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At BofA, Moynihan Grapples With Past


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At BofA, Moynihan Grapples With Past

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Bank of America Corp. CEO Brian Moynihan is being dragged back to the past once again.

The 52-year-old chief executive is expected to be deposed in coming months in as many as three civil lawsuits over the bank's handling of its takeover of securities firm Merrill Lynch & Co. on Jan. 1, 2009.

The pending appearances are the latest legal distraction for a CEO trying to shed the wreckage he inherited from the financial crisis. The suits accuse the bank, the second-largest U.S. lender by assets behind J.P. Morgan Chase & Co., and its officers of misleading shareholders about ballooning losses at Merrill before the $19.4 billion acquisition was approved.

It isn't clear what Mr. Moynihan will be asked, but the inquiries likely will center on disclosure of losses at Merrill and the decision to award Merrill employees billions of dollars in bonuses, said a person familiar with the bank's preparations.


The coming depositions are the first for Mr. Moynihan since he succeeded Kenneth Lewis, the architect of the Merrill deal, as CEO. Mr. Moynihan led the transition for the bank after the merger announcement. Mr. Lewis also is expected to be deposed in the three cases, according to people familiar with the situation. Bank of America declined to comment.

Two separate cases pending in the Southern District of New York and Delaware Chancery Court accuse the bank or its officers of failing to tell shareholders about big losses at Merrill ahead of the deal's closing. The New York Attorney General's Office is pursuing a separate civil-fraud suit that began under former Attorney General Andrew Cuomo.

The Charlotte, N.C., lender hasn't argued that Mr. Moynihan should be exempt from discussing the Merrill situation under oath, but it has asked that the testimony be limited to one day per deposition and that all questions stick to issues relevant to the litigation, said people familiar with the situation.

Depositions taken from Mr. Lewis when he was still CEO became a major distraction as the bank hobbled in the wake of the financial crisis, and the legal scrutiny contributed to Mr. Lewis's decision to step down at the end of 2009.

The testimony threatens to drag out a painful period for a bank still weighed down by the decisions it made during the run-up to the financial crisis. It also could expose the current CEO to more embarrassing questions about how the firm acted during a tumultuous period that nearly cost Mr. Moynihan his job.

Mr. Moynihan was head of investment banking when Mr. Lewis decided over one weekend in September 2008 to purchase Merrill, the venerable Wall Street securities firm that was on the verge of a funding crisis when Bank of America announced its plan to purchase the company. Mr. Moynihan was put in charge of the transition but looked to be out of a permanent job after turning down an offer to run the bank's credit-card division from Wilmington, Del. Mr. Lewis told his board in early December 2008 that Mr. Moynihan would be leaving the company.

The CEO reversed himself when he appointed Mr. Moynihan as the firm's top lawyer and fired general counsel Timothy Mayopolous. Mr. Moynihan then became part of the team that secretly negotiated an extra injection of U.S. aid designed to absorb Merrill's losses.

Other bank CEOs, such as J.P. Morgan Chase Chief Executive James Dimon, also have given depositions since the 2008 financial crisis. But it still is unusual for a sitting CEO to provide such testimony unless that executive has "unique personal knowledge" about the events at issue, said Jill Goldsmith, a Phoenix attorney who represents corporations in civil litigation.

The shares of Bank of America and other big U.S. banks have been under pressure for the last year amid concerns about how much it will take to settle all scores stemming from the financial crisis.

"Litigation expenses over the next year will be higher than anybody expects and that will be a drag on earnings," said Paul Miller of FBR Capital Markets.

One legal hang-up could get resolved soon if state and federal officials are able to reach a multibillion-dollar agreement with five of the nation's largest banks over past foreclosure practices. But even with a resolution of the federal and state probes, several legal questions remain unresolved that could help determine the banks' ultimate legal costs. One issue is whether mortgage investors or insurers can blame banks for losing their money or whether banks can attribute losses to the housing bust.

A recent ruling in a case involving the Countrywide Financial mortgage business that Bank of America purchased in 2008 could make it more difficult for banks to defend their position. In a fraud case brought by bond insurer MBIA Inc., New York Supreme Court Justice Eileen Bransten said MBIA doesn't have to prove a correlation between allegedly fraudulent statements made by Countrywide and the payments made on the insurance policies provided by MBIA.


The decision could make MBIA's fraud case easier to prove. But the ruling wasn't a total wash for Bank of America, as the judge denied an attempt by the insurer to get a ruling that would have allowed it to pursue claims against performing mortgage bonds. MBIA also still must prove any allegedly fraudulent statements Countrywide made actually induced it to sign the insurance agreement.


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