By Chad Bray
Of DOW JONES NEWSWIRES
NEW YORK (Dow Jones)
In separate motions filed late Tuesday, the Charlotte bank and its Merrill Lynch investment-banking unit asked U.S. District Judge Denise Cote to throw out several consolidated shareholder lawsuits with Bank of America, saying the shareholders are trying to improperly "second-guess" the business judgment of its board's business judgment.
Bank of America Chief Executive Ken Lewis and former Merrill Lynch Chief Executive John Thain, who are defendants in the cases, also asked that the suits be dismissed.
"The profound and widespread consequences of the recent financial crisis have led to opportunistic, hyperbolic hindsight attacks on the disclosures that the Bank made to investors," Bank of America said.
A lawyer for the shareholders didn't immediately return a phone call seeking comment Wednesday.
The shareholders have claimed that Bank of America and Merrill Lynch misrepresented that Merrill wouldn't make any discretionary bonus payments before the merger closed on Jan. 1 and failed to disclose a cap on Merrill bonuses. They also claim that Bank of America failed to disclose Merrill Lynch was continuing to incur subtantial losses in the fourth quarter.
As part of the merger agreement, Bank of America agreed Merrill Lynch could pay up to $5.8 billion in bonuses. Merrill Lynch ultimately paid $3.6 billion in bonuses shortly before the $50 billion merger closed on Jan. 1. The investment bank reported losses of $27.6 billion in 2008.
Bank of America and the Securities and Exchange Commission agreed earlier this year to settle similar allegations for $33 million.
U.S. District Jed S. Rakoff in Manhattan, however, rejected the pact in September, saying he believed the settlement was "neither fair, nor reasonable, nor adequate" to protect the public interest. He has set a trial in the matter for March.
-By Chad Bray, Dow Jones Newswires; 212-227-2017; chad.bray@dowjones.com