Bank of America CEO Kenneth Lewis may be in for much more than a trip to the woodshed. Ever since Bank of America completed its deal to buy Merrill Lynch, questions have lingered about whether the chief executive was completely honest with shareholders about the state of Merrill specifically about the year-end bonuses paid out to Merrill employees despite the investment bank's huge 2008 losses. Bank of America shareholders have already voted to remove Lewis from the post of chairman in part because losses at Merrill turned out to be worse than Lewis let on. But that has failed to put the issue to rest.
Now, it looks likely that probes into statements about the Merrill deal made by Bank of America officials could lead to charges against Lewis. On Sept. 16 New York attorney general Andrew Cuomo issued subpoenas for five Bank of America directors, reportedly including members of the audit committee. Cuomo is also said to be weighing whether to file civil charges against Lewis.
What could that mean for the CEO? So long as any charges brought are civil and not criminal, there's no risk of jail time. But if Lewis is found to have lied, he won't likely get off with just paying a fine, experts say. He may also lose his job.
"I would advise an insurance company to deny a broad liability insurance if it doesn't fire a CEO for lying," says Nell Minow, a co-founder of corporate-governance-research firm the Corporate Library. "If a CEO is lying, then he has got to go."
The issue of Lewis' honesty resurfaced this week when a judge in U.S. district court rejected a proposed settlement struck between Bank of America and the Securities and Exchange Commission (SEC) over Merrill bonuses. The SEC and Bank of America had earlier agreed that the bank would pay a $33 million penalty to settle an investigation into whether it misled shareholders about year-end payouts on the eve of a vote to approve the merger. As part of the proposed settlement, Bank of America neither admitted nor denied that it had done anything wrong.
But Judge Jed Rakoff, in striking down the settlement, said fining the company and thus its shareholders for a misdeed of management was misplaced. "This proposal to have the victims of the violation pay an additional penalty for their own victimization was enough to give the court pause," wrote Rakoff in his decision.
The judge has ordered the case to go to trial as soon as next February. The SEC could instead try to strike a new settlement that satisfies the judge, but based on Rakoff's ruling, law professor John Coffee, who teaches a class with Rakoff at Columbia, says it is unlikely the judge would accept a substitute settlement that doesn't name any individual executives. Lewis, as the chief executive of the bank, is an obvious target. The SEC has yet to say whether it plans to pursue charges against Lewis or any other executive at Bank of America.
Even if Lewis escapes charges in the SEC case, he will still have to dodge New York attorney general Cuomo, who is also reportedly weighing charges against chief financial officer Joe Price over the Merrill bonuses and other issues surrounding the combination of the two banks. Neither Lewis nor Price could be reached for comment, though a Bank of America spokesman recently provided this statement to the Wall Street Journal: "We will continue to cooperate with the Attorney General's office as we maintain that there is no basis for charges against either the company or individual members of the management team."
Though many questions remain, here's what is known about Lewis' involvement in the Merrill deal. In a proxy statement Bank of America sent out to investors seeking approval of its acquisition of Merrill Lynch, the bank said that Merrill would not pay year-end bonuses without Bank of America's consent. But according to the SEC, Bank of America had already agreed to allow Merrill to pay $5.8 billion in bonuses. Telling shareholders that Merrill still had to seek approval, and omitting mention that bonuses had been agreed upon, was, according to the SEC, "materially false and misleading."
Then there are Lewis' direct statements. In February he told a congressional committee that Bank of America had very limited involvement in the $3.6 billion in bonuses that were paid to Merrill bankers just weeks before the Bank of America acquisition closed. "[Merrill] had a separate board, separate compensation committee and we had no authority to tell them what to do," Lewis told the committee.
In a January conference call with analysts, Lewis said he was surprised to learn in December that the losses at Merrill were much greater than his team had projected back in September, when the deal was signed. But later, when Lewis returned to testify before Congress in June, his recollection seemed to have changed. He said that it wasn't the losses that surprised him but a projection in mid-December that the losses would accelerate.
Those conflicting statements could be part of any charges brought by Cuomo, who would also likely look to prove that Bank of America played more of a key role in determining Merrill's year-end pay than its executives have let on. One possible bit of evidence: according to documents drawn up at the time of the acquisition, Merrill Lynch agreed that 40% of the bonuses it paid would be determined "by [Merrill] in consultation with [Bank of America]."
There are other apparent inconsistencies with Lewis' claim that Bank of America had little part in determining Merrill's bonuses. For example, in mid-December Bank of America senior vice president Randall Morrow sent a letter to Merrill's general counsel saying that it was the bank's understanding that the bonuses had been reduced to $3.57 billion. What's more, a former senior Merrill Lynch executive told TIME.com, before the bonuses were actually distributed in late-December a member of Bank of America's human-relations department "went over, line by line" the bonuses that were to be paid to each Merrill Lynch executive.
On the surprise fourth quarter losses at Merrill, there are also some indications that Bank of America officials were kept in the loop. A chain of e-mails reviewed by TIME.com shows that Merrill employees were giving Bank of America executives regular updates about the deteriorating profits at the investment bank. In a response to a Dec. 3 e-mail detailing nearly $1 billion in additional Merrill trading losses, Neil Cotty, B of A's chief accounting officer, responded, "BTW ... thank you for this ... they did ask ..." Importantly, none of the e-mails say the information on Merrill's losses was needed before presentations being made to Bank of America's CFO Price.