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Bank of America to pay $2.43B in settlement

By Marcy Gordon

Associated Press

Published: Friday, Sept. 28 2012 2:31 p.m. MDT

In this Dec. 7, 2011 file photo, a woman passes a Bank of America office branch, in New York. Bank of America said Friday, Sept. 28, 2012 that it has agreed to pay $2.43 billion to settle a class-action lawsuit related to its acquisition of Merrill Lynch at the height of the financial crisis.

Associated Press

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WASHINGTON — Bank of America says it has agreed to pay $2.43 billion to settle a class-action lawsuit related to its acquisition of Merrill Lynch at the height of the financial crisis.

In the lawsuit, shareholders alleged that Bank of America and some of its officers made false or misleading statements about both companies' financial health.

The lawsuit was filed on behalf of investors who bought or held Bank of America stock when the company announced its plans to buy Merrill Lynch in a $20 billion deal as the banking industry and federal regulators struggled to contain fallout from the financial crisis in the fall of 2008.

Bank of America's deal to buy Merrill Lynch was forged on the same September 2008 weekend that Lehman Brothers collapsed. The transaction came into question later after Bank of America disclosed that Merrill would post $27.6 billion in losses that year. That added significantly to Bank of America's financial woes, and the company subsequently asked for a $20 billion bailout from the government to help offset those losses, on top of the $25 billion it had already received. It has since repaid all $45 billion.

In announcing the settlement proposal on Friday, Bank of America denied the shareholders' allegations and said that it agreed to the settlement to get rid of the uncertainties, burden and costs related to the lawsuit.

"As we work to put these long-standing issues behind us, our primary focus is on the future and serving our customers and clients," Bank of America CEO Brian Moynihan said in a statement.

The investors who filed the suit said the amount of the settlement is the largest ever resolving such a claim.

"We are very pleased that the settlement will recoup a substantial portion of the losses incurred by (Bank of America) shareholders," Brian Guthrie, executive director of the Teacher Retirement System of Texas, said in a statement. "The magnitude of the recovery reinforces the important role that pension funds play when they serve as lead plaintiffs in securities actions."

Two of Ohio's public pension funds also were among the plaintiffs in the case. Ohio Attorney General Mike DeWine told reporters at a news conference in Columbus that Bank of America didn't tell investors all the details about the huge losses that were occurring in Merrill's fourth quarter.

"There was general reference to losses, but never was the magnitude of those losses disclosed," DeWine said. "This would be akin to telling someone to watch out for a pothole, when they were about to fall into the Grand Canyon."

The settlement still needs court approval and will be reviewed by Judge Kevin Castel of U.S. District Court for the Southern District of New York.

As part of the settlement, the bank has also agreed to adopt several corporate governance policies until Jan. 1, 2015. These policies include those related to majority voting in board member elections, annual disclosure of noncompliance with stock ownership guidelines, policies for a board committee regarding future acquisitions, the independence of the board's compensation committee and its compensation consultants and conducting an annual "say-on-pay" vote by shareholders.

Bank of America, based in Charlotte, N.C., has been dogged by litigation as the consequences of the financial crisis continue to swirl around it. Most of the legal headaches stem from Bank of America's acquisitions of Merrill and of Countrywide Financial, the brash company known for making high-risk mortgages.

The Securities and Exchange Commission won a $150 million settlement from Bank of America in 2009 to resolve charges that it misled shareholders when it acquired Merrill. The SEC had accused Bank of America of failing to disclose to shareholders before they voted on the Merrill deal that it had authorized Merrill to pay as much as $5.8 billion in bonuses to its employees in 2008 even though the investment firm lost $27.6 billion that year.

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