Yesterday, Bank of America fired off one of their biggest settlements yet, spending $2.4 billion to quiet claims with investors over their purchase of Merrill Lynch.
As Lehman Brothers failed in September 2008, Bank of America agreed to buy Merrill Lynch. But in the weeks after that agreement, the bank tried unsuccessfully to scrap the deal. Merrill Lynch generated more than $15 billion of losses and its executives agreed to award employees up to $5.8 billion of bonuses.
Bank of America’s shareholders voted to approve the deal in December 2008. After the merger closed, Bank of America shares fell sharply, and investors sued, saying Merrill’s losses and bonuses should have been disclosed before the vote.
Bank of America denied the lawsuit’s allegations, but CEO Brian Moynihan said the bank agreed to settle to remove uncertainty and put the case behind it.
This was outright securities fraud, and I’m more than surprised that the investors plaintiffs, led by public pension funds in Ohio and Texas, accepted this. BofA clearly withheld information from their shareholders that caused a material loss; the stock is down 2/3 since the Merrill deal, even while the bank returned to profitability (though not this quarter, as we’ll see). But the investors had little leverage. The SEC should have been all over this, but they settled over the acquisition in 2009, in a settlement so bad that the judge made them rework it. In the end, the SEC got just $150 million for their settlement, and the fact that the investors got 16 times as much should truly embarrass them.
Incidentally, Ken Lewis was specifically sued in this case and would have been personally liable for withholding information, but BofA will cover his costs in the settlement, so he won’t have to pay a dime.
This is just the latest in a long line of settlements BofA has managed to negotiate over a string of fraudulent and abusive activity since 2009. In all, BofA has paid out over $29 billion, including the $11.8 billion in cash penalties and “credits” from the foreclosure fraud settlement. The other big number included in that, the $8.5 billion settlement with mortgage backed securities holders for repurchases, hasn’t been finalized yet. But it’s clear that Bank of America has become a waystation for abused parties to take out settlement money, rather than a lender allocating capital efficiently. And of course, given the inadequacy of these settlements, the real cost of Bank of America’s practices in the economy are much, much higher.
In fact, between this settlement, some tax charges and litigation expenses (none of that $29 billion includes legal fees), BofA expects to book a loss for the third quarter, years after the end of the financial crisis. While Merrill Lynch at least provided investment banking revenue, that acquisition and the Countrywide acquisition have been extremely problematic for the bank. Countrywide in particular has been the main cause for a loss in BofA’s mortgage business of $35 billion.
If it weren’t for a massive sell-off of assets and a government lifeline, there would not be a Bank of America today. And policymakers should ask themselves why they propped up a zombie bank so it could pay off its legal exposure and not much else.




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Wonder if AIG, brought to you by your tax dollars, covered the corporate malfeasance at BofA.
News of the settlement aside, you hint at the bigger picture:
I’m no expert, but I watched enthralled as the U.S. economy came tumbling down in Sept. 2008. BofA buying Merrill was part of the solution the Oligarchs (U.S. Fed gov’t) came up with. That, I think, is the answer to your ‘why’ question, and, according to a NY Times blog on the issue, how BofA may decide to defend itself in a final piece of litigation still pending, violation of NY state securities law, brought by then NY Attny Genl Andrew M. Cuomo:
http://dealbook.nytimes.com/2012/09/28/the-cost-of-putting-the-merrill-lynch-merger-behind-it/
It’s all just esoteric building blocks following the 2008 crash. Court cases that are settled don’t change anything. We can plainly see that this settlement suggests accountability, but it is just an illusion. In settlements there is no admission of guilt or responsibility. The conditions that led to the court case remain unchanged.
You are right..it’s policy makers who must be held accountable. Policy makers must make changes…federal financial laws/regulations have to change…bring back Glass-Steagall, etc. Financial deregulation since the 1990′s brought us the 2008 collapse. BofA is merely a player.
All these settlements and not one indictment. Sad.
Don’t tell me, let me guess:
The relevant phrasing is: “Total indemnification from any liability forever and ever and ever, Amen.”
Did I win?
F-n criminals.
So if Lewis ends up owing, and BOA pays for him, I wonder would the IRS consider that “imputed” income for Lewis? If so maybe BOA would pay the subsequent taxes on that? Quite a headache no doubt.
Maybe he wishes he had told Paulson & Co to pack sand back then.
Your economic and financial posts are always a welcomed read, both here and at naked capitalism.
Thanks.
Book Salon is up with Anat Shenker Osorio’s Don’t Buy It: The Trouble With Talking Nonsense About the Economy hosted by spocko
If this whole mess weren’t so stomach churning, sphincter shrinkingly outrageous, it would make a person cry.
It’s gotten to the point that the magnitude of the crimes and the infinitesimally small chance of justice being served that it has made everyone numb and past all rage.
There is another side of this to be considered. In order to cut its costs of doing business and improve its outlook, BoA has laid off quite a number of people. The trouble is, there is no one left to do the actual work of the bank.
I decided to bite the bullet a couple of months ago and do a Deed-In-Lieu of Foreclosure, and just get on with life. A very nice woman in the BoA Customer Service Department offered me a Lease-for-Deed opportunity to allow me to stay in the house and figure out my next moves. I agreed, and we began the process. She warned me that the foreclosure process would continue, but that the DIL should be executed well before any foreclosure sale took place.
Guess what? My house is up for foreclosure sale next Tuesday, despite the fact that everything else has finally been approved (we are just waiting on the final documents to sign). Bank of America cannot seem to get its ducks in a row. No one seems to know who to contact there to pull the sale down, which means that I am headed for court on Monday to get an injunction to stop the sale.
I went by my local branch office of BoA a couple of days ago to make a deposit, and they appeared to be terribly short-handed!
Enough already!
Why are you still using this bank?
Actually, I have an account at another bank that is my primary one… I am finalizing some other matters that were using my BoA account and I just don’t want the hassle of all the paperwork. About 2 more months and I am done with BoA!
These kinds of settlement deals are garbage anyway. They’re just a transfer from current shareholders to previous shareholders at best, and a transfer from oneself to oneself at worst. The corporate officers and directors aren’t penalized really at all, so the size of the penalty is rather irrelevant unfortunately.
Yes, sad. It leads one to believe that this bank is protected, or immune. Now how can that be unless they are the government, acting for the government? Covert even? What?