The first batch of formerly confidential papers has been filed with Judge Jed Rakoff in the SEC’s case against Bank of America, and the papers — mostly records of depositions — show that Wachtell, Lipton, Rosen & Katz and BofA agreed fairly quickly on disclosure issues related to Merrill Lynch’s fourth-quarter 2008 losses.
This set of papers — more than 1,000 pages in all — focuses almost exclusively on whether BofA needed to tell shareholders about Merrill’s ballooning fourth-quarter loss estimates before the shareholders voted on whether to approve BofA’s acquisition of Merrill on Dec. 5, 2008. And the papers indicate that there was near-instant consensus among Kenneth Lewis, other BofA executives, the bank’s former general counsel, the Wachtell lawyers who advised BofA on the merger, and various Merrill executives. The issue that spurred the first SEC lawsuit against BofA — the bank’s failure to disclose upcoming Merrill bonuses — barely comes up at all in the papers.
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