Wachtell under fire

Amid the piles and piles of formerly privileged documents related to the Bank of America-Merrill Lynch merger, there are a few notes and emails from mid-December 2008 showing that Bank of America's lawyers at Wachtell Lipton Rosen & Katz were saying very different things to their client and to federal regulators, according to this story from Corporate Counsel.

Specifically, on 19 December last year, two weeks after shareholders approved the merger but a dozen days before closing, Wachtell litigation partner Eric Roth informed Bank of America that it would be very difficult, if not impossible, to get out of the deal. In an email copied to several high-level partners, including top dealmaker Edward Herlihy, Roth warned Bank of America officials that a move to break the deal because of Merrill's ballooning fourth-quarter losses would result in a lawsuit from Merrill - one that Bank of America would be likely lose under the relevant precedent.

But a few hours later, Roth told federal regulators during a conference call that he believed the bank could terminate the merger without a problem, according to Corporate Counsel's review of a separate chain of emails between top Bank of America in-house lawyers describing the conference call. This would seem to lend credence to the notion, originally floated here by Corporate Counsel, that Bank of America attempted to leverage a threat to break the deal into billions in government bailout aid.

How these revelations impact the various investigations of Bank of America's conduct regarding the Merrill merger is unclear. The Securities and Exchange Commission (SEC) has filed suit against Bank of America, claiming it violated disclosure rules by failing to adequately inform shareholders about Merrill's plans to pay up to $5.8bn (£3.5bn) in bonuses. The House Committee on Oversight and Government Reform and the New York attorney general's office are investigating similar allegations. Wachtell's advice during the merger talks is central to those investigations.

In court filings, the SEC claims Bank of America executives declined to answer specific questions about the merger, citing attorney-client privilege and saying they relied completely on outside counsel. The bank ultimately decided to waive attorney-client privilege after a judge threw out its settlement with the SEC and under pressure from Congress and New York attorney general Andrew Cuomo.

This article first appeared on The Am Law Daily blog on americanlawyer.com.