Cuomo Weighs In On B of A/Attorney-Client Privilege Issue
New York State Attorney General Andrew Cuomo sent a letter today to Bank of America counsel Lewis Liman of Cleary Gottlieb Steen & Hamilton regarding his “ongoing investigation” of B of A’s merger with Merrill Lynch. Cuomo wrote that his office is “at the stage in our investigation in which we are making charging decisions with respect to Bank of America and its executives.”
He then stated that B of A’s “indiscriminate invocation of the attorney-client privilege” was hindering his office's ability to decide “what charges, if any, to bring and whether individual Bank of America officers should be charged.” The gist of the letter then followed: “We cannot simply accept Bank of America's officers' naked assertions that they sought and relied on advice of counsel in good faith, and that, therefore, they should not be charged. Accordingly, we request that Bank of America reconsider its decision to prevent this Office from adequately probing these crucial Issues.”
Cuomo’s letter mentioned “at least four instances in the fourth quarter of 2008 where Bank of America and its senior officers failed to disclose material non-public information to its shareholders.” These subjects include, according to Cuomo’s letter, accelerated bonus payments – and, as we all know, bonus payments have been at issue in the SEC’s attempted settlement with B of A.
Stay tuned....
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