For a brief moment, the SEC and Bank of America were strange bedfellows in an attempt to persuade Judge Jed Rakoff that their $33 million shareholder-paid fine was a good way to settle charges that the bank issued a misleading proxy. The judge didn't buy it. The SEC has since said it intends to go to court, though it holds open the possibility of appeal.

Bank of America has now also responded. It has formally denied charges that it in any way mislead shareholders, reports Reuters. The settlement did not force it to admit any guilt. Bank of America said it will seek an order to dismiss the SEC's claim.

Meanwhile, the judge has pushed back his trial start time to no later than March 1. It's legal position is getting more precarious by the day. You have to wonder how long the CEO can hold on. This stands as the first big test for the new board. 

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