At least one group of plaintiffs lawyers is testing whether Bank of America’s waiver of attorney-client privilege in the Merrill Lynch flap might apply to shareholder suits against BofA related to the bank’s merger with Merrill last year.
To review: Federal and state officials have been investigating whether BofA violated various disclosure laws in the merger, especially in the bank’s alleged failure to disclose that Merrill would be paying up to $5.8 billion in bonuses. (The bank has denied wrongdoing.) The bank initially declined to answer specific questions about its knowledge of Merrill’s books, claiming that to do so would violate attorney-client privilege, according to court documents filed by the Securities and Exchange Commission. Federal and state officials pressured BofA to waive attorney-client privilege, and the bank eventually agreed to do so last month. As we’ve reported, the bank intended the waiver to be limited. It would apply only to the SEC’s case against it in federal court in New York and to pending investigations from New York Attorney General Andrew Cuomo and a congressional committee. The protective order explaining the waiver explicitly said that plaintiffs lawyers suing BofA would not automatically gain access to whatever privileged documents BofA turned over to the SEC and Cuomo; the privilege waiver didn’t extend to other cases, the order said.
