Judge Takes SEC and B.O.A Lawyers to Woodshed Over Merrill Bonus Settlement

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http://www.nakedcapitalism.com/2009/08/judge-takes-sec-and-bank-of-america.html


Rolfe Winkler of Reuters and Louise Story of the New York Times sat in on the hearings on the SEC-Bank of America settlement today. Those who have followed this little drama may recall:

Merrill paid its employees bonuses of $3.6 billion prior to the close of the deal with Bank of America. It was very clear BofA had to have authorized it (if you know anything about deals, it was inconceivable that they hadn't)

Bank of America failed to disclose the bonus payment in the proxy filing for the deal

Judge Jed Rakoff pummeled both sides, with his questions focusing on basic issues;

Who exactly knew what when?

Why were not individuals paying fines? This failure to disclose did not drop from the sky.

Why was the settlement so low? ($33 million versus $3.6 billion)

The New York Times depicted the judge's treatment of both sides as harsh:

During a hearing in New York that was heated at times, the judge was scathing about the settlement, in which the S.E.C. accused Bank of America of misleading its shareholders. Bank of America neither admitted nor denied wrongdoing.

Bank of America and Merrill Lynch, Judge Rakoff said, “effectively lied to their shareholders.” The $3.6 billion in bonuses paid by Merrill as the ailing brokerage giant was taken over by the bank was effectively “from Uncle Sam.”

What is amusing but also annoying is the cluelessness of both sides. I have a bit more sympathy for the SEC, only because from what little I can tell, the agency's staff has been discouraged from taking a tough line in enforcement for a very long time. Under Arthur Levitt (1993-2001), the SEC was keen to go after certain issues (Levitt, ironically, was big on accounting, for instance), but Congress repeatedly threatened to cut the SEC budget to force Levitt to curb his efforts. The SEC during the Bush Administration was hardly a hotbed of aggressive action. It got on the dot bomb bandwagon because it was impossible not to, given Eliot Spitzer's aggressive stance.

The SEC lawyers at least seem to be embarrassed and don't try offering lame defenses. According to Winkler:

The judge wondered immediately why, given the “serious questions” raised in its complaint, the SEC wasn’t going after more facts. If BofA and Merrill conspired to lie to shareholders about bonuses that had been agreed to when the merger was signed, then why isn’t the SEC trying to figure out who is responsible? “Was it some sort of ghost? Who made the decision not to disclose [the bonuses]?” said Rakoff.

The lead lawyer for the SEC meekly replied that they haven’t made any allegations against specific individuals. This clearly didn’t satisfy Rakoff...

So who led the merger negotiations when the discussion of bonuses came up? The SEC offered two names: Greg Curl for BofA and Greg Fleming for Merrill. Of which the SEC says it has only spoken to one: Fleming.

Were details of those negotiations circulated to top management? Yes, Merill CEO John Thain and BofA CEO Ken Lewis were aware of them according to the SEC’s lawyers....

The judge also asked the SEC lawyers about the pathetic size of the settlement ($33 million) relative to the size of the alleged misconduct ($3.6 billion of bonuses paid). SEC lawyer David Rosenfeld seemed badly prepared for this question. He cited the Wachovia/First Union case, saying that $37 million settlement was the right precedent for this case. Again the judge was skeptical, noting it revolved around $500 million worth of misconduct. Here you have $3.6 billion.

But more to the point, Rakoff asked “why isn’t this a grossly unfair amount?” And why is it being collected from the corporation and “not from individuals responsible for orchestrating the misleading [SEC filing]?” Rosenfeld mumbled something about the degree of misconduct, the need for deterrence and finding the closest precedent in their determination that the $33 million figure is “reasonable.”

Now some readers will argue that this is proof that regulation is hopeless, and that misses key issues. First, we did once have effective regulation in the US. There has been an over 30 year effort by corporate interests and those ideologically attuned with their views to neuter regulation, by weakening rules, by undermining regulators' moral authority, by keeping enforcers starved of budget.

This is no different than what happens when staffing is inadequate. You have too many cases spread over too few people. The pressure is to wrap up things quickly and move on. Or you get the other syndrome: extreme multitasking, with nothing done very well and everything taking too long.

And the presumed to be more on-the-ball private sector BofA counsel does not comport himself any better. And remember, BofA is the one who stands to lose here. The tone of the judge's filing denying the settlement and calling for the hearing signaled that he regarded the settlement as inadequate. But is there any sign of real preparation in these interactions? Again, from WInkler:

But according to BofA’s lawyer Lewis Liman, they [Thain and Lewis] apparently weren’t aware of what was in “the disclosure schedule” which would have had details regarding bonuses. That schedule was supposed to be attached to the SEC filing detailing the merger. Conveniently, it wasn’t....

Liman offered some pretty pathetic arguments of his own…
People shouldn’t have been surprised by the Merrill bonuses because the company had already accrued $12 billion for that purpose through Q3.

What do you do with this? Merrill ...wouldn’t have lasted long enough to PAY the bonuses had it not been for bailouts.

He argued that $3.6 billion wasn’t a lot of money. After all it worked out to an average of $91k per recipient.

“I’m glad you think $91k isn’t a lot of money,” retorted the judge...

Liman also trotted out the cliché about bonuses being necessary for “retention.” To this Rakoff responded with the obvious: “how many banks were hiring people when the bonuses were paid?”...

Last Liman argued that no one could have been misled by the bonuses because they weren’t a surprise. He waved his hands in the air suggesting it would be impossible to find anyone, anywhere in the press who didn’t expect Merrill employees to get incentive comp. This is Wall Street(!) he protested.

The judge wasn't buying that either. From Story at the New York Times:

“Do Wall Street people expect to be paid large bonuses in years when their company lost $27 billion?”

Notice that. The attorneys have bought completely into the Wall Street entitlement argument. I genuinely don't think this is posturing; I think BofA counsel believes it and that was a factor in the lack of serous responses.

And why shouldn't they? Those high pay levels form a rising tide that elevates the pay of all professionals serving the high-end financiers They have a vested interest in promoting the idea that these payments were warranted, even from an effectively bankrupt firm when the industry's health was still very poor.

The judge ordered the two sides to reconvene in two weeks. He is also considering holding a separate hearing to determine whether the bonuses were justified.
 
Another reason for modest fines is we are already supporting these banks with taxpayer backing and silly low interest rates to keep them alive, we would be paying these fines with our own money and if the fines were significant in impact to the business survival it would be counter productive to our rescue effort.

The bonus discussion is not well understood and while there is a valid philosophical argument that it rewards risk taking for short term gain, without any claw back if those gains evaporate years later. It appears some individuals do earn and deserve large bonuses. OTOH in years when the organizations are losing money across the board  it seems the number of individuals meriting bonuses should be few.

I think there is plenty of work for the SEC to do with enforcing rules against naked short selling, investigate dark pools, flash trading, etc. Plenty of real work.  The BA takeover of Merrill was during a very stressful time for our economy and while not justifiable some of the behaviors are understandable.

JR
 
The thing that REALLY bothers me is that this whole system is not working.
We have also bailed out banks in the UK but their practices are fundamentally the same as they
ever where.
So at this point, there's no reason why in another 15 years or so, the EXACT same thing could
happen once more !!

It's absolutely outrageous  and just makes my blood boil

Fat cats will always be and act like FAT CATS ....

MM.
 
I feel like the bonus/executive pay is a side show to the main event.

We are still in the middle of the process of re-capitalizing the banks.. The silly low interbank rate is giving them record profits from the interest rate spread. Given some more time and no more disasters they should be able to pay back tarp and be clear of government intervention (assuming they let them go).

It won't be credit derivatives next time but there are always bubbles in free markets when future expectations are out of whack with reality. Extra liquidity adds volatility to these pricing errors. Central banking and fractional reserves are a double edged sword... the extra liquidity it provides helps economies grow faster (good), but the volatility it adds must be watched, (bad) and we haven't been very good at that so far (very bad).

I worry in the US that the FED is not only charged with managing inflation (which is simply money supply vs. economic growth), there is a second mandate to support employment and other similar political agenda.

We should probably be raising interest rates right now to sop up extra liquidity but that would damage already challenged employment levels and housing. While unemployment is as bad as it seems for the folks out of work, this cycle feels like businesses scraped off workers faster and deeper than in past recessions. Productivity a counter cyclical indicator looks remarkably good for this part of the cycle, which means even a modest recovery will lead to hiring to rebuild inventories. Tripling the cash for clunkers budget a bad idea for general principles, is doubly bad since the supply chain probably can't meet the short term demand, but at least they'll be able to sell some less desirable cars.

Regarding "we need to stop the bleeding".. I'm not convinced we have bled the patient enough wrt home prices. They are still higher than they probably should be historically. But the central bankers are absolutely not going to make housing worse in this political environment, so I expect another bubble of sorts in home prices. Or more accurately incomplete deflation of the last bubble.

We are at the point where Bernanke needs to sop up liquidity but in today's fed statement he talks about further expansion of his balance sheet.. so we will see some more false economic updraft, and the fun part is he may get replaced in Jan by someone less disciplined than him to follow his plan to withdraw all the extra money supply before we get rampant inflation (for political reasons).

We have much larger fish to fry than a few bonuses...

JR
 
JohnRoberts said:
Another reason for modest fines is we are already supporting these banks with taxpayer backing and silly low interest rates to keep them alive, we would be paying these fines with our own money and if the fines were significant in impact to the business survival it would be counter productive to our rescue effort.

The bonus discussion is not well understood and while there is a valid philosophical argument that it rewards risk taking for short term gain, without any claw back if those gains evaporate years later. It appears some individuals do earn and deserve large bonuses. OTOH in years when the organizations are losing money across the board  it seems the number of individuals meriting bonuses should be few.

I think there is plenty of work for the SEC to do with enforcing rules against naked short selling, investigate dark pools, flash trading, etc. Plenty of real work.  The BA takeover of Merrill was during a very stressful time for our economy and while not justifiable some of the behaviors are understandable.

JR

The SEC is just a "smoke screen" for these criminals to do what they do best, just look at a small example of Bernie Madeoff scandal....he had a prearranged marriage setup with a distant family relative to someone that worked in the SEC; Do people ever suspect the local minister or rabbi to commit any sort of misdeeds??  Probably not..

Also dont you think the timing of the Eliot Spitzer sex scandal was of any "coincidence"??? :eek: Sure the guy was a scumbag like any egomaniac in power...BUT Spitzer was closing in on all of these scandals and even there are a few articles out there about it

http://www.alternet.org/blogs/peek/132547/was_eliot_spitzer_taken_out_because_he_was_going_to_bust_aig/

The whole damn thing is rigged there is no two party system or some "___IST" system waiting to enslave us....lets just accept the fact and the only fact that our "biases" does not represent reality or as Alfred Korzybski once said "The map is not the territory". 

Nothing more than a bunch of spoiled brat/oligarchs that have lived very well off of the dividends of their families riches for how many generations now??  We are just their little pawns so rest assure they'll be no death camps, blah blah blah....they cant play their little games if it wasnt for us......I hope im not sounding too senseless  ::)


BTW...wouldnt that be something to consider if the bloodlines of these nobles and robberbarons of today go as far back to the days of the pharohs???

They never did come from humble beginnings IMO....
 
I can't respond to the conspiracy angle.. equally impossible to prove or disprove.

Spitzers track record was more smoke than fire where he bullied and intimidated a lot of companies and individuals into high profile settlements that advanced his career toward a govenor or further, an old NYC tradition. Very few of his cases ever went to trial and the ones who did, didn't always turn out so well. Maurice Greenberg from AIG pushed back and had been mostly exonerated, while his company is mostly trashed. The interim management hand picked by Elliot didn't do so good. If they and Spitzer were so sharp why were they left hold the wrong end of all those derivative trades?

One of his higher profile cases was the unseating of Dick Grasso...  He also pushed back and was finally vindicated in court but not after incurring $70 million in court costs, paid by insurance, plus who know how many millions incurred by NY state prosecuting the cases.

Sptizer was a one man black hole for dissipating wealth and ruining businessmen's careers. 

IMO Karma is alive and in evidence here. Elliot did himself in... How arrogant can a lawyer who worked in prosecution be?

JR

PS: Not sure if he is a case for the irony czar or the hypocrisy czar?
 
JohnRoberts said:
IMO Karma is alive and in evidence here. Elliot did himself in... How arrogant can a lawyer who worked in prosecution be?

Bah...dont kid yourself for everyone last one of em are engaged in the same type of activity ;)

I dont buy into the idea of "partisan politics" for the fact those "political rivals" are laughing at all of us for believing their drivel...

Just name one mainstream politician that actually practices what they preach under their "supposed" ideology...

Even if you agree 100% with what someone in particular may say......they're just telling ya what ya want to hear


People such as Ron Paul or (on the opposite side) Cyntihia McKinney would get more air time if the game wasnt rigged....

What is real difference in the ultimate goal of the Oligarchs or the Robberbarons....

The only difference is that one gang will rape you in the privacy of your own home.....and the OTHER gang will rape you in public for everyone to see....

Thats all...or maybe I am just being too darn cynical but we do have "preprogrammed" biases that we need to erase if there is going to be ANY sort of change IMLO :(
 
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