New York Attorney General Andrew Cuomo is considering filing charges against Bank of America (NYSE:BAC) senior executives over the disclosure of details regarding bonuses the bank authorized to Merrill Lynch employees before the company’s merger, according to a letter released Tuesday by Cuomo’s Office.
NY’s AG accuses BofA executives of indiscriminately using the invocation of attorney-client privileges to impede his office’s investigation, and using that technicality as a way to prevent the release of material information about who authorized the payment of Merrill’s $5.8 billion in bonuses.
In a letter to the bank’s outside counsel, Cleary Gottlieb Steen & Hamilton LLP, Mr. Cuomo said he could not accept the executives’ “naked assertions that they relied on advise of counsel in good faith” and therefore should not be charged. He argues that his investigation has found at least four instances in Q4 of 2008 where Bank of America and its execs failed to disclose material non-public information to its shareholders. According to Cuomo, Bank of America must reconsider its decision to prevent his Office from “adequately probing these crucial” and gave the firm until Sept 14 to provide more information, or else individual officers might be charged.
Bank of America’s response [via Dealbook]
Bank of America has not asserted an advice of counsel defense, and we have cooperated extensively with the NYAG’s investigation consistent with our legal rights.
We have consistently maintained that our proxy statements and disclosures complied with the law and applicable rules and regulations.
Our company has spent thousands of hours and produced hundreds of thousands of pages of documents in response to requests from the NYAG’s office.
We have also made our top executives available for interviews on multiple occasions with the NYAG’s office.
The facts belie the NYAG’s allegations.
More from Cuomo’s letter to BofA Outside Counsel:
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