Bank of America Corp.'s former general counsel was fired in 2008 to create an opening for Brian Moynihan, who later succeeded Kenneth D. Lewis as chief executive, the Securities and Exchange Commission said.
In a court filing Wednesday, the SEC, citing Lewis, said Timothy Mayopoulos, the company's former general counsel, was not terminated in December 2008 because of his job performance or his legal advice.
"Rather, Mayopoulos was terminated in an attempt by Lewis to avert the imminent departure of the bank's then-head of global corporate and investment banking, Brian Moynihan, by offering Moynihan the position occupied by Mayopoulos and upgrading the position to one that directly reported to the chief executive officer," the SEC said.
The court filing was in connection with a $150 million settlement between B of A and the SEC over the company's disclosures before its acquisition of Merrill Lynch & Co.
Mayopoulos was terminated in December 2008, five days after shareholders approved the merger.
U.S. District Judge Jed S. Rakoff, who is overseeing the case, has questioned why the SEC did not come to the same conclusions about Mayopoulos' termination as New York Attorney General Andrew Cuomo, who has filed a separate lawsuit in state court in Manhattan.
At a hearing earlier this month, Rakoff said that Cuomo's lawsuit draws the inference that Mayopoulos was terminated because he wanted to disclose widening losses at Merrill Lynch before the deal closed.
"Lewis's account is corroborated by the testimony of several other senior officers and directors of Bank of America as well as contemporaneous e-mails and other communications," the SEC said. "His account is not contradicted by any evidence. There is no evidence that Joe Price, Bank of America's then-chief financial officer who had consulted Mayopoulos on disclosure in November and December, had any knowledge of, or participation in, the decision to terminate Mayopoulos."
In its filing Wednesday, the SEC said Mayopoulos advised the bank's senior management between Nov. 12, 2008, and Dec. 3, 2008, that the bank was not required to make additional disclosures regarding forecast fourth-quarter losses at Merrill Lynch.
The SEC said Price remembers advising Mayopoulos on Dec. 3, 2008, that the forecast after-tax fourth-quarter 2008 loss for Merrill Lynch had increased to $9 billion. However, Mayopoulos remembers being advised on Dec. 3 that the forecast after-tax loss was $7 billion, the SEC said.
On Dec. 3, 2008, Mayopoulos advised Price that there was no need for additional disclosure and said he would reach out to the bank's outside law firm to discuss the matter further, the SEC said. There was no record that Mayopoulos ever reached out to the outside law firm, the SEC said.
Mayopoulos said he first learned of the forecast of a $9 billion after-tax loss at Merrill on Dec. 9, the SEC said. Mayopoulos told the SEC that if the increase from a $7 billion loss to a $9 billion loss was the result of a wild guess then "such a guess was not appropriate basis for a public disclosure," the SEC said.
However, Mayopoulos told the SEC that once the forecast after-tax loss reached $10 billion, "the disclosure question became much more difficult."
The SEC said Mayopoulos had hoped to meet with Price on Dec. 9, 2008, the day before he was terminated, about the revised predicted after-tax loss at Merrill Lynch in fourth-quarter 2008, but was unable to meet with Price. There was no evidence that Price was aware Mayopoulos was looking for him on Dec. 9, 2008, the SEC said. The next morning, Mayopoulos was informed he was being terminated and replaced with Moynihan, the SEC said.