Facing imminent collapse during the height of the financial crisis of 2008-09, investment bank Merrill Lynch received a second lease on life as it was acquired by Bank of America. The deal was reportedly encouraged by the US Treasury which sought to avoid major contagion of failing banks. Later it emerged that Bank of America had failed to disclose to its shareholders in advance of their approval vote of the $50 billion purchase that $5.8 billion was being earmarked for Merrill Lynch executive compensation.

In the wake of public outrage of bank bailouts and bank executive pay the US Securities and Exchange Commission (SEC) brought a formal complaint against Bank of America together with a pre-negotiated $33 million settlement agreement to the court of US federal judge Jed Rakoff for final approval. The US Supreme Court discouraged judges from second-guessing the executive branch of government in granting such approvals but Rakoff questioned whether the settlement amount was proportionate to the scale of the misrepresentation. Moreover, he considered whether justice was being served as Bank of America shareholders, who were the victims of the misrepresentation, were being asked to bear the settlement cost, over the managers who had overseen the acquisition. Rakoff pondered whether to reject the settlement agreement.