By Jonathan Stempel
NEW YORK, March 11 (Reuters) - Merrill Lynch & Co may have misled Congress in representing last November that it planned to pay out bonuses at year end, when in fact it decided to accelerate those payouts, New York Attorney General Andrew Cuomo said on Wednesday.
The attorney general also said Merrill traders may have delayed taking hefty losses late last year until after the company decided to pay out $3.62 billion of overall bonuses.
He also again rejected the attempt by Bank of America Corp , which bought Merrill on Jan. 1, to keep the names of bonus recipients confidential, after the bank's Chief Executive Kenneth Lewis said he had never in 40 years of banking demanded confidentiality.
The allegations were made in filings with the New York State Supreme Court in Manhattan, two days before Justice Bernard Fried is expected to hold a hearing on whether to keep bonus details private.
Bank of America spokesman Scott Silvestri said the Charlotte, North Carolina-based bank has continually offered to provide Cuomo with information on Merrill bonuses 'subject to reasonable confidentiality.'
The bank has previously said it would suffer 'grave harm' in agreeing to all of Cuomo's demands, citing concerns about competitors poaching staff and privacy.
Cuomo is examining whether the bonuses violated securities laws, and whether Bank of America should have disclosed more about Merrill's condition sooner.
MERRILL 'MISLEADING,' CUOMO SAYS
According to Wednesday's filings, John Finnegan, a Merrill director and chairman of its compensation committee, said at a March 3 deposition he did not remember any resistance to a proposal by Chief Executive John Thain at a Nov. 11 meeting to paying out bonuses before year end.
Cuomo said it was thus 'misleading' for Merrill to tell Congress in late November that it planned to make incentive compensation decisions at year end. He said Merrill had made a similar misleading representation to his office on Nov. 5.
Merrill had, in previous years, traditionally waited until after the new year to award bonuses.
The attorney general also said Merrill learned less than a week after setting bonuses on Dec. 8 that it would suffer $7 billion of additional quarterly losses, on top of $8 billion it already expected. By delaying losses, traders could make their results prior to the awarding of bonuses look better.
'It appears that some of these losses may have been booked by Merrill employees who marked down their portfolios only after their 2008 bonuses were set,' Cuomo said.
Merrill ultimately lost $15.84 billion in the quarter.
Bank of America on Jan. 16 got a federal bailout that included $20 billion of capital from the Troubled Asset Relief Program, and a government agreement to share losses on $118 billion of assets, mostly from Merrill. The bank has taken $45 billion overall from TARP.
CUOMO SAYS CONFIDENTIALITY DEMAND IS NEW
Cuomo also said that neither Lewis nor Thain in depositions last month could recall any time in their seven decades of banking combined when compensation had to stay confidential.
'Have you ever given anyone instruction to keep their compensation confidential?' Eric Corngold, a lawyer in Cuomo's office, asked Lewis in a Feb. 26 deposition.
'No,' Lewis responded.
'In the 40 years that you have been at Bank of America?'
'Not that I recall.'
Cuomo and Rep. Barney Frank, who chairs the U.S. House of Representatives Financial Services Committee, on Monday demanded information on all people who received more than $1 million in bonuses at both Bank of America and Merrill.
Bank of America shares closed Wednesday up 14 cents at $4.93. They have fallen 85 percent since the Merrill acquisition was announced last Sept. 15.
The case is Cuomo v. Thain, New York State Supreme Court (Manhattan), No. 400381/2009.
(Reporting by Jonathan Stempel; Editing by Tim Dobbyn) Keywords: BANKOFAMERICA/MERRILL BONUSES (jon.stempel@thomsonreuters.com +1 646 223 6317; Reuters Messaging: jon.stempel.reuters.com@reuters.net) COPYRIGHT Copyright Thomson Reuters 2009. All rights reserved. The copying, republication or redistribution of Reuters News Content, including by framing or similar means, is expressly prohibited without the prior written consent of Thomson Reuters.
NEW YORK, March 11 (Reuters) - Merrill Lynch & Co may have misled Congress in representing last November that it planned to pay out bonuses at year end, when in fact it decided to accelerate those payouts, New York Attorney General Andrew Cuomo said on Wednesday.
The attorney general also said Merrill traders may have delayed taking hefty losses late last year until after the company decided to pay out $3.62 billion of overall bonuses.
He also again rejected the attempt by Bank of America Corp , which bought Merrill on Jan. 1, to keep the names of bonus recipients confidential, after the bank's Chief Executive Kenneth Lewis said he had never in 40 years of banking demanded confidentiality.
The allegations were made in filings with the New York State Supreme Court in Manhattan, two days before Justice Bernard Fried is expected to hold a hearing on whether to keep bonus details private.
Bank of America spokesman Scott Silvestri said the Charlotte, North Carolina-based bank has continually offered to provide Cuomo with information on Merrill bonuses 'subject to reasonable confidentiality.'
The bank has previously said it would suffer 'grave harm' in agreeing to all of Cuomo's demands, citing concerns about competitors poaching staff and privacy.
Cuomo is examining whether the bonuses violated securities laws, and whether Bank of America should have disclosed more about Merrill's condition sooner.
MERRILL 'MISLEADING,' CUOMO SAYS
According to Wednesday's filings, John Finnegan, a Merrill director and chairman of its compensation committee, said at a March 3 deposition he did not remember any resistance to a proposal by Chief Executive John Thain at a Nov. 11 meeting to paying out bonuses before year end.
Cuomo said it was thus 'misleading' for Merrill to tell Congress in late November that it planned to make incentive compensation decisions at year end. He said Merrill had made a similar misleading representation to his office on Nov. 5.
Merrill had, in previous years, traditionally waited until after the new year to award bonuses.
The attorney general also said Merrill learned less than a week after setting bonuses on Dec. 8 that it would suffer $7 billion of additional quarterly losses, on top of $8 billion it already expected. By delaying losses, traders could make their results prior to the awarding of bonuses look better.
'It appears that some of these losses may have been booked by Merrill employees who marked down their portfolios only after their 2008 bonuses were set,' Cuomo said.
Merrill ultimately lost $15.84 billion in the quarter.
Bank of America on Jan. 16 got a federal bailout that included $20 billion of capital from the Troubled Asset Relief Program, and a government agreement to share losses on $118 billion of assets, mostly from Merrill. The bank has taken $45 billion overall from TARP.
CUOMO SAYS CONFIDENTIALITY DEMAND IS NEW
Cuomo also said that neither Lewis nor Thain in depositions last month could recall any time in their seven decades of banking combined when compensation had to stay confidential.
'Have you ever given anyone instruction to keep their compensation confidential?' Eric Corngold, a lawyer in Cuomo's office, asked Lewis in a Feb. 26 deposition.
'No,' Lewis responded.
'In the 40 years that you have been at Bank of America?'
'Not that I recall.'
Cuomo and Rep. Barney Frank, who chairs the U.S. House of Representatives Financial Services Committee, on Monday demanded information on all people who received more than $1 million in bonuses at both Bank of America and Merrill.
Bank of America shares closed Wednesday up 14 cents at $4.93. They have fallen 85 percent since the Merrill acquisition was announced last Sept. 15.
The case is Cuomo v. Thain, New York State Supreme Court (Manhattan), No. 400381/2009.
(Reporting by Jonathan Stempel; Editing by Tim Dobbyn) Keywords: BANKOFAMERICA/MERRILL BONUSES (jon.stempel@thomsonreuters.com +1 646 223 6317; Reuters Messaging: jon.stempel.reuters.com@reuters.net) COPYRIGHT Copyright Thomson Reuters 2009. All rights reserved. The copying, republication or redistribution of Reuters News Content, including by framing or similar means, is expressly prohibited without the prior written consent of Thomson Reuters.