A federal judge weighing a U.S. Securities and Exchange Commission $150 million settlement with Bank of America Corp
U.S. District Judge Jed Rakoff in Manhattan ordered the bank and regulator to reveal whether anyone urged disclosure of Merrill's mounting losses between September 2008 and December 5, 2008, when bank shareholders voted to approve the merger. He also sought details on whether disclosure was sought over the bank's allowing Merrill to pay out $3.6 billion in bonuses.
In addition, Rakoff demanded more documents on the December 10, 2008 firing of bank general counsel Timothy Mayopoulos, and the role of the bank's law firm Wachtell Lipton Rosen & Katz LLP in deciding what to reveal about Merrill's losses, which grew to total $15.8 billion in the fourth quarter of 2008.
Rakoff ordered the SEC and Bank of America to answer these and other questions by February 16. He plans to decide by February 19 whether to approve the accord, which calls for shareholders to recover the $150 million, and sets governance and disclosure changes at the largest U.S. bank, including on executive pay.
Bank of America spokesman Bob Stickler and SEC spokesman John Nester said their respective parties will answer Rakoff's questions by the Tuesday deadline.
Rakoff expressed many of the concerns behind the questions at a hearing on Monday on the proposed settlement, which would end separate SEC lawsuits accusing the bank of hiding Merrill's losses and misleading shareholders about the bonuses.
Greater disclosure, however, could complicate Bank of America's efforts to defend a civil fraud lawsuit filed last week by New York Attorney General Andrew Cuomo. That lawsuit alleged there were discussions involving the bank as early as mid-November 2008 over whether to reveal Merrill's losses.
Rakoff rejected in September an earlier $33 million accord over the bonuses as too lenient and because it did not hold individuals responsible.
At the Monday hearing, he praised some elements of the revised accord. If he rejects it, however, both sides face a trial on the bonuses, set to begin on March 1.
Other questions that Rakoff asked on Thursday included whether he could appoint a pay consultant and independent auditor for the bank if the SEC and Bank of America cannot agree on who should be hired.
He also asked whether he could direct how the $150 million is distributed, to ensure that shareholders supposedly harmed by the merger would be able to recover. The SEC has said the sum would go to shareholders who might have voted against the merger or sought a lower price if they knew Merrill's losses.
Cuomo also filed civil fraud charges against Kenneth Lewis and Joe Price, who were, respectively, the bank's chief executive and chief financial officer at the time of the merger.
Lewis retired from the bank at year end, while Price is now its consumer and small business banking chief. Brian Moynihan, who replaced Lewis as chief executive, is not a target of Cuomo's probe, the attorney general's office said last week.
Bank of America shares closed Thursday down 4 cents at $14.63 on the New York Stock Exchange.
The cases are SEC v. Bank of America Corp, U.S. District Court, Southern District of New York, Nos, 09-06829 and 10-00215.
(Reporting by Jonathan Stempel; additional reporting by Rachelle Younglai in Washington, D.C.; editing by Andre Grenon)