A federal judge has ordered the U.S. Securities and Exchange Commission and Bank of America Corp
U.S. District Judge Jed Rakoff in Manhattan has said he will decide by February 19 whether to approve the accord, which calls for shareholders to recover the $150 million and sets governance and disclosure changes, including on executive pay.
A settlement would end separate SEC lawsuits accusing the largest U.S. bank of failing to tell shareholders about Merrill's rising losses ahead of a December 5, 2008 shareholder vote on the merger, and misleading investors about $3.6 billion of bonuses it authorized Merrill to pay out.
Rakoff rejected an earlier $33 million settlement over the bonuses as too lenient and because it did not hold individuals responsible. At a Monday hearing, he praised some elements of the revised accord. If he rejects it, both sides might have to proceed to a trial on the bonuses, set to begin on March 1.
The judge on Thursday demanded documents on the December 10, 2008 termination of bank general counsel Timothy Mayopoulos, and the role of the bank's law firm Wachtell Lipton Rosen & Katz LLP in deciding what to disclose about Merrill's losses.
He also demanded information that might show whether anyone after September 2008, when the merger was announced, urged disclosure of the Merrill losses or bonus authorizations ahead of the shareholder vote.
Rakoff also asked whether the hiring of a pay consultant and independent auditor must be acceptable to both sides, and whether he could make the appointments if they did not agree.
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.
Both sides have until February 16 to respond to Rakoff's questions. Bank of America spokesman Bob Stickler said the Charlotte, North Carolina-based bank will meet the deadline. The SEC did not immediately return a request for comment.
Last week, New York Attorney General Andrew Cuomo filed civil fraud charges against the bank, former Chief Executive Kenneth Lewis and former Chief Financial Officer Joe Price over 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 investigation, 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)