With the 2010 gubernatorial election fast approaching, New York Attorney General Andrew Cuomo is not about to let that whole
slap-on-the-wrist settlement between Bank of America Corp. (NYSE:BAC) and the Securities and Exchange Commission slide.
Cuomo's office
sent a letter on Tuesday to BofA's outside representation threatening to file charges over the acquisition of Merrill Lynch & Co., and asking (demanding?) the bank to allow its lawyers to be questioned.
Stripping away the legalese, the letter basically says that Bank of America cannot invoke attorney-client privilege to hide certain information from investigators while also saying it relied on its attorney's legal advice as a justification for each of its failures to disclose material information, including cascading losses and bonus payments.
"It is axiomatic, however, that the attorney-client privilege may not be used as both a sword and a shield," the letter, signed by chief of the state's investor protection bureau David Markowitz, says.
Cuomo's office is giving BofA until Sept. 14 to respond with a decision. The firm responded late in the afternoon Tuesday to a DealBook post with:
Bank of America has not asserted an advice of counsel
defense, and we have cooperated extensively with the NYAG's
investigation consistent with our legal rights.
We have consistently maintained that our proxy statements and
disclosures complied with the law and applicable rules and regulations.
Our company has spent thousands of hours and produced hundreds of
thousands of pages of documents in response to requests from the NYAG's
office.
We have also made our top executives available for interviews on multiple occasions with the NYAG's office.
The facts belie the NYAG's allegations.
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Sara BehunekSee also:
BofA's saga over Merrill bonuses continuesBofA settlement with SEC comes under scrutinyThe quest for the truth from BofA
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