Bank of America, advised by Wilmer Cutler Pickering Hale and Dorr, did not meet a Monday deadline to turn over documents related to its merger with Merrill Lynch to the House Committee on Oversight and Government Reform, according to a source at BofA familiar with the matter.
Reginald Brown, co-head of WilmerHale's Public Policy and Strategy Group, is leading a WilmerHale team advising BofA on its dealings with the committee and its chair, Rep. Edolphus Towns of New York, according to sources familiar with the matter. Brown declined to comment when reached by The Am Law Daily. The bank retained Wilmer in the spring to deal with a congressional probe into various aspects of the Merrill merger.
Towns gave the bank until noon Monday to turn over documents related to legal discussions BofA had with outside counsel before and after it absorbed Merrill Lynch in Dec. 2008, according to several letters between the committee and the bank, which you can view here. The bank resisted, saying the documents are protected by attorney-client privilege between bank executives and the law firm that handled the merger for BofA -- Wachtell, Lipton, Rosen & Katz.
As we've written extensively, the privilege issue is at the center of two other probes of the BofA-Merrill merger. New York Attorney General Andrew Cuomo has urged BofA to drop is privilege claims as part of his office's investigation into the merger and the bank's alleged failure to disclose relevant information to shareholders. Meanwhile, Judge Jed Rakoff of federal trial court in Manhattan has voided a $33 million settlement between BofA and the Securities and Exchange Commission, in part because the SEC pointed the finger at Wachtell and Shearman & Sterling (Merrill's M&A counsel) in explaining why the bank allegedly failed to disclose the fact that it would allow Merrill to pay billions in bonuses. Cleary Gottlieb Steen & Hamilton partner Lewis Liman is advising the bank in the Rakoff and Cuomo matters. (The bank says it did not violate disclosure rules. See this piece by our colleague Susan Beck in the October issue of The American Lawyer for more information on the bonus flap.)
In a letter Brown and the bank sent Towns over the weekend, Brown cites a 2002 decision from the U.S. District Court in the District of Columbia in which Judge Gladys Kessler ruled that a company may waive attorney-client privilege in other venues if it does so voluntarily -- or even, in some circumstances, under subpoena -- before a congressional committee. In other words, the bank is worried that following Towns's instructions would amount to waiving privilege in Rakoff's courtroom and in Cuomo's office, giving the judge and the attorney general access to thousands of pages of formerly privileged documents.
We reached out to a committee spokeswoman to see how the committee would proceed. We haven't heard back yet.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.
