Rakoff rejected a proposed $33 million settlement between the SEC and Bank of America in 2009 after the regulator accused the bank of failing to adequately inform its shareholders of its increasing knowledge of what would ultimately amount to $15 billion in losses at Merrill Lynch prior to its acquisition of the securities dealer.
Bank of America officials also failed to tell shareholders about an agreement to let Merrill pay out nearly $6 billion in bonuses despite those losses while the merger was pending, according to the SEC.
Rakoff's court ultimately approved a larger $150 million settlement between the SEC and Bank of America, "while shaking its head," according to the judge's opinion.
Rakoff later rejected a proposed $285 million settlement between the SEC and Citigroup in November 2011. In that case, the SEC accused Citigroup of failing to tell investors it was betting against mortgage securities it sold them.
As part of that deal, Citigroup agreed it would never violate any of the main antifraud provisions of U.S. securities laws. However, according to
The New York Times
Citigroup had already promised not to violate that same antifraud statute
on at least four separate occasions.
Rakoff rejected the proposal, scheduling a hearing for July. However, Citigroup and the SEC appealed to the United States Court of Appeals for the Second Circuit. A motions panel of the appeals court was scheduled to "consider whether to further stay the proceedings beginning Jan. 17," according to a report in
The New York Times
in December, but whether the panel considered such an action and, if so, what it decided could not be determined. The court is still considering the SEC's appeal, according to an SEC spokesman.
The Citigroup and Bank of America episodes do not instill confidence that the SEC has changed its stripes. Neither, according to Columbia's Coffee, does a proposed settlement between the SEC and two former Bear Stearns hedge fund managers accused of misleading investors. (The SEC has not announced the settlement, though it has been reported by at least four major news organizations, all of which cite anonymous sources.)
Coffee called the proposed settlement "weak," adding it "suggests that they remain very risk averse about going to trial."