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Bank of America to Waive Attorney-Client Privilege in Merrill Acquisition

Posted Oct 13, 2009 6:37 AM CDT
By Debra Cassens Weiss

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Bank of America has agreed to reveal legal advice it obtained in its acquisition of Merrill Lynch, a move likely to put the spotlight on its outside law firm in the deal, Wachtell, Lipton Rosen & Katz.

Bank of America’s board voted to waive its attorney-client privilege on Friday, according to the New York Times and the Wall Street Journal (sub. req.). The move will likely reveal legal advice from Wachtell as well as Merrill’s outside law firm, Shearman & Sterling, according to the Wall Street Journal.

Also likely to be revealed is legal advice from two former general counsel. One of them is Timothy Mayopoulos, who was suddenly fired four days after approval of the merger. The other is Brian Moynihan, who is in being considered as a replacement for chief executive Kenneth Lewis.

On Monday, the bank informed New York Attorney General Andrew Cuomo of its decision, the Wall Street Journal says. The bank is also negotiating a waiver of the documents with the Securities and Exchange Commission in a case pending before U.S. District Judge Jed Rakoff of Manhattan. The negotiated waiver would allow the bank to limit those who can access the documents and testimony stemming from the waiver, according to the Wall Street Journal story.

Rakoff refused to approve a settlement in the SEC case, which accuses the bank of misleading investors about plans to pay bonuses to Merrill Lynch executives before acquiring the company. Rakoff said it would be unfair to punish shareholders and questioned why executives, and possibly lawyers, weren't within the SEC's targets.

Bank of America has hired Paul, Weiss, Rifkind, Wharton & Garrison in the civil and regulatory matters related to the merger, according to the American Lawyer.

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