Timely response requested by Friday, September 18, 2009, 5:00 pm
Please take notice. Following the September 14, 2009 Memorandum Order [i] by the Honorable Jed Rakoff, please be informed of my intent to further explore conditions at the U.S. District Court, NY, aiming to intervene in the action. I therefore also offer hereby to confer in re: Case Management Plan, required by the Court in the same Order, so that no delays would be later incurred.
No doubt, I was delighted to notice in the September 14, 2009 Order, wording such as:
"the proposed Consent Judgment was a contrivance designed to provide the SEC with the facade of enforcement" .
The Proposed Settlement was "neither fair, nor reasonable, nor adequate."
...
The Court considered SEC less than eager to inflict penalties on BAC and its senior executives. It is only common sense to make the inevitable next logical step: SEC and BAC came to court on friendly terms - SEC not truly intending to enforce the law, and BAC not truly intending to comply with the law. It was unlikely that the Court would be able to compel adversary between such friends. Since the U.S. justice system was founded on the adversarial principle, it was also unlikely that instant proceedings would materialize as effectual litigation, unless conditions were generated that would allow at least one additional party, truly adversarial, to step in on a level playing field.
...
I therefore copy below the ending of the August 30, 2009 letter, verbatim:
Please fax and/or email ... copies of the following records, together with a declaration by a Custodian
of Records in this regard:
1. NEFs (Notices of Electronic Filing) of all papers filed by parties and of all
orders filed by the Court in this action so far (each NEF is about 1-2
pages long, for a total of about a dozen records), both as PDFs and as
digital files such as they are displayed in CM/ECF. Copies of the records
themselves are not requested.
2. Summons, as issued by clerk.
3. Summons, as an executed record.
The litigation records in SEC v BAC, as they were so far published, must be
deemed uninformative and confusing, vague and ambiguous ...
...
The only change is in timing the request for Friday, September 18, 2009, 5:00 pm, and adding to it a request for response in re: the offer to confer by that time as well.
Dated: September 16, 2009 Joseph H Zernik
The complete letter can be viewed at:
http://inproperinla.com/09-09-16-notice-to-parties-of-intent-and-offer-to-confer-s.pdf
[i] http://inproperinla.com/00-00-00-us-dist-ct-ny-sec-v-bac-09-09-15-doc-22-memorandum-opinion-reject-proposed-settlement-try-feb-2010-no-blue-header-imprints.pdf
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