Rep. says gov't didn't force BofA, Merrill deal

WASHINGTON - November 17, 2009

"The government did not elbow its way into this transaction," said House Oversight and Government Reform Committee Chairman Rep. Edolphus Towns. The New York Democrat said June testimony by Bank of America CEO Ken Lewis and documents obtained by the panel show it was the bank that forced the merger.

But the committee's ranking Republican, Darrell Issa of California, said the panel's work "has become an apparent cover-up of the continuing activities of the Obama administration," especially of Treasury Secretary Tim Geithner.

Geithner was chairman of the Federal Reserve Bank of New York at the time of the merger in December 2008.

The committee's inquiry is focused on the $45 billion federal bailout of Charlotte, N.C.-based Bank of America and its hastily arranged acquisition of Merrill last year. Bank of America executives knew they had little chance of legally being able to back out of the deal to buy Merrill, Towns said.

The former top attorney of Bank of America testified at the hearing that he wasn't involved in crafting the bank's agreement to let Merrill pay billions of dollars in bonuses to its employees, before being abruptly fired last December on CEO Ken Lewis' orders.

Timothy Mayopoulos, who was general counsel at the second-largest U.S. bank until December 2008, also said he played no role in deciding whether to disclose the bonuses to Bank of America shareholders.

"To my recollection, I had no role in this issue," Mayopoulos told the hearing. "That was done by others."

The Merrill deal, forged the same September weekend that Lehman Brothers collapsed, was first questioned after Bank of America disclosed that the investment bank would post 2008 losses of $27.6 billion - far more than expected. Bank of America, which had already received $25 billion in U.S. bailout aid, then asked for and received an additional $20 billion from the government to help offset those losses.

Mayopoulos said he advised Bank of America executives that the bank couldn't make a case that Merrill's huge losses provided legal grounds for it to back out of the merger deal.

Brian Moynihan, president of consumer and small-business banking, who took over as Bank of America general counsel after Mayopoulos' departure, testified that "I did not feel pressured at any point by the government."

Moynihan is considered by analysts to be a leading candidate to replace Lewis.

Lewis came under even fiercer attack after Merrill, with the knowledge of BofA executives, gave $3.6 billion in bonuses to its employees even as the government was doling out more rescue money. The bonuses, which would normally have been paid in January, were paid out in December ahead of the deal's Jan. 1 completion.

The bonus flap ultimately cost former Merrill Lynch CEO John Thain his job at Bank of America, and the continuing fallout led Lewis to decide to step down at the end of this year.

A key issue is what legal advice Bank of America received regarding disclosing the amount of the bonuses - which could have totaled up to $5.8 billion - to shareholders before their vote on the companies' merger. The Securities and Exchange Commission sued Bank of America in August, alleging that it failed to tell shareholders that it had authorized Merrill to pay that amount in 2008 even though the investment bank had suffered the stunning loss.

The terms of the bank's takeover of Merrill, including the bonus payments, were laid out in documents prepared by outside attorneys for the two companies. Bank of America was represented in the negotiations by the law firm Wachtell, Lipton, Rosen & Katz. Merrill's counsel was Shearman & Sterling. The attorneys were mainly responsible for drafting Bank of America's disclosure filings to the SEC.

The House panel's scrutiny follows months of legal wrangling over the deal. In September, New York Attorney General Andrew Cuomo subpoenaed five members of Bank of America's board as part of an investigation into the Merrill takeover. Seven directors have resigned from the board since shareholders replaced Lewis as chairman in April.

Bank of America had settled the SEC's separate case over disclosures of the Merrill bonuses in September, but a federal judge said the $33 million settlement accord was unfair and needlessly penalized the bank's shareholders. The judge has ordered the case to go to trial on Feb. 1.

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