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Bank of America-SEC Settlement

By Adam Levitin

Judge Jed Rakoff nixed Bank of America's settlement with the SEC.  As he rightly noted, the price for management malfeasance is borne by shareholders, not by the managers.  Maybe the shareholders toss the bums out, but the entrenchment of corporate boards limits market discipline  So what is to be done?  The officers and directors' own personal liability is pretty limited; O/D insurance policies cover them, and as Tom Baker has shown, O/D premia are not sensitive to management practices.  I wonder whether the SEC should be more aggressive in pursuing officer/director bans:  make managing a public company a one-bite rule.   Slip up and you're out of the game.  This might make settlements much harder because defendants will be much more incentivized to fight, and the SEC has limited resources, but there are times when they should go to the mat, not least to make a very public example that might have some deterrent effect. 

Full post as published by Credit Slips on September 14, 2009 (boomark / email).