss, Rifkind, Wharton &GarrisonLLP (NY)

1285 Avenue of the AmericasNew York , NY 100192123733289Fax: 2124920289Email: [email protected] TO BE NOTICED

Lawrence B. FriedmanCleary Gottlieb Steen &Hamilton,LLP(NYC)One Liberty PlazaNew York , NY 100062122252000Fax: 2122253499


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Email: [email protected] TO BE NOTICED

Melissa K. MarlerCleary Gottlieb Steen &Hamilton,LLP(NYC)One Liberty PlazaNew York , NY 10006(212)2252000 x2489Fax: (212)2253999

Email: [email protected] TO BE NOTICED

Mitchell A. LowenthalCleary Gottlieb Steen &Hamilton,LLP(NYC)One Liberty PlazaNew York , NY 100062122252000Fax: 2122253499Email: [email protected] TO BE NOTICED

Shawn Joseph ChenCleary Gottlieb Steen &Hamilton LLP(DC)2000 Pennsylvania Avenue, NWWashington , DC 20006(202)9741552Fax: (202)9741999Email: [email protected] TO BE NOTICED

Victor L. HouCleary Gottlieb Steen &Hamilton,LLP(NYC)One Liberty PlazaNew York , NY 100062122252609Fax: (212) 2253999Email: [email protected] TO BE NOTICED

Date Filed # Docket Text

08/03/2009 1 COMPLAINT against Bank of America Corporation. Document filed by Securitiesand 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 andExchange Commission (Lewis, Maureen) (Entered: 08/03/2009)

08/04/2009 3 NOTICE OF APPEARANCE by Lewis J. Liman on behalf of Bank of AmericaCorporation (Liman, Lewis) (Entered: 08/04/2009)

08/05/2009 4 NOTICE OF APPEARANCE by Joseph O. Boryshansky on behalf of Securities andExchange 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:


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08/05/2009)

08/06/2009 6 ORDER: the Court will convene a hearing on Monday, August 10, 2009 at 4 PM inCourtroom 14B at 500 Pearl Street, New York, New York to hear from the partieswith respect to their proposed Consent Judgment. SO ORDERED. (Signed by JudgeJed 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 AmericaCorporation (Chen, Shawn) (Entered: 08/07/2009)

08/24/2009 8 MEMORANDUM OF LAW on Behalf of Bank of America Corporation, datedAugust 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 ofAmerica Corporation. (Liman, Lewis) (Entered: 08/24/2009)

08/24/2009 10 AFFIDAVIT of Joseph A. Grundfest, sworn to on August 21, 2009 re: 8Memorandum of Law. Document filed by Bank of America Corporation.(Attachments: # 1 Exhibit List, # 2 Exhibit A Part 1, # 3 Exhibit A Part 2, # 4 ExhibitB, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 ExhibitM, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 ExhibitR)(Liman, Lewis) (Entered: 08/24/2009)

08/24/2009 11 DECLARATION of Melissa K. Marler, dated August 23, 2009 re: 8 Memorandum ofLaw. 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, # 13Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18Exhibit 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 ExhibitA, # 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. Rakoffon 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. CourtReporter: Southern District Reporters, P.C.. (cg) (Entered: 09/01/2009)

09/09/2009 18 BRIEF IN FURTHER SUPPORT OF ENTRY OF PROPOSED CONSENTJUDGMENT. Document filed by Securities and ExchangeCommission.(Boryshansky, Joseph) (Entered: 09/09/2009)

09/09/2009 19 DECLARATION of Jennifer A. Kennedy, dated September 9, 2009. Document filedby Bank of America Corporation. (Attachments: # 1 Exhibit Cover page, # 2 Index toExhibits, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit16)(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,Lewis) (Entered: 09/09/2009)


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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 herebydisapproved the Consent Judgment, directs the parties to file with the Court, no laterthan one week from today, a jointly proposed Case Management Plan that will havethis case ready to be tried on February 1, 2010. (Signed by Judge Jed S. Rakoff on9/14/2009) (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 andExchange Commission (Black, Scott) (Entered: 09/21/2009)

09/21/2009 24 NOTICE OF APPEARANCE by Alexander Mircea Vasilescu on behalf of Securitiesand Exchange Commission (Vasilescu, Alexander) (Entered: 09/21/2009)

09/21/2009 Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conferenceheld on 9/21/2009. (mro) (Entered: 09/23/2009)

09/22/2009 25 CASE MANAGEMENT PLAN: Amended Pleadings due by 10/19/2009. Joinder ofParties due by 10/19/2009. Motions due by 2/3/2010. Responses due by 1/18/2010Replies due by 1/25/2010. Discovery due by 1/2/2010. Oral Argument set for2/3/2010 at 10:00 AM before Judge Jed S. Rakoff. (Signed by Judge Jed S. Rakoff on9/21/09) (js) (Entered: 09/22/2009)

09/22/2009 26 ORDER: This Order will serve to confirm the rulings made during the Court'stelephonic conference call with the parties on September 21, 2009. Prior to the calland pursuant to the Court's prior direction, the parties had submitted a proposed CaseManagement Plan, in which they agreed to all dates except for the dates for joinder ofadditional parties and for the amendment of pleadings without leave of Court. In thetelephone conference, the Court resolved this dispute by setting October 19, 2009 asthe date by which a party could, without leave of Court, unilaterally amend itspleadings or add additional parties. However, as the Court emphasized in thetelephone conference, this in no way precludes any party from moving at any timeprior to the close of discovery to add additional parties or amend its pleadings withleave of Court. In the latter circumstance, however, the adversary party will have theopportunity to be heard before such additions or amendments are accepted. In allother respects, the Court accepted the case management dates jointly proposed by theparties, even though it obliged the Court to move the trial date to March 1, 2010. Seethe signed Case Management Plan issued by the Court late yesterday. However, theCourt wishes to emphasize that it regards the March 1, 2010 trial date as firm andfixed. (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,Lewis) (Entered: 09/25/2009)

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 AmericaCorporation (Hou, Victor) (Entered: 10/08/2009)

10/09/2009 32 DEMAND for Trial by Jury. Document filed by Bank of America Corporation(Liman,Lewis) (Entered: 10/09/2009)

10/14/2009 33 ORDER, yesterday, the parties submitted the attached "Disclosure StipulationAgreement and Proposed Protective Order".....The Court wishes to make clear,however, that it interprets the proposed Protective Order as simply protecting Bank ofAmerica against any claim that the stipulated waiver here attached implicitly


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effectuates a broader waiver; but the Protective Order in no way precludes any partyin this or any other case from challenging on any other ground Bank of America'sassertion of attorneyclient privilege or workproduct protection regarding anyinformation. With this understanding, the Court hereby approves the proposedProtective 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 andExchange Commission (Griffin, Wendy) (Entered: 10/14/2009)

10/19/2009 35 ORDER. THE COURT, having received and reviewed the request, and good causeapparent, has ruled that Joseph H Zernik's request for a leave to file as Party inInterest in SEC v BAC (09CV06829JSR), 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 bySecurities and Exchange Commission.(laq) (Entered: 10/21/2009)

10/22/2009 37 NOTICE OF APPEARANCE by Brad Scott Karp on behalf of Bank of AmericaCorporation (Karp, Brad) (Entered: 10/22/2009)

10/22/2009 38 NOTICE OF APPEARANCE by Daniel Jonathan Kramer on behalf of Bank ofAmerica Corporation (Kramer, Daniel) (Entered: 10/22/2009)

10/22/2009 39 NOTICE OF APPEARANCE by Alex Young Kyong Oh on behalf of Bank ofAmerica Corporation (Oh, Alex Young) (Entered: 10/22/2009)

10/22/2009 40 NOTICE OF APPEARANCE by Mark Floyd Pomerantz on behalf of Bank ofAmerica Corporation (Pomerantz, Mark) (Entered: 10/22/2009)

10/22/2009 41 NOTICE OF APPEARANCE by Theodore Von Wells, Jr on behalf of Bank ofAmerica 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 Ordershall 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 ExchangeCommission.(Liman, Lewis) (Entered: 10/30/2009)

11/02/2009 44 STIPULATION AND ORDER GOVERNING EXPERT REPORTS, DISCLOSURESAND DISCOVERY...regarding procedures to be followed that shall govern thehandling 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 ofAmerica Corporation (Falcone, Marc) (Entered: 11/02/2009)

11/02/2009 47 NOTICE OF APPEARANCE by Joyce Szuyun Huang on behalf of Bank of AmericaCorporation (Huang, Joyce) (Entered: 11/02/2009)

11/02/2009 48 NOTICE OF APPEARANCE by Audra Jan Soloway on behalf of Bank of AmericaCorporation (Soloway, Audra) (Entered: 11/02/2009)


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11/02/2009 Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conferenceheld on 11/2/2009. (tro) (Entered: 11/04/2009)

11/04/2009 49 NOTICE OF APPEARANCE by Mitchell A. Lowenthal on behalf of Bank ofAmerica Corporation (Lowenthal, Mitchell) (Entered: 11/04/2009)

11/04/2009 50 NOTICE OF APPEARANCE by Lawrence B. Friedman on behalf of Bank ofAmerica Corporation (Friedman, Lawrence) (Entered: 11/04/2009)

11/05/2009 51 PROTECTIVE ORDER: Regarding procedures to be followed that shall govern thehandling 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 requestedthat the Court compel the production of certain documents as further listed in thisOrder. Because the document sought are internal SEC communications, BofA cannotclaim to have relief on them in preparing the Joint Proxy Statement. As a result, thecases that does not involve solely public SEC documents did not address this issueand so it likewise irrelevant. Moreover, BofA has previously attested by letter to theSEC that it would not "assert staff comments and the declaration of effectiveness as adefense in [this] proceeding." Nor, under section 26 of the Exchange Act, can theSEC's "failure to act... be construed to mean that [it] has in any way passed upon themerits of, or given approval to,.. any transaction... [or] be deemed a finding. that suchstatement or report... is not false or misleading." 15 U.S.C. 78z. The Courtconcludes therefore that the requested materials are not reasonably calculated to lead

to admissible evidence, and therefore denies the motion to compel. (Signed by JudgeJed 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 Conferenceheld on 12/17/2009. (mro) (Entered: 01/11/2010)


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 theSEC 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 tocompel 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 introducedinto evidence at trial (or on summary judgment) all those portions of the profferedtestimony of the parties' experts that relate, directly or indirectly, to media reportsconcerning the yearend bonuses. At first blush, this would appear to eliminate theentirety of Prof. Grundfest's testimony, much of Prof. Hubbard's testimony, and, forthat 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 issuesraised in the S.E.C.'s motion, e.g., whether the testimony of certain witnesses iscumulative, the Court reserves decision until at or near the time of trial. The Courtlikewise gives leave to the parties to raise further issues relating to the testimony ofthe experts, e.g., methodological issues, after the depositions of the experts arecompleted. (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)



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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 thisletter, in accordance with Your Honor's instruction, to move in limine to excludevarious expert testimony that defendant Bank of America (BOA) has indicated it willintroduce at trial. In the event that the Court does not preclude, at this time, thetestimony of these experts, we request that the Court extend the deadline fordepositions 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 ExchangeCommission.(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 theSecurities and Exchange Commission dated 12/14/09. We submit that the Courtshould reject the SEC's effort to exclude the testimony of all of BOA's expertwitnesses based solely upon their written reports because (1) the request is prematureand (2) the request is wholly without merit. In addition, BOA believes that the Courtcan provide ample time for the completion of expert discovery while maintaining theexisting schedule for fact discovery, summary judgment briefing and trial. Documentfiled 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 letterin accordance with Your Honor's instruction at the 12/17/09 oral argument on theCommission's application to exclude Bank of America Corporation's proposed experttestimony. For the reasons listed herein, we believe that the express warning toshareholders in BOA's proxy statement to refrain from relying on extrinsic materialswarrants preclusion,at this stage, of certain BOA's proposed expert testimony and thatadditional expert testimony should be excluded on other grounds. Document filed bySecurities and Exchange Commission.(mro) (Entered: 01/05/2010)

01/05/2010 60 LETTER addressed to Judge Jed S. Rakoff from Daniel J. Kramer dated 12/23/09 re:In accordance with Your Honor's direction at the 12/17/09 hearing, we write on behalfof defendants Bank of America Corporation; For all the reasons listed herein, theSEC's argument should be rejected. Document filed by Bank of AmericaCorporation.(mro) (Entered: 01/05/2010)

01/05/2010 61 LETTER addressed to Judge Jed S. Rakoff from Alexander Vasilescu, Scott Blackand Joseph Boryshansky dated 12/30/09 re: We submit this letter in response to Bankof America Corporation's 12/23/09 letter; As the Commission argued in its priorletters to the Court, some of BOA's proposed expert testimony should be excluded atthis stage on various grounds, including the fact that BOA's shareholders wereexpressly instructed to refrain from relying on materials that were extrinsic to themerger proxy statement. The arguments BOA raises in its December 23 letter do notmerit a different conclusion. Document filed by Securities and ExchangeCommission.(mro) (Entered: 01/05/2010)

01/05/2010 62 LETTER addressed to Judge Jed S. Rakoff from Daniel J. Kramer dated 12/30/09 re:Defendant submits this letter in further opposition to the SEC's demand that the Courtexclude relevant evidence and strike certain of BOA's experts. Document filed byBank 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 CompensationPractice 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)


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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 Boryshanskydated 12/31/2009 re: In accordance with the Court's instruction, we respectfullysubmit 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 SecondAmended Complaint ("SAC"). The SAC, a copy of which is enclosed for the Court'sreference, adds a count under Section 14(a) of the Securities Exchange Act of 1934("Exchange Act") and Rule 14a9 thereunder based on the failure of Bank of AmericaCorporation ("BOA") to update the merger proxy statement, before the December 5,2008 shareholder vote, concerning extraordinary losses that were sustained by MerrillLynch &Co., Inc. ("Merrill") prior to the vote. Document filed by Securities andExchange 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: Werespectfully submit this letter on behalf of defendant Bank of America Corporation("BOA"), in opposition to the SEC's December 31, 2009 letter, which seekspermission to file a Second Amended Complaint ("SAC"). From its inception, theSEC has proceeded in this action on the sole claim that BOA failed to disclose that

Merrill employees would receive yearend incentive compensation in 2008. When theSEC had the opportunity to amend its Complaint before this Court's October 19deadline a right the SEC fully exercised it chose not to add any allegations relatedto Merrill's 4Q08 losses. Now, just two months before trial, the SEC seeks asubstantial expansion of the Amended Complaint to include the new, unrelated andlegally novel charge that BOA was obligated to update its registration statementbefore the shareholder vote to disclose intraquarter losses Merrill had sustained orwas projected to sustain. Leave to amend should be denied because: (1) the SEC hasnot acted diligently, as it has known the key facts relating to its new claim since atleast February, but inexcusably waited until December 31 to make its motion; (2) theSEC's new claim has no legal basis and therefore would be futile; and (3) BOA wouldbe severely prejudiced if the amendment were allowed at this late date, as factdiscovery has closed, the date for submitting expert reports has passed, and trial is setto 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 AmericaCorporation. (rw) (Additional attachment(s) added on 1/11/2010: # 1 Exhibit , # 2Exhibit , # 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 Courthereby denies the Securities and Exchange Commission's request for leave to file asecond amended complaint, without prejudice to the SEC's bringing the new causes ofaction 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 copyof 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 briefstatement, not to exceed five doubledspaced pages each, giving their views on thisissue. CVN should then file a response, not to exceed ten doublespaced pages, by2/8/2010. (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 writeon behalf of Courtroom View Network, a news gathering division of CourtroomConnect; CVN requests that the Court issue an order pursuant to Local Civil Rule 1.8permitting CVN to provide audiovisual 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


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application; In the event that any of the parties object to this application, we wouldrequest 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 JedS. 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.. Documentfiled by Bank of America Corporation. (Attachments: # 1 Certificate of Service ofVictor 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 beheld at 2 p.m. (not 3 p.m. as previously scheduled) on Monday, February 8, 2010 inCourtroom 14B of the U.S. Courthouse, 500 Pearl St., New York, NY. (Signed byJudge 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. (mro) (Entered: 02/09/2010)

02/08/2010 Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conferenceheld 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 theparties, one that would resolve both of the cases now pending in this curiouslitigation. 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 NewYork 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 orseverally, to submit to the Court the underlying discovery materials, such asdeposition testimony, documents, and emails, bearing on (and arranged in accordancewith) 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 sharesdistributed to Merrill shareholders at the time of the merger. See tr. at 40. Per theparties' agreement, see tr. at 42, the parties' responses to the aforementioned queries,including requested supporting materials and information, must be submitted to theCourt, 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 documentwas 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 ofFacts. 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: Werequest that this Court enter the proposed Consent Judgment, either as originallypresented or with the amendments agreed upon by both parties. Document filed byBank 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 testimonyof five individuals take by the NY Attorney General's Office; We are concerned aboutthe possible impact disclosure of these materials could have on our ongoing


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investigations of other individuals; We cannot in a manner of consistent with ourprosecutorial 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: Wewrite to respond to the questions and instructions contained in the Court's order dated2/11/10 and in further support of the Commission's Motion for Entry of the ProposedConsent 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 haveprovided the Court with numerous deposition transcripts and other materials bearingon the Court's consideration of the new Proposed Consent Judgment that would settlethe abovecaptioned cases. Although at the time of the hearing on the ProposedConsent Judgment that was held before this Court on February 8, 2010, counsel forthe S.E.C. stated that "I don't think we have any doubt that we've accessed the sameproof, 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 Officestates that the aforementioned five transcripts "were not previously considered by [theS.E.C.] in constructing its investigation, litigation, or proposed settlement." It wouldtherefore be helpful to this Court to have these transcripts in evaluating, among otherthings, whether the conclusions on which the S.E.C. premises its proposed settlementhave an adequate basis in fact or are materially at variance with other sworntestimony. Cf. Manual for Complex Litigation (4th) at 457 ("To fulfill their role [in

evaluating securities class action settlements], judges may find it helpful to.. requirethe 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 Courtlikely has the power to order production of these transcripts to this Court, it would beinappropriate to do so without hearing any objections that the Attorney General'sOffice might have to such production in light of its ongoing investigation; but timeconstraints preclude such satellite proceedings. The Court therefore simply requeststhat the Attorney General's Office voluntarily produce to the Court, by no later thannoon this Friday, February 19, 2010 the five transcripts, or, even better, just thoseportions of the transcripts that bear on the questions posed in the Court's Order ofFebruary 11, 2010. If the Attorney General deems it necessary, such production canbe made, ex parte, to the Court alone, though the Court would prefer that theproduction 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 untilMonday, February 22, 2010, its ruling on whether or not to approve the ProposedConsent Judgment. No further adjournment, however, is possible, given the fixed trialdate of March 1, 2010 for the trial in 09 Civ. 6829 if the Court disapproves thesettlement. 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 GregoryCurl 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, # 7Brenner part 8, # 8 Brenner part 9, # 9 Brenner part 10, # 10 Brenner part 11, # 11Brenner 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 Berkerypart 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)


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02/17/2010 93 Joint Supplemental Appendix of Bank of America and the Securities and ExchangeCommission. (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: Wewrite in response to the 2/17/10 Ordered issued by the Court; For the reasonsexpressed 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 ofAmerica Corporation.(mro) (Entered: 02/19/2010)

02/19/2010 95 LETTER addressed to Judge Jed S. Rakoff from David A. Markowitz dated 2/19/10re: I write on behalf of the New York Attorney General in response to the Court's2/17/10 voluntary information request; In response to this request, we submit Excerptsfrom the sworn testimony of Timothy J. Mayopoulos, Jeffrey Brown, Thomas Brown,Ven Kocaj, and David Moser; We request that these materials be reviewed by theCourt 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 selfrestraint, this Court, while

shaking its head, grants the S.E.C.'s motion and approves the proposed ConsentJudgment provided that, by no later than this Thursday, 2/25/10, the parties presentthe Court with a proposed Consent Judgment that includes the revised provisions towhich they have consented, as set forth herein. (Signed by Judge Jed S. Rakoff on2/22/10) (dle) (Entered: 02/22/2010)

02/24/2010 97 FINAL CONSENT JUDGMENT AS TO DEFENDANT BANK OF AMERICACORPORATION # 10,0297 in favor of Securities and Exchange Commission againstBank of America Corporation in the amount of $ 150,000,001.00. (Signed by JudgeJed 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 herebyincorporated by reference as Exhibit A to the Final Consent Judgment that wasdocketed 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 Number896718 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 JosephO. Boryshansky dated 3/23/10 re: The Commission submits that distributing thepenalty and disgorgement funds in accordance with these terms will further theprinciples set forth in the Final Judgments, insure the fair and efficient administrationof the distribution of the funds, and afford compensation to shareholders of Bank ofAmerica who were most harmed by the Bank's alleged nondisclosures. Documentfiled 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 andconcludes that, while all three potential distribution firms have made worthyproposals, 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 theSEC's letter and hereby adopts them by reference. The SEC is hereby ordered to


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implement these proposals and, with the assistance of Rust Consulting, Inc., toexpedited the distribution of the funds, as promptly as possible. (Signed by Judge JedS. 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 thanJune 1, 2010, with subsequent reports to be filed on the first of the month every threemonths 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. isappointed as tax Administrator to execute all income tax reporting requirements,including the preparation and filing of tax returns, with respect to funds under thisCourt's jurisdiction in this case (the "Distribution Fund") All provisions as set forth inthis 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,Lewis) (Entered: 06/01/2010)

06/14/2010 107 ORDER TO DISBURSE FUNDS TO PAY TAX OBLIGATIONS: The Clerk of theCourt shall issue a check on the interest bearing account with the Court RegistryInvestment System associated with this action, for the amount of $725 payable toDamasco &Associates, LLP, for the payment of tax obligations as provided in theDeclaration. 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 thecheck by overnight mail to: Damasco &Associates, LLP, 700 Monte Vista Lane, HalfMoon, CA, 94019. The Commission's counsel shall provide the Court Registry withthe 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 tothe Finance Office, Rm. 120, via interoffice envelope on 6/14/2010. (tro) Modifiedon 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 -...

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