Brian Moynihan, a contender to become Bank of America Corp. chief executive, has agreed to testify before Congress about his role in the Merrill Lynch & Co. takeover, said people familiar with the matter.
Moynihan, 50, who now heads consumer banking at B of A, is to appear at a House Oversight Committee hearing on Nov. 17, according to two people who spoke anonymously. He is to be joined by Timothy Mayopoulos, whom Moynihan succeeded as general counsel in December as the Merrill deal nearly unraveled. Mayopoulos has been interviewed privately, another person said.
"We'd hope the hearing would relate to events surrounding the departure of Timothy Mayopoulos from Bank of America," said Jonathan Finger, a B of A shareholder who pressed for Ken Lewis' ouster as chairman last spring. "Another important area for the committee to look at is the legal advice that Mr. Moynihan gave to Ken Lewis for a talking-points memo prior to meeting with the bank's board of directors later in December."
The panel is investigating how B of A's rescue of Merrill Lynch during last year's financial industry meltdown turned into one of the most costly public bailouts. The Charlotte banking company needed $20 billion from the government, on top of $25 billion already awarded, plus $118 billion of guarantees in order to close the Merrill deal.
The committee has pressed B of A to turn over related documents, which it did on Oct. 16. Some were written by board member Chad Gifford, who also is to appear Nov. 17, the people said. The committee is sorting through about 1,000 pages that include e-mails, correspondence among senior managers, lawyers and directors, as well as "talking points" for executives speaking with regulators, according to copies of about 50 pages. Some e-mails list Moynihan as the sender or recipient.
Investigators also got handwritten meeting notes, scribbled on hotel stationery and pads from Harvard Business School's executive education program, that are attributed to board members and senior executives, including Lewis and Chief Financial Officer Joe Price.
The committee is focusing on B of A's deliberations last December on whether to abort the Merrill takeover as the brokerage firm's losses swelled.
One e-mail shows B of A discussing growth in Merrill's losses as early as Nov. 5. Mayopoulos was ousted Dec. 10, nine days after telling Lewis that the losses did not constitute a legal case for canceling the Merrill deal, according to a person familiar with the matter. In an interview with committee investigators last month, Mayopoulos repeatedly said he was given no explanation of his dismissal, the person said.
A Dec. 10 B of A press release said that Moynihan had succeeded Mayopoulos as general counsel. Mayopoulos now is general counsel at Fannie Mae.
Wachtell, Lipton, Rosen & Katz, B of A's legal adviser, wrote a Dec. 18 memo to bank management questioning whether a "material adverse change" had occurred even as Merrill's losses ballooned, according to a document given the committee.
Moynihan was named head of investment banking and wealth management in January, then moved in August to lead consumer banking. He and Chief Risk Officer Greg Curl are considered the likeliest internal candidates to succeed Lewis.
