B of A II – Return to Rakoff

OK, is it just me, or didn’t Judge Rakoff in the SEC v. B of A action just tell everyone (in an opinion the Washington Post charitably called “a scathing critique“)  that the earlier proposed settlement “is not fair, first and foremost, because it 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.”

That was at $33 million.  So 2009 Judge.  Now the new proposal is to do the same thing at $150 million?  Huh?  Doesn’t that just make it 5 times worse?  Oh Boy.  If I know Judge Rakoff, and I don’t — but my co-counsel and former colleague Dave Brower and I did split the oral argument in the In re Merrill Lynch Deriv. Litig. action in front of him last year — so I know exactly how serious he can be.

Columbia’s John Coffee told the New York Law Journal that “the difference might be that the judge’s concern about ‘accountability will now be addressed by someone else’ — the state’s attorney general,” who brought his own lawsuit today.  That hardly seems reason to approve the settlement if you ask me.

All I can say is maybe an “Unopposed Agreed Joint Pretty Please With A Cherry On Top We Really Need to Do This Motion to Approve the Proposed Settlement” is in order.

Yes Shorter is Better (at least in legal briefing)

OK, you know who you are.  The serial page extension requesters.  But Judge, we have to have 100 pages to explain it. I know, I know, we’ve all done it.  And yes I agree sometimes it’s necessary.  But District Judge Joy Flowers Conti has a very good reason to resist the temptation of going page limit crazy.  What’s that?  Well, as she has observed:

Counsel and the parties should be aware of the court’s experience that shorter briefs are almost always more persuasive because they get to the point faster. They also contain less extraneous material that dilutes the parties’ main arguments, and frequently interferes with prompt resolution.

So there you have it.  As Blaise Pascal ( a brilliant writer skilled at humor, mockery, and vicious satire) said, “I made this letter longer than usual because I lack the time to make it short.”  Can’t say it better (or should I say shorter) than that.  Bet you can’t either.

You can read the order here

Nugget (I know you’ve missed it): Counsel should be aware that the court discourages reply briefs as usually repetitive and therefore wasteful. Reply briefs therefore should promptly state the novel matter contained in the opposition brief that merits a reply, and not merely assert that opposing counsel has misstated the law.