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Feb 09
2010

The CFO Nightmare Before Easter

Posted by kcates in RakoffMerrill LynchKen LewiskcatesJoe PricecomplianceBank of AmericaAndrew Cuomo

kcates

 

As professional horrors go, they probably don't get a whole lot more unsettling than Joe L. Price's.

Price, the former CFO at Bank of America, must be tossing and turning lately, what with the attorney general of New York naming him personally last week in a lawsuit over the bank's handling of the ugly Merrill Lynch acquisition/investor-subsidized bailout/compensation party in late 2008. 

Now, Price and former BofA CEO Ken Lewis face another unpleasant twist in what they must've thought originally was a slam dunk in an awkward but palatable settlement with the SEC over the Merrill Lynch deal (beware that slam-dunk feeling (see Tenet, George)). Recall how Jed Rakoff, the irascible U.S. District Court judge presiding over the BofA/Merrill Lynch case, last year rejected a settlement between the SEC and BofA, saying that $33 million wasn't nearly enough for the bank to make things right with investors who were kept in the dark about the unsavory downside - if that's not too generous a word - for taking on Merrill Lynch's baggage. And then on Monday Rakoff started asking mean questions about the second rendition, in which the SEC and BofA are saying, okay, fine, how does $150 million sound?

Going by some of the doubts Rakoff raised, he isn't leaning toward letting the BofA executives ease on out of their difficult litigation-riddled winter into a springtime of sun-dappled redemption and new life. Easter, as it were, may yet be cold and wet (as may Passover, choose your festival). But don't blame Rakoff because there are better scapegoats - the SEC, Andrew Cuomo, Punxatawny Phil ...

Cuomo, that pesky AG in Albany, asserted in his allegations against Price et al that BofA lawyers who had counseled against pulling the curtain aside on certain details about Merrill Lynch were essentially operating in the dark and that they were, therefore, misled. "Bank management failed to provide any of their lawyers with accurate information about the losses which the disclosure issue concerned," the civil-suit complaint says, adding painful elaboration that alleges "false and incomplete information provided by Price." (Ron Fink explains here).

This is not the kind of thing a CFO likes to read about himself or herself, which is why it may be best as a rule to come clean from the get-go. At the heart of the controversy is the assertion that BofA execs were simply not forthright about how they allowed Merrill Lynch brass to receive billions of dollars in bonus bucks in exchange for having lost billions of investor dollars.

In such a context, Radoff has implied, $33 million is chicken feed and $150 million is - I don't know - cat food?  The good judge apparently wants the bankers to throw some steak over the wall. 

Also at issue, and fundamental to how BofA is managed going forward, are questions about how certain aspects of corporate governance are handled, perhaps especially about how compensation is set.  Rakoff suggested that there might be better ways to come up with a reasonable pay scheme than leaving it to BofA's compensation committee to pick its compensation consultant of choice.

A big clue about how he might rule on this is in his observation on Monday as to the "incredibly bloated compensation of too many executives in too many American companies."

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