A U.S. judge approved a protective order allowing Bank of America Corp. to waive attorney-client privilege regarding some details of its acquisition of Merrill Lynch & Co. in a civil lawsuit by the Securities and Exchange Commission.
In an order Wednesday, U.S. District Judge Jed S. Rakoff in Manhattan approved the agreement, which would let the Charlotte banking company turn over some documents regarding the legal advice it got last year as part of its merger with Merrill Lynch.
"The court wishes to make clear, however, that it interprets the proposed protective order as simply protecting Bank of America against any claim that the stipulated waiver here attached implicitly effectuates a broader waiver; but the protective order in no way precludes any party in this or any other case from challenging on any other ground Bank of America's assertion of attorney-client privilege or work-product protection regarding any information," the judge wrote.
The case is set for trial in March after Rakoff last month rejected a $33 million settlement.
The SEC has alleged that Bank of America told investors in proxy documents for the purchase that Merrill had agreed it would not pay bonuses or other compensation to executives, without Bank of America's consent, before the takeover deal closed.
However, the SEC has said that Bank of America had already "contractually authorized" Merrill Lynch at the time to pay up to $5.8 billion in bonuses. B of A has denied wrongdoing.
Its board voted Friday to waive its attorney-client privilege regarding certain aspects of the merger in the SEC case and in other state and federal probes.
As part of the agreement, Bank of America will share information with the Justice Department, the inspector general for the Treasury's Troubled Asset Relief Program and the attorneys general of New York and North Carolina.
The waiver covers documents and other information related to the joint proxy statement filed before the merger, Bank of America's consideration of whether to invoke the agreement's material adverse change clause and its communication with the Federal Reserve Board, the Treasury Department and other federal agencies regarding the provision and terms of federal aid in connection with the merger.
