Bank of America Corp. fired back at New York Attorney General Andrew Cuomo on Tuesday with a letter labeling his office's allegations of wrongdoing "spurious" and asserting that it is not hiding behind its lawyers by refusing to provide testimony on privileged discussions about the purchase of Merrill Lynch.
The letter, from Bank of America's outside attorney, Lewis Liman, responds to a letter from David Markowitz, chief of Cuomo's investor protection bureau, that accused the bank of "indiscriminate invocation of the attorney-client privilege" and "hindering" efforts to determine which company officers potentially should be charged with securities violations.
Markowitz also outlined four "failures" to tell shareholders material information related to the bank's takeover of Merrill.
"The basic premise of the letter is simply wrong," Liman wrote.
The bank, Liman said, has not "offered reliance on legal advice as a justification for its disclosures," and "no one has sought to take unfair advantage of the assertion of the privilege by hiding information from your office or anyone else."
Cuomo's office on Tuesday highlighted several areas of alleged wrongdoing by Bank of America and "its senior officers," including a merger proxy document that did not mention $3.6 billion in Merrill bonuses, nondisclosure of Merrill's forecast losses, no mention of a $2 billion goodwill charge or of a discussion before a Dec. 5 shareholder vote about whether Merrill's losses amounted to a "material adverse effect." The finding of a material adverse effect could have triggered a B of A move to back out of the deal.
Liman said the merger proxy document "did not contain any false or misleading statements," that the goodwill charge was reconciled via purchase accounting at the completion of the merger and that no law required the bank to disclose Merrill's mounting losses or discussions about terminating the merger.
"Bank of America and Merrill Lynch properly reported Merrill Lynch's results when they were required to do so — after the close of the quarter," he wrote.
The letter also addressed conversations among bank executives about a material adverse effect. "The testimony is uncontroverted that Bank of America did not consider invoking the material adverse effect until the middle of December, after the shareholders voted to approve the merger and after Bank of America had received updated forecasts including the actual results for November 2008," he wrote.
Separately, the Securities and Exchange Commission on Wednesday reiterated its argument that a $33 million penalty against Bank of America appropriately resolves claims the company misled investors about bonus payouts at Merrill. It "is consistent with SEC policy and prior precedent," the filing said.