S.D.N.Y. Upholds BofA’s Decision Not to Pursue Claims Against Merrill Lynch D&Os

On March 29, 2011, Judge Jed S. Rakoff of the Southern District of New York dismissed derivative suits filed by Bank of America Corp. shareholders who sought to pursue claims on behalf of BofA against the officers and directors of its subsidiary, Merrill Lynch & Co., for their part in Merrill’s CDO and RMBS losses. In his decision, Judge Rakoff noted that the allegations described the “kind of risky behavior by high-ranking financiers that helped create the economic crisis” but found that the plaintiffs’ claims were too conclusory to establish that BofA’s Board’s refusal to pursue the claims was made in bad faith. The Board’s letter of refusal stated that it had decided not to sue because the chances of recovery were slim, and doing so would undercut Merrill’s defenses in governmental inquiries and other subprime litigation. Merrill Decision.