Bank of America agreed to pay $150 million to settle a civil complaint brought by the Securities and Exchange Commisison in connection with its acquisition of Merrill Lynch in the midst of the 2008 financial crisis.
Even as the SEC settlement was being announced, New York State Attorney General Andrew Cuomo announced a separate lawsuit against Bank of America, its former CEO Kenneth D. Lewis, and its former CFO Joseph L. Price for allegedly “duping shareholders and the federal government in order to complete a merger with Merrill Lynch.”
According to the lawsuit brought by Mr. Cuomo, Bank of America’s management “intentionally failed to disclose massive losses at Merrill so that shareholders would vote to approve the merger. 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.”
Bank of America has been in negotiations with both agencies to settle the suits, but negotiations with the N.Y. Attorney General apparently fell through.
A Bank of America spokesman told the New York Times: “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. The S.E.C. had access to the same evidence as the N.Y.A.G. 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.”
The SEC agreement must be approved by a federal judge. In addition to the $150 million fine, the agreement requires Bank of America to maintain seven reforms for three years. The SEC said the bank agreed to:
- Retain an independent auditor to perform an audit of the Bank’s internal disclosure controls, similar to an audit of financial reporting controls currently required by the federal securities laws.
- Have its Chief Executive and Chief Financial Officers certify that they have reviewed all annual and merger proxy statements.
- Retain disclosure counsel who will report to, and advise, the Board’s Audit Committee on the Bank’s disclosures, including current and periodic filings and proxy statements.
- Adopt a “super-independence” standard for all members of the Board’s Compensation Committee that prohibits them from accepting other compensation from the Bank.
- Maintain a consultant to the Compensation Committee that would also meet super-independence criteria.
- Provide shareholders with an annual non-binding “say on pay” with respect to executive compensation.
- Implement and maintain incentive compensation principles and procedures and prominently publish them on Bank of America’s Web site.
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