The New York Attorney General’s office today charged Bank of America CEO Ken Lewis with fraud for failing to disclose material details about Merrill Lynch in its merger with the brokerage. The move takes the case one step further than the SEC did: The SEC charged only the bank itself rather than individual corporate officers. Financial services lawyers say there may be more bad news for Lewis down the line.
“The SEC had the opportunity to charge Ken Lewis or other corporate officers, but it ended up just charging the company,” says Brian Rubin, a partner at Washington D.C.-based Sutherland Asbill & Brennan. “The [New York] Attorney General’s office is looking to hold individuals accountable while the SEC may have found that there was no way to tell if one or two people could be held accountable for such decisions.” He says it’s not uncommon for states to take action if they believe the federal regulators have not done enough.
The case, the State of New York v. Bank of America Corporation, Kenneth D. Lewis and Joseph L. Price (former BofA CFO), alleges the defendants intentionally failed to disclose massive losses at Merrill in order to get shareholders to approve the merger. Further, “once the deal was approved, Bank of America’s management manipulated the federal government into saving the deal with billions in taxpayer funds by falsely claiming that they would back out of the deal without bailout funds.”
The statement from the Attorney General’s office names Lewis seven times. “After shareholders approved the deal, Lewis then misled federal regulators by telling them that the bank could not complete the merger without an extraordinary taxpayer bailout due to accelerated losses from Merrill. However, between the time that the shareholders had approved the deal and the time that Lewis sought a taxpayer bailout, Merrill’s actual losses had only increased by another $1.4 billion… As a result of their efforts, Bank of America received more than $20 billion in taxpayer aid. The bank’s management cannot explain why they did not disclose Merrill’s massive losses to shareholders even though the merger with Merrill would have threatened the bank’s very existence if there had been no taxpayer bailout,” it says. Click here to see the complaint filed in the Supreme Court of the State of New York, County of New York.
The Attorney General’s announcement today coincides with the SEC’s announcement about a $150 million settlement with the Bank of America regarding the same issues. So while Bank of America’s troubles with the SEC may have come to a close, it now faces new charges from Andrew Cuomo—and this time, Ken Lewis is front and center facing civil charges of fraud. While the current civil charges seek only monetary relief and an injunction of some sort against Lewis, there may be more bad news for the ex- CEO.
Dan C.GuthrieJr. a white collar defense attorney in Dallas, Texas says there are many instances where the settlement of a civil case may be a precursor to a criminal prosecution. “The fact that the SEC settled the civil matter does not foreclose any sort of criminal action against individuals. It’s not unusual for the U.S. Attorney’s office to step in and proceed on criminal charges,” Guthrie says.
He says the fact that Cuomo is characterizing the actions as fraud puts the target on the individuals in terms of further investigation and accountability. Further, the Office of the Special Inspector General for the Troubled Asset Relief Program put out a statement applauding Cuomo’s decision to go after individual corporate officers. “Attorney General Cuomo’s filing of charges today is a crucial step toward such accountability. Today begins the process of holding Ken Lewis, Joseph Price and the Bank of America accountable for their role in the fraud alleged today,” Inspector General, Neil M. Barofsky said.
As Guthrie puts it, “This could be extremely serious for Ken Lewis.”