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Democrats, Republicans at Odds Over BofA, Merrill Deal

A senior House Democrat says the government didn't force Bank of America to take over Merrill Lynch, but a bank board member said much pressure was applied and Republicans charged that a committee inquiry was covering up the role of an Obama administration official.

"The government pushed us hard to do this deal," Bank of America director Charles "Chad" Gifford said after persistent questioning by lawmakers at a hearing Tuesday.

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The House Oversight and Government Reform Committee is focused on the $45 billion federal bailout of Bank of America and its hastily arranged acquisition of Merrill last December.

The hearing examined whether Bank of America executives knew they had little chance of legally being able to back out of the deal to buy Merrill but threatened to do so to pressure the government for more bailout aid.

That is what committee chairman Rep. Edolphus Towns, D-N.Y., says happened in the tumult of December 2008 with the second-largest U.S. bank.

But the committee's ranking Republican, Rep. Darrell Issa of California, said the panel's work "has become an apparent cover-up of the continuing activities of the Obama administration," especially of Treasury Secretary Timothy Geithner.

Geithner was chairman of the Federal Reserve Bank of New York at the time of the merger in December 2008. Treasury Department spokesman Andrew Williams said Tuesday that Geithner was not involved in any Bank of America decisions after being tapped for the Treasury post last November.

"He was kept apprised of the situation as would be appropriate for any incoming Treasury secretary but he was not involved in the decision making," Williams said.

The $20 billion Merrill deal, forged the same September weekend that Lehman Brothers collapsed, was first questioned after Bank of America disclosed that the investment bank would post 2008 losses of $27.6 billion -- far more than expected. Bank of America, which had already received $25 billion in U.S. bailout aid, then asked for and received an additional $20 billion from the government to help offset those losses.

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Criticism of Bank of America CEO Ken Lewis mounted after Merrill, with the knowledge of other executives, gave $3.6 billion in bonuses to its employees even as the government was doling out more rescue money. The bonuses, which would normally have been paid in January, were paid out in December ahead of the deal's Jan. 1 completion.

Timothy Mayopoulos, who was general counsel before being abruptly fired last December, said he advised Bank of America executives that the bank couldn't make a case that Merrill's huge losses provided legal grounds for it to back out of the merger deal.

"The government did not elbow its way into this transaction," Towns said. June testimony by Lewis and documents obtained by the panel show it was the bank that forced the merger, he added.

Brian Moynihan, president of consumer and small-business banking, who took over as general counsel after Mayopoulos' firing, testified that "I did not feel pressured at any point by the government."

Moynihan is considered by analysts to be a leading candidate to replace Lewis.

Rep. Elijah Cummings, D-Md., told him: "I don't know who you think we are." It wasn't credible that Moynihan, who hadn't practiced law in years would replace the experienced Mayopoulos unless company management wanted to disregard his advice, Cummings said.

Lewis' earlier testimony, and statements by New York Attorney General Andrew Cuomo, show that "pressure was being applied," Issa said.

But Gifford, the Bank of America director, said what swayed him to vote for the merger was the legal uncertainty of fighting to invoke special circumstances to annul the deal. That would have been "a lose-lose for Bank of America shareholders," he said.

An e-mail sent by Gifford to family members on Jan. 21, released by the committee, shows him telling them: "This was a bad decision and when we realized same, the U.S. government pressured us to stick with it. That's when they agreed to give us more capital and guarantee some of their bad assets."

The flap over the bonuses ultimately cost former Merrill CEO John Thain his job at Bank of America, and the continuing fallout led Lewis to decide to step down at the end of this year.

Another key issue is what legal advice Bank of America received regarding disclosing the amount of the bonuses -- which could have totaled up to $5.8 billion -- to shareholders before their vote on the companies' merger. The Securities and Exchange Commission sued Bank of America in August, alleging that it failed to tell shareholders that it had authorized Merrill to pay that amount in 2008 even though the investment bank had suffered the stunning loss.

The terms of the bank's takeover of Merrill, including the bonus payments, were laid out in documents prepared by outside attorneys for the two companies. The attorneys were mainly responsible for drafting Bank of America's disclosure filings to the SEC.

The House panel's scrutiny follows months of legal wrangling over the deal. In September, Cuomo's office subpoenaed five members of Charlotte, N.C.-based Bank of America's board as part of an investigation into the Merrill takeover. Seven directors have resigned from the board since shareholders replaced Lewis as chairman in April.

Bank of America had settled the SEC's separate case over disclosures of the Merrill bonuses in September, but a federal judge said the $33 million settlement accord was unfair and needlessly penalized the bank's shareholders. The judge has ordered the case to go to trial on Feb. 1.

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