New York State Attorney General Andrew Cuomo's letter to the SEC and Senate Banking Committee on the Bank of America, Merrill Lynch Merger provides strong evidence of coercion to commit securities fraud by former Treasury Secretary Paulson and Fed Chairman Ben Bernanke, and actual securities fraud by Bank of America CEO Kenneth D. Lewis.
At issue is Lewis's decision to back away from the merger deal with Merrill Lynch on a MAC (material adverse change) clause because of rapidly deteriorating conditions at Merrill Lynch. Here are a few pertinent snips from Cuomo's letter.
Immediately after learning on December 14, 2008 of what Lewis described as the "staggering amount of deterioration" at Merrill Lynch, Lewis conferred with counsel to determine if Bank of America had grounds to rescind the merger agreement by using a clause that allowed Bank of America to exit the deal if a material adverse event ("MAC") occurred. After a series of internal consultations and consultations with counsel, on December 17, 2008, Lewis informed then-Treasury Secretary Henry Paulson that Bank of America was seriously considering invoking the MAC clause. Paulson asked Lewis to come to Washington that evening to discuss the matter.Coercion To Commit Securities Fraud
At a meeting that evening Secretary Paulson, Federal Reserve Chairman Ben Bernanke, Lewis, Bank of America's CFO, and other officials discussed the issues surrounding invocation of the MAC clause by Bank of America. The Federal officials asked Bank of America not to invoke the MAC until there was further consultation. There were follow-up calls with various Treasury and Federal Reserve officials, including with Treasury Secretary Paulson and Chairman Bernanke. During those meetings, the federal government officials pressured Bank of America not to seek to rescind the merger agreement. We do not yet have a complete picture of the Federal Reserve's role in these matters because the Federal Reserve has invoked the bank examination privilege.
Bank of America's attempt to exit the merger came to a halt on December 21, 2008. That day, Lewis informed Secretary Paulson that Bank of America still wanted to exit the merger agreement. According to Lewis, Secretary Paulson then advised Lewis that, if Bank of America invoked the MAC, its management and Board would be replaced.
In an interview with this Office, Secretary Paulson largely corroborated Lewis's account. On the issue of terminating management and the Board, Secretary Paulson indicated that he told Lewis that if Bank of America were to back out of the Merrill Lynch deal, the government either could or would remove the Board and management.
Secretary Paulson's threat swayed Lewis. According to Secretary Paulson, after he stated that the management and the Board could be removed, Lewis replied, "that makes it simple. Let's deescalate." Lewis admits that Secretary Paulson's threat changed his mind about invoking that MAC clause and terminating the deal.
It's crystal clear from the letter that a strong case can be made that Paulson and Bernanke coerced Lewis to carry out a merger agreement that was not in Bank of America's shareholders best interest. Lewis arguably did so only to save his own job and the board.
Flashback Monday, September 15, 2008
I called this correctly at the time. Please consider Market Votes "No Confidence" In Merrill, Bank of America Merger.
“There was no pressure from regulators, absolutely no pressure,” said Mr Lewis, who described the deal as “the strategic opportunity of a lifetime”. He said: “The first contact came on Saturday morning and we put the transaction together in 48 hours. The instant we talked it made sense.”And so it was, the relatively strong was coerced to buy the pathetically weak.
My Translation: "The pressure from the Fed was enormous. Anyone in their right mind knows this deal makes no sense to Bank of America".
The moral of this story is: The strong swallow the weak until the strong become weak.
I suspect Lewis he will be forced out as CEO whether he is indicted or not. Certainly he deserves to go. The more serious issue is the appearance of coercion by Paulson and Bernanke.
Please note that Cuomo's letter states "In an interview with this Office, Secretary Paulson largely corroborated Lewis's account. "
As far as I am concerned, Paulson just pleaded guilty. I do not care what Paulson's reasons were, no one is above the law.
Let the criminal indictments begin: Paulson, Bernanke, and Lewis.
Mike "Mish" Shedlock
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