Cuomo blasts Merrill executives on bonus plan

updated 3:09 p.m. ET Feb. 11, 2009

ALBANY, N.Y. - New York Attorney General Andrew Cuomo laid out further details Wednesday about $3.6 billion in bonuses Merrill Lynch & Co. executives received, calling the investment bank’s executives irresponsible.

Cuomo detailed the size and scope of the bonuses in a letter sent to U.S. House Financial Services Chairman Barney Frank.

“In a surprising fit of corporate irresponsibility, it appears that, instead of disclosing their bonus plans in a transparent way as requested by my office, Merrill Lynch secretly moved up the planned date to allocate bonuses and then richly rewarded their failed executives,” Cuomo stated. In the letter, Cuomo said he requested information on Merrill’s expected bonuses as early as Oct. 29, but never received any details about the size of the bonus pool and criteria it planned to use to make the payments.

The Merrill bonuses were paid in late December, just days before Bank of America Corp. completed its purchase of New York-based Merrill. The payments also came as Merrill was on the brink of reporting a more than $15 billion fourth-quarter loss as it has been among the hardest hit by the ongoing credit crisis.

Cuomo said in the letter that Bank of America was apparently complicit in the move to award bonuses before Merrill’s fourth quarter loss was announced.

Both Merrill and Bank of America could face charges of securities fraud in New York as the attorney general’s office investigation unfolds, according to a person familiar with the investigation who requested anonymity because of the ongoing nature of the matter. The person said Cuomo’s office is attempting to determine if proper disclosures were provided to investors about the timing and size of the bonuses as well as the “deteriorating health of Merrill.”

Christopher Bebel, a former federal prosecutor and Securities and Exchange Commission attorney, said the New York attorney general’s office could try to make its case by proving it was necessary for disclosures to be provided because of the abnormal timing of the payments.

“Because (former Merrill Chief Executive John) Thain intended to depart so radically from the well established pattern of bonus payouts, Merrill had an obligation to disclose (the information) to investors, given the enormous amount of money at stake,” Bebel said. Banks traditionally pay out year-end bonuses during the first quarter of the following year.

Bebel said Merrill and Thain’s defense against that claim would likely be to say the company was given the right to make bonus payments as part of the acquisition, and it had no choice but to pay them in late December because Merrill would cease to exist as a stand alone firm beginning Jan. 1.

Bank of America spokesman Scott Silvestri said in a statement that Merrill Lynch was an independent company last year, and its board of directors had ultimate approval over how much to pay employees.

Silvestri said: “Bank of America did urge the bonuses be reduced, including those at the high end. Although we had a right of consultation, it was their ultimate decision to make. In addition, a substantial amount of the Merrill bonuses were contractually guaranteed.”

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