New York Attorney General Andrew Cuomo subpoenaed five Bank of America Corp. board members to testify under oath as part of his investigation into B of A's purchase of Merrill Lynch, according to a person familiar with the probe.

The five were members of the audit committee in late 2008, at the time of the Merrill purchase, according to another person familiar with the situation. Mr. Cuomo subpoenaed current chairman Walter Massey and retired U.S. Army General Tommy Franks, as well as Thomas May, John Collins and Bill Barnet. Franks, Collins and Barnet left the board this year.

Cuomo is looking into whether B of A's directors withheld information from shareholders.

Cuomo said his investigation has led him to suspect that the board was kept in the loop on mounting losses at Merrill Lynch in early December, before the shareholder vote Dec. 5 to approve the merger. Cuomo's investigators will ask directors how much they knew about Merrill's losses, and their role in decisions about disclosing information to shareholders.

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