New York is being observed closer then ever BoA/Merrill Lynch merger: New York sues, North Carolina settles

New York

On the same day that Bank of America announced that it has entered into a proposed settlement with the North Carolina Attorney General and the Securities and Exchange Commission to resolve all cases filed by the SEC related to the Merrill Lynch merger, New York State Attorney General Andrew M. Cuomo announced a lawsuit against the bank over that same merger.

According to the New York State Attorney General’s web site, the lawsuit accuses the Charlotte-based bank of “duping shareholders and the federal government” in the merger.

“Bank of America’s management intentionally failed to disclose massive losses at Merrill so that shareholders would vote to approve the merger,” a press release on the attorney general’s web site stated. “Once the deal was approved, Bank of America’s management manipulated the federal government into saving the deal with billions in taxpayer funds by falsely claiming that they would back out of the deal without bailout funds.”

Meanwhile, Bank of America, on its web site, declared that they did nothing wrong in the merger.

“After conducting a full investigation in connection with the actions settled today, the SEC staff has determined that no one acted with any intent to mislead and that charges against individuals for their roles in connection with proxy disclosure are not appropriate,” the bank’s press release stated.

Asked about Cuomo's charges, BoA spokesman Robert Stickler said in an email to Examiner.com: "We find it regrettable and are disappointed that the NYAG has chosen to file these charges, which we believe are totally without merit. The evidence demonstrates that Bank of America and its executives, including Ken Lewis and Joe Price, at all times acted in good faith and consistent with their legal and fiduciary obligations. In fact, the SEC had access to the same evidence as the NYAG and concluded that there was no basis to enter either a charge of fraud or to charge individuals. The company and these executives will vigorously defend ourselves."

After BoA acquired Merrill Lynch in late 2008, many questioned whether former chairman Ken Lewis agreed to pay too much for the troubled firm. Later, many questioned whether Lewis adequately disclosed the risks of the acquisition to his shareholders.

Lewis retired at the end of 2009, though he attributed his retirement to desires to transition to the next generation of executives rather than to any criticism surrounding the merger.

Cuomo’s lawsuit had some harsh words for BoA: “This was an arrogant scheme hatched by the bank’s top executives who believed they could play by their own set of rules,” his press release stated. “In the end, they committed an enormous fraud and American taxpayers ended up paying billions for Bank of America’s misdeeds.”

BoA’s announcement of the settlement in North Carolina portrayed the bank in a different light: “Bank of America is pleased to have come to these agreements with its regulators, and the company looks forward to continuing to pursue its primary mission of providing high quality financial solutions to help customers meet their goals and help the economy grow.”

However the North Carolina settlement was not without penalties; the terms of the settlement included that BoA pay $1 in disgorgement and an additional $150 million as a civil penalty to be distributed to shareholders as part of the SEC's Fair Fund program at a later date in accordance with further order of the court, the bank’s press release stated.

A payment of $1 million will also be made to the office of N.C. Attorney General Roy Cooper for its consumer protection purposes, the release added, stressing that that payment  "is not a penalty or a fine.”

Other terms of the settlement include that BoA

* Engage an independent auditor to perform an assessment and provide an attestation report on the effectiveness of the company's disclosure controls and procedures.

* Furnish management certifications signed by the CEO and CFO with respect to proxy statements.

· Retain disclosure counsel to the audit committee of the company's board of directors.

* Adopt independence requirements beyond those already applicable for all members of the compensation committee of the company's board of directors.