Legal News

Liman v. Cuomo Gettin? Good; BofA Counsel Calls Out NY AG

By Ashby Jones

Well, we all knew that New York AG Andrew Cuomo could throw a punch. But now we also know that Lewis Liman, the Cleary Gottlieb partner repping Bank of America in its ongoing battles over the bonuses paid to Merrill Lynch executives, is capable of jabbing back.

According to a story in the Charlotte Observer (Hat Tip: Above the Law), in a letter sent to Cuomo’s office late Tuesday, Liman said the bank was “surprised and disappointed” by accusations that it was using the attorney-client privilege to trip up the AG’s investigation into the situation.

As we wrote earlier today, Cuomo’s office on Tuesday demanded that BofA stop hiding behind the privilege, invoking it as a rationale not to turn over certain information. Cuomo’s letter invoked at least four "failures" to tell shareholders material information related to the bank's takeover of Merrill.

"First, the basic premise of the letter is simply wrong," wrote Liman — brother of Doug and son of Arthur — in the response. "Bank of America has not put at issue the subject matter of any advice of counsel. Nor has Bank of America offered reliance on legal advice as a justification for its disclosures. Bank of America’s position has been clear and consistent throughout: the proxy statement and related disclosures complied with all applicable laws, rules and regulations."

The bank said Cuomo’s office based its letter on the testimony of Bank of America officials who were asked questions under oath by the Attorney General’s office. In their responses, the executives said they relied on the advice of counsel. Bank of America itself, however, has not asserted such a defense, the letter stated.

The bank also defended its lack of disclosure of Merrill losses and the timeline around its attempt to back out of the deal in mid-December, and lashed out at Cuomo’s office for refusing to meet with Bank of America’s lawyers to discuss the investigation.

"We should note that we have repeatedly asked to meet with your Office to explain the relevant facts with respect to each of the matters the letter states are under investigation," Liman wrote. "Each of those requests has been rejected. We do not understand your office’s apparent refusal to meet with Bank of America’s counsel and to hear Bank of America and Merrill Lynch’s side of the story, including why there is no basis for seeking to invade the attorney-client privilege here."

Full post as published by Law Blog - WSJ.com on September 09, 2009 (boomark / email).