Amid the piles and piles of formerly privileged documents related to the Bank of America-Merrill Lynch merger, there are a few notes and emails from mid-December 2008 showing that Bank of America’s lawyers at Wachtell Lipton Rosen & Katz were saying very different things to their client and to federal regulators, according to this story from Corporate Counsel.
Specifically, on 19 December last year, two weeks after shareholders approved the merger but a dozen days before closing, Wachtell litigation partner Eric Roth informed Bank of America that it would be very difficult, if not impossible, to get out of the deal. In an email copied to several high-level partners, including top dealmaker Edward Herlihy, Roth warned Bank of America officials that a move to break the deal because of Merrill’s ballooning fourth-quarter losses would result in a lawsuit from Merrill – one that Bank of America would be likely lose under the relevant precedent.
