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Feb 05
2010

B of A far from putting Merrill deal in the past

Posted by MQuinn in settlementsecfraudcomplianceBank of America

MQuinn

The Securities and Exchange Commission announced on Thursday that it had settled -- again -- with Bank of America over charges that the bank misled shareholders about $3.6 billion in bonus payments to employees of Merrill Lynch, which B of A acquired in 2008.

The original $33 million settlement was, of course, rejected by U.S. District Court Judge Jed Rakoff. The judge initially refused to sign off on the deal, openly questioning why the commission would agree to such a deal if the charges against Bank of America were true. He later went further, saying the settlement "does not comport with the most elementary notions of justice and morality" because it subjects shareholders to a monetary penalty for the bank's alleged misconduct.

Under the terms of the new settlement, Bank of America agreed to pay $1 in disgorgement and an additional $150 million as a civil penalty to be distributed to shareholders as part of the SEC's Fair Fund program. That should take care of the judge's concerns about the shareholders being the ones punished by the settlement.

Bank of America also agreed to bolster disclosure and governance practices. But, in all honesty, there is nothing particularly severe in there. Just some more consultants and counsels, who are in all likelihood already being retained, some added info to be posted on the company's web site and a "say on pay" advisory vote. Pretty standard fare in the world of good governance.

Will this be enough to appease Rakoff, who has been nicknamed "Judge Dredd"? Tough to say.

But even if he does, the storm surrounding the Merrill acquisition is a long way from over, because, also on Thursday, New York Attorney General Andrew Cuomo took up the torch from where the SEC set it down, charging former Bank of America CEO Kenneth Lewis and former CFO Joe Price with fraud regarding the deal. Cuomo brought the charges under New York's powerful Martin Act, which lets state prosecutors to go after just about any form of financial crime and force a settlement without a costly trial.

No, this is far from over.

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