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Cuomo detailed the size and scope of the bonuses in a letter sent to U.S. House Financial Services Chairman Barney Frank.
“In a surprising fit of corporate irresponsibility, it appears that, instead of disclosing their bonus plans in a transparent way as requested by my office, Merrill Lynch secretly moved up the planned date to allocate bonuses and then richly rewarded their failed executives,” Cuomo stated. In the letter, Cuomo said he requested information on Merrill’s expected bonuses as early as Oct. 29, but never received any details about the size of the bonus pool and criteria it planned to use to make the payments.
The Merrill bonuses were paid in late December, just days before Bank of America Corp. completed its purchase of New York-based Merrill. The payments also came as Merrill was on the brink of reporting a more than $15 billion fourth-quarter loss as it has been among the hardest hit by the ongoing credit crisis.
Cuomo said in the letter that Bank of America was apparently complicit in the move to award bonuses before Merrill’s fourth quarter loss was announced.
Both Merrill and Bank of America could face charges of securities fraud in New York as the attorney general’s office investigation unfolds, according to a person familiar with the investigation who requested anonymity because of the ongoing nature of the matter. The person said Cuomo’s office is attempting to determine if proper disclosures were provided to investors about the timing and size of the bonuses as well as the “deteriorating health of Merrill.”
Christopher Bebel, a former federal prosecutor and Securities and Exchange Commission attorney, said the New York attorney general’s office could try to make its case by proving it was necessary for disclosures to be provided because of the abnormal timing of the payments.
“Because (former Merrill Chief Executive John) Thain intended to depart so radically from the well established pattern of bonus payouts, Merrill had an obligation to disclose (the information) to investors, given the enormous amount of money at stake,” Bebel said. Banks traditionally pay out year-end bonuses during the first quarter of the following year.
Bebel said Merrill and Thain’s defense against that claim would likely be to say the company was given the right to make bonus payments as part of the acquisition, and it had no choice but to pay them in late December because Merrill would cease to exist as a stand alone firm beginning Jan. 1.
Bank of America spokesman Scott Silvestri said in a statement that Merrill Lynch was an independent company last year, and its board of directors had ultimate approval over how much to pay employees.
Silvestri said: “Bank of America did urge the bonuses be reduced, including those at the high end. Although we had a right of consultation, it was their ultimate decision to make. In addition, a substantial amount of the Merrill bonuses were contractually guaranteed.”
Bank of America’s Chief Executive Ken Lewis reiterated that stance when questioned about the Merrill bonuses during Congressional testimony Wednesday, saying he had “very limited” involvement in the decision making regarding the payouts.
Lewis said: “And we had no authority to tell them what to do to. Just urge them what to do. We did urge.”
Lewis testified before a Congressional committee along with other banking executives whose firms have received funds from the government.
Cuomo in the letter said four executives at Merrill alone received bonuses totaling $121 million. Nearly 700 employees received a bonus of at least $1 million. The letter did not disclose names of the bonus recipients.
Thain did not take home a 2008 bonus, nor did four other top executives at Merrill: its president and chief operating officer, its president of global wealth management, its chief financial officer and its general counsel.
On the other hand, Bank of America severely slashed its 2008 year-end bonuses. Bank of America’s top executives received no incentive compensation in 2008, and the next level of executives bonus pool was reduced by 80 percent, Silvestri said.
Cuomo has already subpoenaed Thain and Bank of America’s chief administrative officer, J. Steele Alphin, as he investigates the timing of the bonuses. Cuomo is likely to seek testimony from other executives at the banks, according to the letter.
North Carolina’s Attorney General Roy Cooper also has made a request for documents from Bank of America about the bonuses. The state’s Department of Justice last week issued an “investigative demand” seeking records, including a list of Merrill employees who received bonuses. Bank of America, based in Charlotte, N.C., is required to respond by March 4, according to the 11-page demand.
Last month, when news of the bonuses broke, Thain resigned from his new post as head of the wealth management division of the combined bank.
The initial reports of the bonuses came just days after Bank of America received an additional $20 billion from the government that it said it needed to help offset the losses it was absorbing from the Merrill acquisition. The government also promised to cover losses on more than $100 billion in risky assets. The additional support was provided to Bank of America as Lewis showed trepidation about completing the deal to acquire Merrill.
The government helped orchestrate the acquisition of Merrill by Bank of America over the same weekend in September that another investment bank, Lehman Brothers, went under, setting off the most intense period of the financial crisis.
Copyright 2009 The Associated Press.
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