Bank of America’s $2.43 billion settlement over the Merrill Lynch deal should satisfy no one but the lawyers. For shareholders, who were the original victims, it’s another big expense. For the bank, it’s a tacit admission (though not a legal one) that it lied to shareholders. For consumer advocates, it could be seen as nothing stiffer than a good spanking. And good governance supporters are basically being given the finger.
The bank announced Friday that it would settle a class-action suit brought by a number of state and foreign pension funds. The plaintiffs alleged that BofA violated securities law by concealing $16 billion in Merrill losses from shareholders while urging them to approve the deal in a Dec. 5, 2008, vote. BofA and Merrill also had an undisclosed deal allowing Merrill to pay up to $5.8 billion in bonuses to its executives.
Ken Lewis, BofA’s CEO at the time, testified he knew of Merrill’s losses and asked for legal advice on whether he had to disclose them. He said he was told he didn’t.
The bank had several motions struck down, and the case was headed for trial Oct. 22. The plaintiffs would have sought much more – $10 billion to $15 billion, by one estimate – so it made sense for the bank to settle. It closes one big chapter in the company’s legal challenges, at an attractive financial price for the bank. But for a city whose growth was largely fueled by the bank – and for the thousands of workers and leaders who dedicated their lives to building the company and its reputation – the admission that the settlement essentially signals is another punch to the gut.
Despite all that, the plaintiffs who saw so much of their wealth in BofA stock wiped out are hardly made whole, and it’s surprising they agreed to this figure. The ratings agency Fitch issued a statement Friday saying the settlement “is easily manageable” and is “a positive step” for the bank. But the shareholders are essentially paying themselves, minus a chunk for the lawyers.
Ohio Attorney General Mike DeWine touted the settlement as a hefty deterrent to other companies that might conceal relevant information from shareholders. We doubt it. The bank gets off relatively easily. And Lewis and former CFO Joe Price sit happily with their feet up in retirement, not responsible for paying one cent to the shareholders who lost their shirts because of their actions. We doubt any deterrent would be as effective as individuals being held accountable for the harm they caused. Finally, a less-touted provision of the settlement is as outrageous as any of it. BofA agreed to adopt good corporate governance reforms, but only through Jan. 1, 2015. Then it’s free to go back to more squirrely practices. These are policies the bank should have adopted long ago and that it should keep in place. BofA, Dow Jones reports, will commit to majority voting in director elections, annual “say on pay” voting by shareholders, disclosure of noncompliance with stock ownership rules and independence of its compensation committee, among other things. That the bank might drop those common-sense reforms within a couple of years should raise serious doubts for prospective shareholders.
The lawyers are likely to walk away from this with a nine-figure check. For everyone else, it’s an unsatisfying close to a tragic period for Charlotte and its once-leading corporate citizen.