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Ex-Bank of America CFO Is in Cuomo’s Crosshairs

This story is republished from CFOZone, where you’ll find news, analysis and professional networking tools for finance executives.

We briefly discussed work-inspired nightmares yesterday but as professionarobably don’t get a whole lot more unsettling than Joe L. Price’s.

Price, the former CFO at Bank of America, must be tossing and turning lately, what with the attorney general of New York naming him personally last week in a lawsuit over the bank’s handling of the ugly Merrill Lynch acquisition/investor-subsidized bailout/compensation party in late 2008.

Now, Price and former BofA CEO Ken Lewis face another unpleasant twist in what they must’ve thought originally was a slam dunk in an awkward but palatable settlement with the SEC over the Merrill Lynch deal (beware that slam-dunk feeling [see Tenet, George]).

Recall how Jed Rakoff, the irascible U.S. District Court judge presiding over the BofA/Merrill Lynch case, last year rejected a settlement between the SEC and BofA, saying that $33 million wasn’t nearly enough for the bank to make things right with investors who were kept in the dark about the unsavory downside – if that’s not too generous a word – for taking on Merrill Lynch’s baggage. And then on Monday Rakoff started asking mean questions about the second rendition, in which the SEC and BofA are saying, okay, fine, how does $150 million sound?

Going by some of the doubts Rakoff raised, he isn’t leaning toward letting the BofA executives ease on out of their difficult litigation-riddled winter into a springtime of sun-dappled redemption and new life. Easter, as it were, may yet be cold and wet (as may Passover, choose your festival). But don’t blame Rakoff because there are better scapegoats – the SEC, Andrew Cuomo, Punxatawny Phil …

Cuomo, that pesky AG in Albany, asserted in his allegations against Price et al. that BofA lawyers who had counseled against pulling the curtain aside on certain details about Merrill Lynch were essentially operating in the dark and that they were, therefore, misled. “Bank management failed to provide any of their lawyers with accurate information about the losses which the disclosure issue concerned,” the civil-suit complaint says, adding painful elaboration that alleges “false and incomplete information provided by Price.” (Ron Fink explains here).

This is not the kind of thing a CFO likes to read about himself or herself, which is why it may be best as a rule to come clean from the get-go. At the heart of the controversy is the assertion that BofA execs were simply not forthright about how they allowed Merrill Lynch brass to receive billions of dollars in bonus bucks in exchange for having lost billions of investor dollars.

In such a context, Radoff has implied, $33 million is chicken feed and $150 million is – I don’t know – cat food? The good judge apparently wants the bankers to throw some steak over the wall.

Also at issue, and fundamental to how BofA is managed going forward, are questions about how certain aspects of corporate governance are handled, perhaps especially about how compensation is set. Rakoff suggested that there might be better ways to come up with a reasonable pay scheme than leaving it to BofA’s compensation committee to pick its compensation consultant of choice.

A big clue about how he might rule on this is in his observation on Monday as to the “incredibly bloated compensation of too many executives in too many American companies.”

Preliminary Analytics | 12.17.09

ben_old.jpgBen Bernanke: Time’s “Person of the Year” – The JDA almost fools you into thinking that she wasn’t that upset over Time’s selection. [JDA]
BofA Taps Moynihan as CEO – The search is now on for the location for the Ken Lewis send-off. [WSJ]
Proxy Disclosure Of Stock-Based Comp To Change Under SEC Final Rule Approved Today [FEI Financial Reporting Blog]
SAC Capital, Steve Cohen (And His Brother) Sued By Ex-Mrs. C – She’s alleging insider trading, concealing of assets during their divorce, and wants $300 mil for her trouble. [DB]
Citi to Suspend Foreclosures for 30 Days – “The New York-based bank said Thursday the suspension will run from Friday through Jan. 17. It applies only to borrowers whose loans are owned by Citi. Borrowers who make payments to Citi but whose loans are owned by other investors are out of luck.” [AP via NYT]

Ken Lewis Should Have Been a CPA

KenLewisNOPEb.jpgWe know public accounting is hard. The unpaid overtime (*cough* perhaps PwC can tell you about that *cough*), busy season, the misconception that all CPAs are number-crunching mathletes, and, of course, the inconvenience of having to answer everyone’s obscure tax questions. “Dude, I don’t even WORK in tax, I’m an auditor.” “Yeah but I just have this quick question about a deduction…”
As bad as the CPAs may have it, they’ve got it easy compared to this guy. Poor Ken Lewis. Someone invite him to waste a few years in public accounting please, he’s getting pounded from every angle over here, poor bastard.
Let’s check the timeline – please compare to your busy season and see who has it worse if you’re still regretting your decision.
More on KL’s banner year, after the jump

Ken Lewis’ year started sucking in January after the Merrill bonus scandal erupted. This got NY State Attorney General Andrew Cuomo on his back, eventually leading to the Fedgate scandal in which Lewis claimed Ben Bernanke and Hank Paulson “threatened” the Bank of America CEO or kept him on a short TARP leash or some such “OMG did he really just say that?” revelation. He’d already come off a pretty rough year previous but you already know that story.
Bernanke and Paulson didn’t take getting fronted off too kindly (we can only assume) and Lewis hasn’t really gotten a break since. The guy couldn’t even sell his Porsche without feeling the heat. Now a judge is blocking the $33 million settlement he’d love to make with the SEC and some Citigroup reject is being groomed as his replacement. Burn. Oh, and then there are the JP Morgan analysts saying Bank of America will service the loans that TBW cannot since, well, it was raided by Federal agents and barred from making loans by the FHA.
So how bad do you really have it? We told you it could be worse. Next time you’re out there ticking and tying wondering how in the hell you’re going to spend the rest of your life that way, just think about Bank of America and remember you could be Ken Lewis right about now.
What we’d really like to know is: will Lewis be able to limp along for the next 3 years and make it to retirement before totally flipping out?