The Rise and Sudden Fall of Bank of America’s Ken Lewis

Bank of America CEO Kenneth Lewis may be in for much more than a trip to the woodshed. Ever since Bank of America completed its deal to buy Merrill Lynch, questions have lingered about whether the chief executive was completely honest with shareholders about the state of Merrill — specifically about the year-end bonuses paid out to Merrill employees despite the investment bank’s huge 2008 losses. Bank of America shareholders have already voted to remove Lewis from the post of chairman in part because losses at Merrill turned out to be worse than Lewis let on. But that has failed to put the issue to rest.

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Now, it looks likely that probes into statements about the Merrill deal made by Bank of America officials could lead to charges against Lewis. On Sept. 16 New York attorney general Andrew Cuomo issued subpoenas for five Bank of America directors, reportedly including members of the audit committee. Cuomo is also said to be weighing whether to file civil charges against Lewis.

What could that mean for the CEO? So long as any charges brought are civil and not criminal, there’s no risk of jail time. But if Lewis is found to have lied, he won’t likely get off with just paying a fine, experts say. He may also lose his job.

“I would advise an insurance company to deny a broad liability insurance if it doesn’t fire a CEO for lying,” says Nell Minow, a co-founder of corporate-governance-research firm the Corporate Library. “If a CEO is lying, then he has got to go.”

The issue of Lewis’ honesty resurfaced this week when a judge in U.S. district court rejected a proposed settlement struck between Bank of America and the Securities and Exchange Commission (SEC) over Merrill bonuses. The SEC and Bank of America had earlier agreed that the bank would pay a $33 million penalty to settle an investigation into whether it misled shareholders about year-end payouts on the eve of a vote to approve the merger. As part of the proposed settlement, Bank of America neither admitted nor denied that it had done anything wrong.

But Judge Jed Rakoff, in striking down the settlement, said fining the company — and thus its shareholders — for a misdeed of management was misplaced. “This proposal to have the victims of the violation pay an additional penalty for their own victimization was enough to give the court pause,” wrote Rakoff in his decision.

The judge has ordered the case to go to trial as soon as next February. The SEC could instead try to strike a new settlement that satisfies the judge, but based on Rakoff’s ruling, law professor John Coffee, who teaches a class with Rakoff at Columbia, says it is unlikely the judge would accept a substitute settlement that doesn’t name any individual executives. Lewis, as the chief executive of the bank, is an obvious target. The SEC has yet to say whether it plans to pursue charges against Lewis or any other executive at Bank of America.

Even if Lewis escapes charges in the SEC case, he will still have to dodge New York attorney general Cuomo, who is also reportedly weighing charges against chief financial officer Joe Price over the Merrill bonuses and other issues surrounding the combination of the two banks. Neither Lewis nor Price could be reached for comment, though a Bank of America spokesman recently provided this statement to the Wall Street Journal: “We will continue to cooperate with the Attorney General’s office as we maintain that there is no basis for charges against either the company or individual members of the management team.”

Though many questions remain, here’s what is known about Lewis’ involvement in the Merrill deal. In a proxy statement Bank of America sent out to investors seeking approval of its acquisition of Merrill Lynch, the bank said that Merrill would not pay year-end bonuses without Bank of America’s consent. But according to the SEC, Bank of America had already agreed to allow Merrill to pay $5.8 billion in bonuses. Telling shareholders that Merrill still had to seek approval, and omitting mention that bonuses had been agreed upon, was, according to the SEC, “materially false and misleading.”

Then there are Lewis’ direct statements. In February he told a congressional committee that Bank of America had very limited involvement in the $3.6 billion in bonuses that were paid to Merrill bankers just weeks before the Bank of America acquisition closed. “[Merrill] had a separate board, separate compensation committee and we had no authority to tell them what to do,” Lewis told the committee.

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In a January conference call with analysts, Lewis said he was surprised to learn in December that the losses at Merrill were much greater than his team had projected back in September, when the deal was signed. But later, when Lewis returned to testify before Congress in June, his recollection seemed to have changed. He said that it wasn’t the losses that surprised him but a projection in mid-December that the losses would accelerate.

Those conflicting statements could be part of any charges brought by Cuomo, who would also likely look to prove that Bank of America played more of a key role in determining Merrill’s year-end pay than its executives have let on. One possible bit of evidence: according to documents drawn up at the time of the acquisition, Merrill Lynch agreed that 40% of the bonuses it paid would be determined “by [Merrill] in consultation with [Bank of America].”

There are other apparent inconsistencies with Lewis’ claim that Bank of America had little part in determining Merrill’s bonuses. For example, in mid-December Bank of America senior vice president Randall Morrow sent a letter to Merrill’s general counsel saying that it was the bank’s understanding that the bonuses had been reduced to $3.57 billion. What’s more, a former senior Merrill Lynch executive told TIME.com, before the bonuses were actually distributed in late-December a member of Bank of America’s human-relations department “went over, line by line” the bonuses that were to be paid to each Merrill Lynch executive.

On the surprise fourth quarter losses at Merrill, there are also some indications that Bank of America officials were kept in the loop. A chain of e-mails reviewed by TIME.com shows that Merrill employees were giving Bank of America executives regular updates about the deteriorating profits at the investment bank. In a response to a Dec. 3 e-mail detailing nearly $1 billion in additional Merrill trading losses, Neil Cotty, B of A’s chief accounting officer, responded, “BTW … thank you for this … they did ask …” Importantly, none of the e-mails say the information on Merrill’s losses was needed before presentations being made to Bank of America’s CFO Price.

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Some inconsequential fibbing by executives is allowed — just think of all the corporate bluster you get on business TV channels. Executives can state that they believe their company has the best employees or the best strategy, even if that turns out to be wrong. But when CEOs make statements that are deemed to mislead shareholders about the state of their business, that’s a securities-law violation and can be considered a criminal offense. If it is determined that Lewis made statements himself or was responsible for directing the bank to make statements that misled shareholders, he could be facing fines or worse.

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The SEC case against Bank of America — the one that was settled, but could now be revived — involves lying on a proxy statement. The good news for Lewis is that proxy fraud generally has lower penalties than regular securities fraud. The bad news is that the bar for proving that one lied on a proxy statement is much lower than for general securities fraud. In proxy fraud, the prosecution just has to prove that Lewis was negligent in not including certain information. The SEC does not have to prove, as is the case in regular securities fraud, that Lewis orchestrated a scheme to defraud investors. Poor judgment could be enough to get you in hot water in proxy fraud.

The SEC is only allowed to bring civil cases. So even if Lewis is found liable on proxy statements, there is no possibility of jail time. The SEC can bar individuals from being officers of public companies, which would put an end to Lewis’ Bank of America career, but legal experts say a ban in a proxy case would be unusual. The size of any fine would be determined by how important the information withheld was deemed to be. Still, even a relatively minor misstatement or omission can lead to a finding of liability.

“It doesn’t have to be something that moves the market to amount to proxy fraud,” says Richard Painter, a law professor at the University of Minnesota. “Just has to be something that a reasonable investor finds important.”

New York’s Cuomo does have the authority to bring criminal cases involving securities violations under the Martin Act, which gives the attorney general of New York the power to prosecute financial fraud. And it is not unheard of for executives to go to jail for lying on a proxy statement. In the 1970s, in a famous Wall Street fraud case, the chief executive of National Student Marketing was sentenced to 18 months in jail for lying about the finances of a company National Student Marketing was acquiring. Yet Cuomo has typically stuck to bringing civil charges against executives and companies, and that is reportedly what he is considering in the Bank of America case.

Cuomo will have a higher bar to clear if he’s looking for wrongdoing outside the proxy statements. In general securities-fraud cases, it must be proven that executives of a company knew that a piece of information was material and created a scheme to make sure shareholders didn’t find out about it. Certainly if Lewis or others were found guilty of that they would face stiff penalties. What’s more, judges typically are more likely to ban, at least temporarily, executives of financial-services companies who are found in violation of securities-fraud laws because it is considered to be more damaging to the credibility of the market. In the 1990s, several executives of Salomon Brothers were suspended from being officers of a securities firm after they failed to disclose big losses by one of the firm’s bond traders.

“Every time you open your mouth to shareholders you potentially could violate securities laws,” says Painter. “You need to be open and honest at all times.”

Whatever the penalty, though, if Lewis is found to have lied about facts surrounding the Merrill merger, it is likely that the board will be forced to let him go. “Judge Rakoff is saying that executives need to be held accountable for the decisions they made,” says Corporate Library’s Minow. “I think heads will roll for this.”

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