SEC files new lawsuit against Bank of America, saying it failed to disclose losses at Merrill

SEC bring new charges against Bank of America

NEW YORK — Federal regulators sued Bank of America Corp. on Tuesday, accusing the company of failing to disclose “staggering financial losses” at Merrill Lynch before shareholders approved a combination of the companies.

The lawsuit filed by the Securities and Exchange Commission in U.S. District Court in Manhattan sought an order requiring Bank of America to pay a civil penalty for not telling shareholders it was losing $15.3 billion in the fourth quarter of 2008.

Bank of America spokesman Robert Stickler called the charges “totally without merit.”

He said the company believes it provided sufficient and appropriate disclosure to shareholders prior to their vote approving the combination.

“We look forward to presenting the facts in court,” Stickler said. “What we would note is that there were no charges against individuals and no charges of fraud. We were pleased with that.”

The SEC said the information about the losses should have been announced when it was learned after the companies publicly announced their deal in September 2008. They did not obtain shareholder approval until three months later.

Federal laws governing such transactions require that losses be revealed if they were not already reflected in Merrill’s quarterly reports or other filings.

The SEC and Bank of America, which is based in Charlotte, N.C., are already scheduled to go to trial March 1 after the SEC previously accused the bank of failing to disclose billions of dollars in bonuses paid at Merrill Lynch after the acquisition was completed a year ago.

In the new lawsuit, the SEC said Bank of America “learned of staggering losses at Merrill” in October and November of 2008.

The agency said the bank consulted its lawyers who “erroneously and negligently concluded that no disclosure was necessary because the projected quarterly loss was within the range of losses that Merrill had sustained in the preceding five quarters.”

Those losses included a $4.5 billion loss by Merrill in October 2008. The deal was approved by shareholders at a Dec. 5, 2008 meeting. Several days later, Bank of America received an updated report reflecting a forecasted net loss of more than $12 billion at Merrill, the SEC said.

It said the full fourth quarter 2008 results at Merrill were announced on Jan. 16, 2009, nearly six weeks after the shareholder vote and two weeks after the deal had closed.

A day after net loss of $15.3 billion for the quarter was reported, Bank of America stock dropped by nearly 30 percent, the SEC noted.

Bank of America shares fell 72 cents, or 4.3 percent, to $16.21 in afternoon trading.