In short, in the process of acquiring Merrill, the Bank’s management misled its shareholders, the public, its board and its lawyers by concealing Merrill’s disastrous fourth quarter financial results in order to secure the shareholders’ uninformed approval of the deal. The Bank’s management then salvaged this potentially crippling situation by extracting billions in taxpayer bailouts by misleading the federal government. They did this, in part, by threatening federal officials that they would terminate the Merger Agreement based on a material adverse change—virtually the same material change they failed to disclosed to their shareholders prior to the vote. This action seeks redress under New York’s Martin Act for this conduct. - Andrew Cuomo
Andrew Cuomo To File Civil Securities Fraud Charges Against Ken Lewis and BofA CFO Joe Price Even As The SEC Proves Its Incompetence Yet AgainSubmitted by Tyler Durden on 02/04/2010 12:22 -0400
NY AG Andrew Cuomo just announced he would file civil securities fraud charges against BofA ex-CEO Ken Lewis and CFO Joe Price under New York's Martin Act. This blow to Ken Lewis follows hot on the heels of yet another attempt by the ever pathetic and worthless SEC to cover up the whole Merrill mess, this time by proposing yet another settlement with BofA, however instead $30 million this time taxpayers will pay BofA investors $150 million. The fact that there is no change in the SEC's M.O. from before, but merely an increase in the "booty", is sure to anger Judge Rakoff even more. The need for a referendum over the fitness of Mary Schapiro to serve her job as head of the SEC in light of these two diametrically opposing actions is now greater than ever.
In a developing story reported by the AP, Cuomo has allegedly subpoenaed five relevant Bank Of America directors who had presumably been briefed on actions taken by the bank in its Merrill merger prior to the public disclosure, and is seeking their sworn testimony.
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.
- From The Office Of NY Attorney General, Andrew Cuomo
Some serious fireworks go off as Clearly Gottlieb clutches at straws to make Lewis, from merely Patron Saint of Taxpayer Funded, No MAC Clause Invoking Acquisitions of Bankrupt Companies, into Saint Ken, Martyr of The Dispossed Investor.
"We are at this stage in our investigation in which we are making charging decisions with respect to Bank of America and its executives."
How poetic would it be if Madoff and Ken share a jailcell?