If Judge Jed Rakoff wants a trial, well, then Bank of America is going to defend itself against charges that it failed to adequately disclose upcoming Merrill Lynch bonus payments when it acquired the battered brokerage late last year.
In a filing late Friday, BofA and its counsel at Cleary Gottlieb Steen & Hamilton reiterated the argument they’ve been making since the bank entered into a now-defunct settlement with the Securities and Exchange Commission — that BofA did nothing wrong in keeping the specific bonus information out of proxy statements and other public merger documents. The bank claims its M&A counsel at Wachtell, Lipton, Rosen & Katz followed prevailing custom by detailing the bonus payments in a confidential disclosure schedule and mentioning that disclosure schedule in its public regulatory filings. Those public filings explained that no bonus payments were forthcoming except for those mentioned in the confidential schedule. The SEC claims that is a misleading and material contradiction.
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