Andrew Cuomo Has Had Enough With Bank Of America's Cowardice, Plans On Filing Charges

Tyler Durden's picture

The Attorney General, shockingly on the verge of "making charging decisions" with respect to Bank of America and its executives, sent an angry letter to Cleary Gottlieb, legal advisors for "TARP For Life" club member Bank Of America, demanding that Ken Lewis and other executives who may face some serious fines and or jailtime, stop hiding behind a client-attorney privilege which is preventing his office (and in a separate matter, that of Jed Rakoff) from making decisions on the matter of how much material information was hidden or misrepresented in the Merrill Acquisition, and present all the critically needed information.

Either way, now that Cuomo is on the verge of actually charging someone with criminal misdeeds, the only question remains who: will it be Bank Of America, with the likely fall guy being big man Lewis himself (and what more fitting end to the debacle than Ken going to jail, after being threatened by Paulson and Bernanke with eternal damnation, and deciding not to invoke the Mac clause), or, will it be Wachtell Lipton's main lawyer, Ed Herlihy, who, as we discussed previously, was instrumental in the arrangement of the ML-BAC transaction.

Bank Of America now has four business days in which to decide, based on its disclosures, who is going to be charged and with what crime. In the meantime, Rakoff must be also quite interested in this outcome. In that separate case, Bank Of America has until tomorrow, September 9, to come back to the judge with the additional information he has requested along the same lines. The next few days could end up being very interesting for Ken Lewis.




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Anonymous's picture

I bet Ken gets to be the husband.

bonddude's picture

300 LB. Wife sez "Slip into this thong hubby."

Cognitive Dissonance's picture

What was the name of that old song? Kenny and the bitch.

Fruffing's picture

Coumo's gonna have a hell of a time getting a job on Wall Street.

deadhead's picture

To the NY AG staff and Mr. Cuomo:

Thank you for your courage and intellectual fortitude in investigating this matter. 



deadhead's picture

who junked me?  Mary?  Kenny?  I know you're retired now, Hank; was it you? (p.s. hank, do you REALLY do mescaline?).

I know it wasn't sweet sally from citi cuz she wants kenny's chair real bad.

taraxias's picture

I hope Cuomo is not visiting $5,000/hr hookers across state lines.

Miles Kendig's picture

His cookies come prepackaged

bonddude's picture

He's clean...doesn't want to be excommunicated.

Anonymous's picture

THANKS ZH !! Great post ! I hate B of A and even though they will never pay any "REAL" penalty, this is a step in the right direction.

phaesed's picture

God let these f'n banks go down.... I am so sick of this ponzi scheme today.

economessed's picture

Perhaps they'd go down if we gave them a little push......

How much straw can a camel's back support anyway?

Anonymous's picture

very strong corp credit today

Corp credit - very strong move corp credit today (late in trading on Tues, IG was ~4.5-5bp tighter and HY was up 1.5 points, stronger than mid-day levels). Credit a
slight outperformer vs. equities today although recall during the month of Aug credit lagged stocks. Tues tracking as busiest day for US$ bond sales all year; companies
on pace for ~$11.3B worth of issues according to Bloomberg

JohnKing's picture

A shame really, I'm no fan of Ken Lewis but this smells like Goldman. Hanky Panky and Kamikaze Ben are every bit as involved as KL. I always thought the game plan was to push KL out and put Goldman boy Thain in, maybe that is still the play.

mule65's picture

"Hanky Panky"  -- LOL

bonddude's picture

Good prosecutors squeeze to climb the ladder of culpability. I've got to believe this more about his political aspirations than fronting for GS. I'm sure he believes his family is far more worthy to represent the Dems than the scuzzy Ark. & Chicago crowds.

So let's hope he keeps climbing the ladder and owns kevlar underwear. We could do worse than Coumo. And have.

Hephasteus's picture

The corruption glass ceiling is sitting about gutter level these days.

waterdog's picture

The judge has told the AG that the vice is in place and to bring him a body.

If Ken does not scream loud enough, then the lawyer will go next. But, a lawyer doing-in a lawyer, in that city? Not much of a chance.

I put my money on Mr. Lewis singing about the rest of the conversation that Bernanke does not recall.

taraxias's picture

He had a chance to sing and he didn't. Too late now.

JohnKing's picture

That works for me but KL might have already played that card the wrong way when he got cutesy with semantics in front of Congress... "I didn't perceive a threat". I'm sure that was music to Bennies ears.

Anonymous's picture

Mr Cuomo,

Thank you. I just sat here trying to think of something profound to write, but "thank you" is all I can think of. The SEC is undependable and incompetent. The Treasury is corrupt in some areas. The Fed is a wild card and, occasionally, frightening. I would love to invest in the economy but won't spend a dime if it involves the den of thieves now controlling Wall Street. I would love to put some of my life savings into investments that would hopefully create jobs and reward me for saving. At this time,that goal is not possible because so many thieves are loose on Wall Street. Please keep up the good work and don't let us down. Thank you.

deadhead's picture


Your paragraph IS profund.  Well said.  Your thoughts are shared by many.

percolator's picture

well said anon 62761

Sancho Ponzi's picture

'"TARP For Life" club member Bank Of America'

That's priceless. I needed a good laugh.

Anonymous's picture

Maily for future reference, the text inside the PDF can be extracted with various PDF readers. I used kpdf. Here's the quote in more readable form:


Bank of America's justification of these disclosure failures has been that the proxy
documents were prepared by two outside law firms. But Bank of America has not permitted the
issue to be explored at all, claiming attorney-client privilege. Indeed, we cannot even establish
whether these law firms were asked any of the questions vital to deciding whether to disclose:
Were the law firms asked to provide advice on whether Merrill and Bank of America needed to
disclose the major change in how Merrill set its bonus pool? Were the law firms asked to opine
on whether the accelerated bonus payments were appropriate given previously filed executive
compensation disclosures? Should the bonuses have been paid given Merrill's losses and the
need for taxpayer support? Were the bonuses appropriate? Should they have been disclosed
given Merrill's unprecedented losses? Were the law firms asked to opine on whether the
bonuses needed to be disclosed given that they were effectively being made possible by
promised taxpayer support? Who were the officers that sought the advice on these issues, and
what facts did they provide to counsel in seeking the advice? Without being afforded the
opportunity to ask these central questions, which Bank of America clearly puts at issue through
its position that its actions were made in reliance on advice of counsel, we cannot fully assess the
culpability of the Bank and its management concerning these disclosure failures.

As set forth above, we cannot simply accept Bank of America's officers' bald assertions
that their decisions to keep each of these material events from Bank of America's shareholders
were based on a full review of all the relevant information by their inside and outside counsel.
The law is clear that Bank of America and its officers cannot assert an advice of counsel defense
for their decisions, and at the same time persist in refusing to disclose the substance of the
conversations with counsel. Accordingly, we request that Bank of America reconsider its
decision to prevent this Office from adequately probing these crucial issues. We provide you
with this final opportunity to reconsider. Otherwise, we will proceed with our charging decisions
without giving credit to the advice of counsel defenses that Bank of America has not permitted
us to test.

Please provide us with Bank of America's decision by Monday, September 14,2009.
Feel free to contact me if you have any questions regarding the above request.


Apologies for the quasi-off-topic comment, and hope this helps.

bonddude's picture

eeehhh hummm! Thanks for the warning.

PenGun's picture

 Yours is badly fomatted. The parent is fine. A pox on KDE and Gnome.

Anonymous's picture

Against the wall, BofA will throw Paulson and the Fed to the dogs to the extent possible. May not work, but they'll try it.

Expect a lifelong capitalist executive to let the government destroy him while he keeps his mouth shut? No way.

Anonymous's picture

How about charging the Fed and its members with treason for attempting to destroy a nation's currency?

panda6's picture

Cuomo is just trying to make a name for himself by stoking populist anger so he can move onto bigger and better things.

deadhead's picture

.... "stoking populist anger" is one way to look at it.

another way is "doing his job enforcing existing laws and responding to public anger that is derived from people's outrage that possible crimes have been committed by a small group of financial institutions that have effectively seized control of the USA"

think Thomas Dewey in terms of lineage of NY prosecutors..... 

bonddude's picture

Rudy, Spitzer ... it's a natural. But I do like Cuomo anyway. He's smart.

Veteran's picture

let's hope he moves on to bigger and better things.  America needs people who do not fear sticking it so righteously to The Man.  I hope when he's done with BofA he goes after JPM, then GS, then. . . insert-your-bank-here 

deadhead's picture

chances are very good that he will be the next Governor in NY.

bonddude's picture

10:1 the sitting idiot is gone.

Anonymous's picture


Bubby BankenStein's picture

Very good news.  I hope this is just the first dribble out of a long pipeline.  The sewage must be processed.

Anonymous's picture

ML's bonuses were supposed to be predicated on year-end results, which would've meant nothing. When senior execs found out about this, they accelerated payments to ignore financial results -- results on which the bonuses were supposed to be based. That amounts to THEFT. Someone should get to the bottom of this.


Ducky's picture

I'm with you on this. That is the real issue here. BofA mostly avoided the whole subprime mess. They came in and tried to bottom fish by buying Countrywide before bankruptcy. Buffet was bottom fishing too. The supposedly smart guys bought too early.

The real criminals are the guys that ran Bear, Lehman and the GSE's.

Anonymous's picture

Go-go, Cuomo!

MyKillK's picture

Can anyone explain to me why Ken Lewis is the one on the hot seat here? I thought it was Paulson because he is the one that basically forced the shotgun wedding, and withheld important information regarding the state of ML's assets?

Looks like Ken Lewis is being set up as a classic fall guy and the GS crew gets away clean, as usual.

deadhead's picture

in a nutshell, Lewis did not invoke the mac clause and it is pretty clear that he should have regarding the ml bonus matter as well as the ml losses that came to light during their due diligence. prima facie, big time sec legal violations.

i'm really not sure if paulson broke any laws with his behavior, though something must be wrong if a US treasury sec'y can tell a ceo that he and his board will be replaced if they don't do a deal that is desired by the treasury sec'y. i would like to hear other opinions as to which laws may have been violated by Paulson.

My view at the time of the fiasco which holds true now is that Lewis knew he had a materially adverse change and should inform shareholders. on the other hand, paulson and bernanke are beating him up with the a) previously noted employment threat and b) the whole "the system will crash and freeze up" and that if Lewis doesn't go along with it, the world will end.  I strongly suspect there was some flag waving "ken, don't let america go down" and I suspect some private "don't worry, we'll cover your ass on this one" delivered to lewis from paulson, bernanke.  on that note, i think the sec 33 million settlement was one of the payoffs but they got a little problem now thanks to Judge Rakoff and now NY AG Cuomo.

frankly, lewis was in a tough position and I suspect at least some of his motivation was to "save the system" me naive, but i believe it to be the case. 

bottom line is that a ceo should follow the law and i am of the opinion that lewis blew it in that regard. i also think paulson did threaten lewis and certainly paulson knew about lewis' mac problem but conveniently stayed away from it, at least publicly.

due to Judge Rakoff and now Cuomo, we are likely to get some more details.  this could get very interesting.



Cistercian's picture

 Excellent.At last some sort of what I hope will be a profoundly long list of miscreants being carted off to jail!Thank you Mr. Cuomo!

 It is worth reiterating it is just a beginning.So many more left to incarcerate....

Anonymous's picture

WHY is Cuomo the only elected official merely stating the obvious and going after these crooks??

WHY is our president and Congress not leading the charge into prosecuting these theives??

Art Vandelay's picture

Uh, those are rhetorical questions, right?

Stuart's picture

Madoff, Lewis as well as Sr. SEC staff for their complicity in the fraud.

TheDreadPirateRoberts's picture

I predict Cuomo will soon fall victim to some scandal just like Spitzer. Not that Spitzer was such a great guy. But do you think some mere state governor wannabe will be allowed to get in the way of the largest depository institution in the world in any way that matters?

he'll be bought off or run over.

and all these people who think that lewis or thain had a real choice in the matter, wake and smell the coffee. this deal was about survival. go lynch Bernanke, Paulson and Geithner for your losses.


Anonymous's picture

This smacks of setting a bomb off or setting the can on fire down the block from where the bank's being robbed.

Too many more responsible are barrelling away in the getaway car. Chris Chris Cox, Pandit, Barney Frank, Chris Dodd, Lord Blankfein, and Jamie Dimon to mention only a few.

Stuart's picture

It's an exquisite sense of satisfaction when you pursue someone, methodically, deliberately, who has done harm to you or others and you get them by the balls, squeezing, with no way out. At that moment when they finally realize it too. Checkmate..... POP...POP.