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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

----------------------------------------------------------- XTHE PEOPLE OF THE STATE OF NEW YORK By ANDREW M. CUOMO, Attorney General of the State of New York,

Plaintiff,

-against-

BANK OF AMERICA CORPORATION, KENNETH D. LEWIS and JOSEPH L. PRICE,

Defendants.

:: : : : : : : : : : : :

----------------------------------------------------------- X

Index No. 450115/2010 ANSWER OF DEFENDANT BANK OF AMERICA CORPORATION

Pursuant to New York Civil Practice Law and Rules (“CPLR”) 3018,

Bank of America Corporation (“Bank of America”), by its undersigned attorneys, files

this Answer to the Complaint of the Attorney General of the State of New York (the

“Attorney General”) dated February 4, 2010. All allegations, including headings and

subheadings, not specifically admitted are hereby denied.

RESPONSES TO ALLEGATIONS OF THE ATTORNEY GENERAL

1. Bank of America contends that paragraph 1 contains no factual

allegations to which an answer can be given, and to the extent that any response to such

allegations is necessary, denies the allegations in paragraph 1, except admits that Bank of

America agreed to merge with Merrill Lynch & Co., Inc. (“Merrill Lynch”) in September

2008 (the “Merger”).

2. Bank of America denies the allegations in paragraph 2, except

admits that Bank of America agreed to merge with Merrill Lynch pursuant to an

agreement dated September 15, 2008 (the “Merger Agreement”); that the Merger was

FILED: NEW YORK COUNTY CLERK 08/18/2010 INDEX NO. 450115/2010NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/18/2010

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announced on Monday, September 15, 2008; and that the proxy statement filed with the

Securities and Exchange Commission on November 3, 2008 (the “Proxy Statement”) was

mailed to shareholders on or about November 3, 2008, and refers to the Proxy Statement

for a true and complete statement of its terms.

3. Bank of America denies the allegations in paragraph 3.


admits that on December 5, 2008, shareholders of Merrill Lynch voted to approve the

Merger and shareholders of Bank of America voted to authorize the issuance of shares

necessary to effect the Merger; that the Merger closed on January 1, 2009; and that

Merrill Lynch’s fourth quarter results for 2008 were timely released in accordance with

applicable law on January 16, 2009.



admits that on certain dates after the announcement of the Merger in September 2008,

certain employees of Bank of America received certain preliminary, estimated, and

forecasted financial information relating to Merrill Lynch’s financial performance in the

fourth quarter of 2008.


admits that on November 13, 2008, Timothy Mayopoulos, then Bank of America’s

General Counsel, and lawyers from Wachtell, Lipton, Rosen & Katz, among others,

discussed disclosure issues relating to Merrill Lynch’s financial performance in the fourth

quarter of 2008.

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admits that on December 3, 2008, Joe Price and Kenneth Lewis participated in a

discussion relating to Merrill Lynch’s fourth quarter 2008 forecast, and that Mr. Price

received disclosure advice from Mr. Mayopoulos with respect to Merrill Lynch’s

financial performance in the fourth quarter of 2008.


admits that Mr. Mayopoulos concluded that no additional disclosure beyond that already

made by Bank of America and Merrill Lynch was necessary.



admits that the Bank of America Board of Directors met on December 9, 2008, that Mr.

Price provided summary financial information at the meeting, and that Mr. Mayopoulos

testified that he recalls a December 1, 2008 discussion with Mr. Price and Gregory Curl

at which the material adverse change (“MAC”) clause of the Merger Agreement was

discussed.1


admits that Mr. Mayopoulos’s employment was terminated on December 10, 2008; that

Brian Moynihan, currently the Chief Executive Officer of Bank of America, became

General Counsel of Bank of America on December 10, 2008 after having held several

leadership positions at Bank of America and having practiced law for many years,

1 To the extent Bank of America refers to the testimony of witnesses interviewed by the Attorney

General in this Answer, such references should not be construed as a statement concerning the accuracy or completeness of the witness testimony as reflected in the transcripts produced by the Attorney General.

4

including as a partner at a well-respected law firm; and that Mr. Moynihan’s bar

membership status was inactive as of December 10, 2008.


states that it lacks knowledge and information sufficient to form a belief as to the truth of

the allegations relating to advice that Deloitte & Touche LLP gave to Merrill Lynch prior

to the Merger, admits that on December 5, 2008, shareholders of Merrill Lynch voted to

approve the Merger and shareholders of Bank of America voted to authorize the issuance

of shares necessary to effect the Merger, and refers to the entirety of the testimony of

Thomas Graham and Jeffrey Brown for a true and complete understanding of its

substance.



admits that in conversations with federal officials between December 17 and 21, 2008,

Bank of America executives stated that Bank of America believed it had grounds to

invoke the MAC clause of the Merger Agreement in light of the accelerating losses at

Merrill Lynch in the days following the shareholder vote.







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admits that the Merger closed on January 1, 2009 and that Bank of America, along with

many other financial institutions, received funds through the Troubled Asset Relief

Program in October 2008 and January 2009.


admits that Merrill Lynch paid its employees approximately $3.6 billion in aggregate

value of both cash and stock in the year-end variable incentive compensation program

(“VICP”) for 2008 and that the cash portion of such compensation was paid prior to the

closing of the Merger on January 1, 2009.

24. Bank of America denies the allegations in paragraph 24, and avers

that Bank of America and Merrill Lynch publicly disclosed, as part of the Proxy

Statement and elsewhere, the amount of overall compensation expense that Merrill Lynch

had accrued through the third quarter of 2008; that numerous media outlets, in

newspapers, on television, and over the internet, reported that Merrill Lynch was

expected to pay multi-billions of dollars in year-end incentive compensation for 2008;

and that the Proxy Statement expressly disclosed Merrill Lynch’s intention and/or

commitment to pay incentive compensation and to use its best efforts to retain key

employees.


26. Paragraph 26 states legal conclusions to which Bank of America

need not respond and/or allegations as to which Bank of America lacks knowledge and

information. To the extent any response to the allegations in paragraph 26 is necessary,

Bank of America denies them.

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need not respond. To the extent any response to those allegations is necessary, Bank of

America denies them.











admits that it transacted business and maintained an office in New York between

September 2008 and January 2009.

32. Bank of America admits the allegations in paragraph 32.


admits that Mr. Lewis was the Chairman and Chief Executive Officer of Bank of

America between September 2008 and January 2009.


admits that Mr. Price was the Chief Financial Officer of Bank of America Corporation

between September 2008 and January 2009 and that Mr. Price reported directly to Mr.

Lewis during this time period.

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admits that J. Steele Alphin was the Chief Administrative Officer of Bank of America

between September 2008 and January 2009.


admits that Richard Alsop was in-house counsel at Merrill Lynch between September

2008 and the closing of the Merger.


admits that David Belk was Senior Vice President of Bank of America’s Global

Corporate Strategy and Development group between September 2008 and January 2009

and previously worked in the Finance group.


admits that Teresa Brenner was associate general counsel at Bank of America between



admits that Mr. Brown was Bank of America’s Treasurer between September 2008 and

January 2009 and that Mr. Brown reported directly to Mr. Price during this time period.


admits that Gary Carlin was Corporate Controller at Merrill Lynch between September

2008 and the closing of the Merger.


admits that George Carp was the Business Finance Officer for Bank of America’s Global

Markets group between September 2008 and January 2009.

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admits that Nelson Chai was the Executive Vice President and Chief Financial Officer of

Merrill Lynch between September 2008 and the closing of the Merger and that Mr. Chai

reported directly to John Thain during this time period.


admits that Neil Cotty was Chief Accounting Officer of Bank of America between



admits that Mr. Curl was the Vice Chairman of Corporate Development at Bank of

America between September 2008 and January 2009, that Mr. Curl’s responsibilities

during this time period included strategic corporate planning, that Mr. Curl reported to

Mr. Lewis during this period, and that Mr. Curl was one of the negotiators for Bank of

America during the Merger negotiations with Merrill Lynch.


admits that Wachtell, Lipton, Rosen & Katz was retained by Bank of America to advise it

on legal issues related to the Merger and that Nicholas Demmo was a corporate partner at

Wachtell, Lipton, Rosen & Katz between September 2008 and January 2009.


admits that John Finnegan was the Chairman of Merrill Lynch’s Management

Development and Compensation Committee (“MDCC”) between September 2008 and

the closing of the Merger.


admits that Gregory Fleming was President of Investment Banking and Wealth

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Management at Merrill Lynch between September 2008 and the closing of the Merger;

that, prior to the Merger, Mr. Fleming was responsible for Merrill Lynch’s investment

banking and wealth management divisions and for overseeing investor relations and

human resources; that Mr. Fleming was one of the negotiators for Merrill Lynch during

Merger negotiations with Bank of America; and that Mr. Fleming reported to Mr. Thain.


admits that Charles K. Gifford was a member of Bank of America’s Board of Directors


49. Bank of America states that it lacks knowledge and information

sufficient to form a belief as to the truth of the allegations in paragraph 49 concerning

Deloitte & Touche LLP, a third party, and avers that it is Bank of America’s

understanding that Mr. Graham was a partner at Deloitte & Touche LLP between

September 2008 and the closing of the Merger.


admits that Christopher Hayward was Finance Director of Merrill Lynch between

September 2008 and the closing of the Merger and that Mr. Hayward reported to Mr.

Chai during this time period.



on legal issues related to the Merger and that Ed Herlihy was a corporate partner at



sufficient to form a belief as to the truth of the allegations in paragraph 52 concerning

10

Deloitte & Touche LLP, a third party, and avers that it is Bank of America’s

understanding that Ven Kocaj was a partner at Deloitte & Touche LLP between

September 2008 and the closing of the Merger.


admits that Thomas J. May was a member of Bank of America’s Board of Directors



admits that Mr. Mayopoulos was General Counsel of Bank of America between

September 2008 and December 10, 2008 and that Mr. Mayopoulos was one of the many

attorneys who advised Bank of America regarding the Merger.


admits that certain employees of Bank of America received certain preliminary,

estimated, and forecasted financial information from Merrill Lynch, including from

Nancy Meloth, relating to Merrill Lynch’s financial performance in the fourth quarter of

2008; that Ms. Meloth was the Head of Financial Planning and Analysis in Merrill

Lynch’s Finance Department between September 2008 and the closing of the Merger;

and that she reported to Mr. Hayward during this time period.


admits that David Moser was a Managing Director and Global Head of Accounting

Policy at Merrill Lynch between September 2008 and the closing of the Merger.


admits that Mr. Moynihan was President of Global Corporate and Investment Banking

between September 2008 and December 10, 2008; that Mr. Moynihan was General

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Counsel of Bank of America from December 10, 2008 to January 22, 2009; that Mr.

Moynihan became President of Global Banking and Global Wealth and Investment

Management on January 22, 2009; and that Mr. Moynihan is currently the Chief

Executive Officer of Bank of America.



on legal issues related to the Merger and that Eric Roth was a litigation partner at



admits that Andrea Smith was a Human Resources generalist who supported various

businesses within Bank of America, including the Global Corporate Investment Bank and

the CFO group, between September 2008 and January 2009.


admits that Mr. Thain was President of Global Banking, Securities, and Wealth

Management at Bank of America from January 1, 2009 to January 22, 2009 and that Mr.

Thain was the Chairman and Chief Executive Officer of Merrill Lynch from September

2008 until the closing of the Merger.


admits that certain Bank of America executives received certain preliminary, estimated,

and forecasted financial information relating to Merrill Lynch’s financial performance in

the fourth quarter prior to December 5, 2008.

12

Bank of America denies the allegations in the first paragraph of footnote 1

to paragraph 61, except admits that Bank of America conducted due diligence on Merrill

Lynch on September 13 and 14, 2008.

Bank of America denies the allegations in the second paragraph of

footnote 1 to paragraph 61, except admits that Bank of America retained the services of

J.C. Flowers & Co. LLC in connection with the proposed Merger, and avers that Bank of

America and its employees and advisors conducted adequate due diligence prior to

entering into the Merger Agreement.

Bank of America denies the allegations in the third paragraph of footnote

1 to paragraph 61, except admits that Bank of America’s Board of Directors met on

September 14, 2008 to review the terms of the proposed Merger and approved the

Merger, and refers to the e-mail referenced in the third paragraph of footnote 1 to

paragraph 61 for a true and complete statement of its contents.

Bank of America denies the allegations in the fourth paragraph of footnote

1 to paragraph 61, except admits that Bank of America and Merrill Lynch agreed to a

stock-for-stock merger at a fixed exchange ratio of .8595 and that, based upon the market

value of Bank of America and Merrill Lynch common stock on September 12, 2008, the

price represented a 70 percent premium to the closing price of Merrill Lynch’s common

stock on September 12, 2008.


admits that on November 13, 2008, General Counsel Timothy Mayopoulos consulted

with external counsel at Wachtell, Lipton, Rosen & Katz concerning any disclosure

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obligation of Bank of America concerning Merrill Lynch’s preliminary, estimated, and

forecasted financial performance in the fourth quarter of 2008.



admits that Ms. Meloth oversaw the forecasting process at Merrill Lynch, and refers to

the entirety of Ms. Meloth’s testimony for a true and complete understanding of its

substance.

65. Bank of America denies the allegations in paragraph 65, and refers

to the reports referenced in paragraph 65 for a true and complete statement of their terms.


to the reports referenced in paragraph 66 for a true and complete statement of their terms

and to the entirety of Ms. Meloth’s testimony for a true and complete understanding of its

substance.



any allegations concerning Merrill Lynch’s internal processes prior to the Merger, and

refers to the reports referenced in paragraph 67 for a true and complete statement of their

contents.


admits that in the third quarter of 2008, Merrill Lynch carried goodwill on its books, and

avers that Bank of America and the market generally were aware that as a result of

accounting rules, Merrill Lynch’s historical goodwill would be written off upon the

closing of the Merger and that this was disclosed in the Proxy Statement.

14



admits that certain employees of Bank of America received certain preliminary,

estimated, and forecasted financial information relating to Merrill Lynch’s financial

performance in the fourth quarter of 2008.


admits that Ms. Meloth sent Messrs. Cotty, Carlin, and Hayward an e-mail dated

November 4, 2008 with the subject line “October month estimate on Nov 4” and that Mr.

Cotty forwarded this e-mail to Mr. Price on November 5, 2008, and refers to those e-

mails and the attachments thereto for a true and complete statement of their contents.


admits that there is an e-mail from Mr. Cotty to Mr. Price dated November 9, 2008 with

the subject line “FW: Oct-08 PL Reports as of 11/7/08,” and refers to this e-mail for a

true and complete statement of its contents.


admits that there is an e-mail from Ms. Meloth to Mr. Cotty dated November 12, 2008

with the subject line “4Q forecast,” and refers to this e-mail for a true and complete

statement of its contents.


admits that on November 12, 2008, Mr. Price requested legal advice from Mr.

Mayopoulos regarding whether any disclosure of Merrill Lynch’s fourth quarter

performance was necessary and that Mr. Price and other Bank of America employees and

counsel, including Mr. Mayopoulos and Ms. Brenner, subsequently conferred regarding

15

any disclosure obligation of Bank of America relating to this information, and refers to

the entirety of Mr. Mayopoulos’s testimony for a true and complete understanding of its

substance.


refers to the entirety of Mr. Mayopoulos’s testimony for a true and complete

understanding of its substance.


admits that Mr. Mayopoulos consulted with external counsel, and refers to the entirety of

the testimony of Messrs. Mayopoulos and Roth for a true and complete understanding of

its substance.


admits that Bank of America obtained disclosure advice from external counsel at

Wachtell, Lipton, Rosen & Katz and that Mr. Roth handled shareholder litigation by

Merrill Lynch shareholders challenging the Merger, states that it lacks knowledge and

information sufficient to form a belief as to the truth of any allegations concerning

communications that are solely internal to Wachtell, Lipton, Rosen & Katz, and refers to

Mr. Roth’s notes and the e-mail dated November 13, 2008 for a true and complete

statement of their contents.



Wachtell, Lipton, Rosen & Katz, states that it lacks knowledge and information sufficient

to form a belief as to the truth of any allegations concerning communications that are

16

solely internal to Wachtell, Lipton, Rosen & Katz, and refers to Mr. Roth’s notes for a

true and complete statement of their contents.



Wachtell, Lipton, Rosen & Katz, states that it lacks knowledge and information sufficient

to form a belief as to the truth of any allegations concerning communications that are

solely internal to Wachtell, Lipton, Rosen & Katz, and refers to the entirety of Mr. Roth’s

testimony for a true and complete understanding of its substance.


admits that Mr. Mayopoulos participated in a telephone conference on November 13,

2008 with Ms. Brenner and Messrs. Roth, Demmo, and Herlihy, and refers to the entirety

of Mr. Mayopoulos’s testimony for a true and complete understanding of its substance.



2008 with Ms. Brenner and Messrs. Roth, Demmo, and Herlihy, and refers to the entirety

of Mr. Herlihy’s testimony for a true and complete understanding of its substance.



2008 with Ms. Brenner and Messrs. Roth, Demmo, and Herlihy and that Mr. Roth took

notes in the course of the telephone conference, and refers to Mr. Roth’s notes for a true

and complete statement of their contents.


admits that Mr. Price attended a meeting on or about November 14, 2008 that was also

17

attended by certain employees of Merrill Lynch, among others, concerning Merrill

Lynch’s preliminary, estimated, and forecasted financial performance in the fourth

quarter of 2008 and conferred with Mr. Thain concerning whether Merrill Lynch believed

it appropriate to make an intra-quarter disclosure during the fourth quarter, and refers to

Mr. Roth’s notes of the November 13, 2008 telephone conference for a true and complete

statement of their contents and to the entirety of Mr. Price’s testimony for a true and

complete understanding of its substance.


admits that Mr. Price conferred with Mr. Thain concerning whether Merrill Lynch

believed it appropriate to make an intra-quarter disclosure during the fourth quarter, and

refers to the entirety of Mr. Hayward’s testimony for a true and complete understanding

of its substance.


admits that following the November 13, 2008 conversation, Mr. Mayopoulos, among

others, conducted an analysis of the disclosure-related issues raised by Bank of America,

and refers to the entirety of Mr. Mayopoulos’s testimony for a true and complete



to the entirety of Mr. Mayopoulos’s testimony for a true and complete understanding of

its substance.


admits that Mr. Belk sent Messrs. Price, Curl, and Mayopoulos an e-mail dated

November 19, 2008 with the subject line “FW: Re: Analysis,” and refers to the e-mail

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and the attachment thereto for a true and complete statement of their contents and to the

entirety of the testimony of Messrs. Price and Mayopoulos for a true and complete



admits that on November 18, 2008, certain employees of Bank of America consulted with

counsel, including General Counsel Timothy Mayopoulos, concerning any disclosure

obligation of Bank of America concerning Merrill Lynch’s preliminary, estimated, and

forecasted financial performance in the fourth quarter of 2008, and refers to the entirety

of Mr. Mayopoulos’s testimony for a true and complete understanding of its substance.


admits that Mr. Mayopoulos took notes during a November 18, 2008 meeting with Mr.

Price, among others, and refers to the notes of any such consultation for a true and

complete statement of their contents.


admits Mr. Mayopoulos and Mr. Herlihy spoke by telephone on November 18, 2008 and

that Mr. Curl provided testimony before the Office of the Attorney General of the State of

New York (the “NYAG”) on several occasions, and refers to the entirety of Mr. Curl’s




to the entirety of Mr. Herlihy’s testimony for a true and complete understanding of its

substance.

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to the entirety of Mr. Roth’s testimony for a true and complete understanding of its

substance.


admits that on November 20, 2008, Messrs. Price and Mayopoulos met in person, with

Messrs. Herlihy and Demmo attending by phone, and refers to the entirety of the

testimony of Messrs. Mayopoulos and Price for a true and complete understanding of its

substance.

Bank of America denies the allegations in footnote 2 to paragraph 94.


to the entirety of Mr. Herlihy’s testimony for a true and complete understanding of its

substance.



admits that on or about November 21, 2009, Mr. Price conferred with Mr. Thain

concerning whether Merrill Lynch believed it appropriate to make an intra-quarter

disclosure during the fourth quarter, and refers to the entirety of Mr. Price’s testimony for

a true and complete understanding of its substance.


admits that on November 13, 2008, Mr. Price had a meeting with Messrs. Cotty,

Hayward, Carlin, and Moser, among others, during which a number of topics were

discussed and during which Mr. Moser made a presentation concerning Merrill Lynch’s

goodwill, and avers that Bank of America and Merrill Lynch publicly disclosed, as part

20

of the Proxy Statement and elsewhere, that Merrill Lynch would perform an impairment

test for goodwill in the fourth quarter of 2008, which might result in an impairment to

goodwill; that the determination to write down goodwill was made in connection with the

preparation, review, or audit of financial statements and was not required to be disclosed

until Merrill Lynch made its next periodic report to the SEC; and that Bank of America

and the market generally were aware that as a result of accounting rules, Merrill Lynch’s

historical goodwill would be written off upon the closing of the Merger and that this was

disclosed in the Proxy Statement.



any allegations concerning Deloitte & Touche LLP, a third party, avers that Bank of

America and Merrill Lynch publicly disclosed, as part of the Proxy Statement and

elsewhere, that Merrill Lynch would perform an impairment test for goodwill in the

fourth quarter of 2008, which might result in an impairment to goodwill; that the

determination to write down goodwill was made in connection with the preparation,

review, or audit of financial statements and was not required to be disclosed until Merrill

Lynch made its next periodic report to the SEC; and that Bank of America and the market

generally were aware that as a result of accounting rules, goodwill would be written off

upon the closing of the Merger and that this was disclosed in the Proxy Statement, and

refers to the entirety of Thomas Kaylor’s testimony for a true and complete


100. Bank of America denies the allegations in paragraph 100, states

that it lacks knowledge and information sufficient to form a belief as to the truth of any

21

allegations concerning Deloitte & Touche LLP, a third party, and refers to the entirety of

the testimony of Messrs. Moser and Carlin for a true and complete understanding of its

substance.


admits that Mr. Moser sent to Mr. Chai and others an e-mail dated November 20, 2008

with the subject line “goodwill impairment” and that Merrill ultimately concluded that

the goodwill impairment for the fourth quarter would be approximately $2.3 billion, avers

that Bank of America and the market generally were aware that as a result of accounting

rules, Merrill Lynch’s historical goodwill would be written off upon the closing of the

Merger and that this was disclosed in the Proxy Statement, and refers to the e-mail

referenced in paragraph 101 for a true and complete statement of its contents.


admits that Ms. Meloth sent Mr. Moser and Allen Sekler an e-mail dated November 20,

2008 with the subject line “FW: Nov qtd results per request,” and refers to the November

20, 2008 e-mail and the reports referenced in paragraph 102 for a true and complete




sufficient to form a belief as to the truth of any allegations in paragraph 104.


sufficient to form a belief as to the truth of any allegations in paragraph 105, and refers to

the entirety of Mr. Graham’s testimony for a true and complete understanding of its

substance.

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admits that Mr. Moser raised the question of disclosure with Merrill Lynch’s in-house

counsel, and refers to the entirety of Mr. Moser’s testimony for a true and complete


107. Bank of America denies the allegations in paragraph 107, but

admits that Mr. Moser sought legal advice on disclosure from Merrill Lynch in-house

counsel Richard Alsop.




admits that Mr. Mayopoulos testified that he recalls a December 1, 2008 discussion with

Messrs. Price and Curl at which the MAC clause of the Merger Agreement was discussed

and that Mr. Price has a calendar entry reflecting a meeting with Messrs. Curl and

Mayopoulos on December 1, 2008, and refers to the entirety of Mr. Mayopoulos’s



admits that Mr. Mayopoulos testified that he recalls a December 1, 2008 discussion with

Messrs. Price and Curl at which the MAC clause of the Merger Agreement was discussed

and that Mr. Price has a calendar entry reflecting a meeting with Messrs. Curl and

Mayopoulos on December 1, 2008, and refers to the entirety of Mr. Mayopoulos’s


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112. Bank of America denies the allegations in paragraph 112, and

refers to the entirety of Mr. Price’s testimony for a true and complete understanding of its

substance.


refers to the entirety of Mr. Curl’s testimony for a true and complete understanding of its

substance.


admits that Mr. Curl testified before the NYAG on several occasions, and refers to the

entirety of Mr. Curl’s testimony for a true and complete understanding of its substance.

115. Bank of America states that the first sentence of paragraph 115

does not contain any factual allegations to which a response is necessary, and otherwise

denies the allegations in paragraph 115, including the allegations in the first sentence of

paragraph 115 to the extent any response to those allegations is necessary, and refers to

the entirety Mr. Thain’s testimony for a true and complete understanding of its substance.


admits that Mr. Cotty sent an e-mail to Mr. Price on December 1, 2008, with the subject

line “ML Q4 forecast” containing preliminary, estimated, and forecasted financial

information regarding Merrill Lynch’s fourth quarter performance, and refers to this e-

mail for a true and complete statement of its contents.


admits that Messrs. Thain, Lewis, Price, and Cotty met by telephone on or about

December 3, 2008 and that Mr. Chai testified that he recalls preparing Messrs. Thain and

24

Cotty for this telephone meeting, and refers to the entirety of Mr. Chai’s testimony for a

true and complete understanding of its substance.


admits that there is an e-mail from Mr. Cotty to Mr. Thain dated December 3, 2008 with

the subject line “Plan and Forecast for today’s call…..I plan on sending to Joe at 2:30”

and that there is an e-mail dated December 3, 2008 from Mr. Cotty to Mr. Price

forwarding this e-mail, and refers to these e-mails for a true and complete statement of

their contents.


admits that on December 3, 2008, Mr. Price received and made handwritten notes on a

report containing certain preliminary, estimated, and forecasted financial information

relating to Merrill Lynch’s financial performance in the fourth quarter of 2008, and refers

to the report referenced in paragraph 119 for a true and complete statement of its

contents.


admits that the participants on the December 3, 2008 conference call discussed certain

preliminary, estimated, and forecasted financial information relating to Merrill’s financial

performance in the fourth quarter of 2008, and refers to the entirety of Mr. Cotty’s



admits that a $3 billion contingency was incorporated into the December 3, 2008 forecast

during the evening of December 3, 2008 following a telephone conference that afternoon

between Messrs. Price and Lewis in Charlotte and Messrs. Thain and Cotty in New York

25

and that Mr. Price received and made handwritten notes on a copy of this December 3

forecast.



admits that Mr. Mayopoulos considered the issue of disclosure in November 2008 and

concluded that no disclosure was required and that Mr. Mayopoulos testified on various

occasions before the NYAG and Congress, and refers to the entirety of Mr.

Mayopoulos’s testimony for a true and complete understanding of its substance.


admits that Mr. Mayopoulos testified on various occasions before the NYAG and

Congress, and refers to the entirety of Mr. Mayopoulos’s testimony for a true and












any allegations concerning third parties, and admits that attorneys from Wachtell, Lipton,

26

Rosen & Katz have testified that they were not aware of the December 3, 2008 forecast

prior to the shareholder vote.


admits that Mr. Curl testified on various occasions before the NYAG, and refers to the



admits that Mr. Curl testified on various occasions before the NYAG, and refers to the



admits that both Messrs. Curl and Herlihy testified on various occasions before the

NYAG, and refers to the entirety of their testimony for a true and complete understanding

of its substance.


admits that on the morning of December 4, 2008, Mr. Cotty requested updated

information regarding the estimated results for November and that Mr. Hayward relayed

this request to Ms. Meloth.


admits that Ms. Meloth sent an e-mail to Messrs. Cotty and Hayward and others on

December 4, 2008 at 11:43 a.m. attaching an updated forecast and related documents (the

“December 4 Report”) and that Mr. Cotty forwarded Ms. Meloth’s e-mail to Mr. Price

and others by e-mail on December 4, 2008 at 11:47 a.m., and refers to these e-mails and

the attachments thereto for a true and complete statement of their contents.

27


refers to the December 4 Report for a true and complete statement of its contents.



admits that on December 5, 2008, shareholders of Merrill Lynch voted to approve the

Merger and shareholders of Bank of America voted to authorize the issuance of shares

necessary to effect the Merger.


admits that Mr. Carlin sent Mr. Cotty and others an e-mail on December 5, 2008 at 7:59

a.m., avers that that e-mail stated that “mark issues” were “still outstanding,” and refers

to that e-mail for a true and complete statement of its contents and to the entirety of Mr.

Hayward’s testimony for a true and complete understanding of its substance.


admits that Mr. Brown testified before the NYAG, and refers to the entirety of Mr.

Brown’s testimony for a true and complete understanding of its substance.


admits that Mr. Brown testified before the NYAG, and refers to the entirety of Mr.

Brown’s testimony for a true and complete understanding of its substance.


admits that Mr. Price testified before the NYAG on various occasions, and refers to the

entirety of Mr. Price’s testimony for a true and complete understanding of its substance.


28


admits that Bank of America referred to the first day of post-Merger operations as “Legal

Day One” and that, following the execution of the Merger Agreement, Bank of America

made efforts to synchronize Merrill Lynch’s closing process with Bank of America’s own

process, and states that it lacks knowledge or information sufficient to form a belief as to

the truth of the allegations regarding Merrill Lynch’s having called such efforts

“Accelerate the Close.”


admits that Bank of America wanted Merrill Lynch to be able to close its books as fast as

Bank of America did, and refers to the entirety of Mr. Cotty’s testimony for a true and



admits that Mr. Carlin sent an e-mail to Mr. Cotty and others on the morning of

December 5, 2008, and refers to that e-mail for a true and complete statement of its

contents.


admits that there was an e-mail exchange between Messrs. Cotty and Hayward on

December 5, 2008, and refers to these e-mails for a true and complete statement of their

contents.




29


admits that there is an e-mail from Ms. Meloth to Audrey Bommer and Mr. Fleming

dated December 6, 2008 at 2:11 p.m., on which Mr. Cotty and others are shown as having

been copied, with the subject line “Re: 2009 Budget – draft expense report” and an e-mail

from Ms. Meloth to Mr. Cotty forwarding this e-mail on December 6, 2008 at 5:12 p.m.,

and refers to these e-mails for a true and complete statement of their contents.


admits that there is an e-mail from Mr. Carlin to Mr. Cotty dated December 7, 2008 with

the subject line “FW: Prelim Nov 08 P&L Reports (as of 12/5),” and refers to this e-mail

for a true and complete statement of its contents.


admits that Bank of America held a meeting of its Board of Directors on December 9,

2008; that members of Mr. Price’s finance team, including Messrs. Cotty, Jeffrey Brown,

and Steve Brown, among others, assisted in the preparation of Mr. Price’s presentation to

the Bank of America Board of Directors; and that Mr. Cotty sent Mr. Thain an e-mail on

December 8, 2008 relating to Mr. Price’s presentation, and refers to this e-mail for a true

and complete statement of its contents.


admits that on December 8, 2008, Merrill Lynch’s MDCC voted to pay Merrill Lynch’s

employees bonuses with an aggregate value of $3.6 billion, and that Mr. Cotty forwarded

to Mr. Hayward an e-mail from Patrick McNeely attaching the Daily Net Revenue Report

12.8.08 (5:15 Flash), and refers to these e-mails and the attachments thereto for a true and


30


admits that the Bank of America Board of Directors met on December 9, 2008, and that

Mr. Price provided summary financial information at the meeting regarding, among other

things, Merrill Lynch’s projected financial performance for the fourth quarter of 2008,

and refers to the minutes of the meeting for a true and complete statement of their

contents.


admits that the Bank of America Board of Directors met on December 9, 2008, and that

Mr. Price provided summary financial information at the meeting regarding, among other

things, Merrill Lynch’s projected financial performance for the fourth quarter of 2008,

and refers to the entirety of Mr. Price’s testimony for a true and complete understanding

of its substance.


admits that the Bank of America Board of Directors met on December 9, 2008, that Mr.

Price provided summary financial information at the meeting regarding, among other

things, Merrill Lynch’s projected financial performance for the fourth quarter of 2008.


refers to the entirety of the Mr. Mayopoulos’s testimony for a true and complete



refers to the entirety of Mr. Mayopoulos’s testimony for a true and complete



31


admits that on December 10, 2008, Mr. Mayopoulos was informed for the first time that

his employment had been terminated, that he was accompanied to the executive parking

garage by an HR executive, and that his personal effects were returned to him at a later

time.


admits that Mr. Moynihan practiced law for many years, including as a partner at a well-

respected law firm; that Mr. Moynihan joined Bank of America in 2004 in connection

with Bank of America’s merger with FleetBoston Financial Corporation; and that Mr.

Moynihan held various leadership positions within Bank of America and was the head of

Global Corporate and Investment Banking shortly before being appointed General

Counsel to replace Mr. Mayopoulos in December 2008.


admits that Mr. Moynihan practiced law for many years, including as a partner at a well-

respected law firm; that Mr. Moynihan joined Bank of America in 2004 in connection

with Bank of America’s merger with FleetBoston Financial Corporation; that Mr.

Moynihan held various leadership positions within Bank of America and was the head of

Global Corporate and Investment Banking shortly before being appointed General

Counsel to replace Mr. Mayopoulos in December 2008; and that Mr. Moynihan’s bar

membership status was inactive at the time he replaced Mr. Mayopoulos.


admits that Mr. Moynihan was named General Counsel on December 10, 2008 and held

32

that position until he was named President of Global Banking and Global Wealth and

Investment Management on January 22, 2009.


admits that Mr. Mayopoulos’s employment was terminated on December 10, 2008, and

refers to the entirety of Mr. Mayopoulos’s Congressional testimony for a true and




admits that Mr. Lewis provided testimony on various occasions before the NYAG, and

refers to the entirety of Mr. Lewis’s testimony for a true and complete understanding of

its substance.


admits Mr. Lewis provided testimony before Congress, and refers to the entirety of Mr.

Lewis’s Congressional testimony for a true and complete understanding of its substance.


admits that Mr. Curl provided testimony on various occasions before the NYAG, and

refers to the entirety of Mr. Curl’s testimony for a true and complete understanding of its

substance.





its substance.

33



its substance.





admits that Ms. Meloth sent an e-mail to Mr. Cotty on December 11, 2008 at 6:17 p.m.

with the subject line “FW: Revenue Daily Pacing,” and refers to that e-mail and the

attachment thereto for a true and complete statement of their contents.


admits that Ms. Meloth sent Messrs. Cotty and Hayward an e-mail dated December 12,

2008 with the subject line “Standard Forecast Report,” which attached a revised forecast

as of the close of business December 10, 2008, and refers to that e-mail and the

attachment thereto for a true and complete statement of their contents.


refers to the entirety of the testimony of Messrs. Cotty and Hayward for a true and




of its substance.

34



of its substance.





admits that Mr. Cotty provided the December 12, 2008 forecast to Mr. Price that

afternoon; that Mr. Price contacted Mr. Curl that afternoon to discuss that forecast; and

that Mr. Curl then requested that Wachtell, Lipton, Rosen & Katz analyze whether or not

Bank of America had grounds to invoke the MAC clause and that Wachtell, Lipton,

Rosen & Katz thereafter conducted such an analysis, and refers to the entirety of Mr.

Curl’s testimony for a true and complete understanding of its substance.


admits that commencing on December 12, 2008 and for several days thereafter,

representatives of Bank of America, including, at certain times, Messrs. Lewis,

Moynihan, Price, and Curl, and representatives of Wachtell, Lipton, Rosen & Katz,

including Messrs. Herlihy, Roth, and Demmo, engaged in conversations concerning

whether or not Bank of America had grounds for invoking the MAC clause of the Merger

Agreement.



any allegations concerning communications that are solely internal to Wachtell, Lipton,

35

Rosen & Katz, admits that Mr. Roth took notes of a conversation with Mr. Demmo on

December 14, 2008 in the course of his representation of Bank of America in connection

with the Merger, and refers to Mr. Roth’s notes for a true and complete statement of their

contents and to the entirety of the testimony of Messrs. Roth and Moynihan for a true and



admits that on December 15, 2008, Messrs. Demmo, Herlihy, and Roth participated in a

telephone conference with Messrs. Price and Curl, states that it lacks knowledge and

information sufficient to form a belief as to the truth of any allegations concerning

communications that are solely internal to Wachtell, Lipton, Rosen & Katz, and refers to

Mr. Roth’s notes for a true and complete statement of their contents.


admits that Wachtell, Lipton, Rosen & Katz drafted talking points for Mr. Lewis and a

legal memorandum discussing the legal principles applicable to MAC disputes, and refers

to the documents referenced in paragraph 184 for a true and complete statement of their

contents.



its substance.


admits that during a telephone conference on December 15, 2008 among Messrs. Price,

Curl, Herlihy, Roth, and Demmo, there was discussion of renegotiating the Merger

36

Agreement and that Mr. Roth took notes during that telephone conference, and refers to

Mr. Roth’s notes for a true and complete statement of their contents.



admits that during a telephone conference on December 17, 2008, management of Bank

of America considered, in consultation with its counsel, whether there may be grounds

for invoking the MAC clause of the Merger Agreement and that Mr. Roth took notes

during that telephone conference, and refers to Mr. Roth’s notes for a true and complete




admits that Mr. Cotty sent Ms. Meloth an e-mail on December 16, 2008 at 8:07 p.m., and

refers to the e-mail referenced in paragraph 190 for a true and complete statement of its

contents.


admits that Mr. Cotty sent Ms. Meloth an e-mail on December 16, 2008, and refers to the

e-mail referenced in paragraph 191 for a true and complete statement of its contents.


admits that Messrs. Lewis, Price, and Moynihan met with Secretary Paulson and

Chairman Bernanke and other federal officials in Washington on the evening of

December 17, 2008 and that during this meeting, the participants discussed Merrill

Lynch’s financial condition and the invocation of the MAC clause.

37


admits that at the December 17, 2008 meeting with federal officials, among other things,

one or more federal officials suggested that Bank of America pause before invoking the

MAC clause in order to allow federal officials to analyze the situation and requested

further information from Bank of America concerning Merrill Lynch’s financial

condition.


admits that during the meeting in Washington on December 17, 2008 and in the days

following the meeting, Bank of America provided financial data concerning Merrill

Lynch’s fourth quarter forecast to Chairman Bernanke, including a report prepared by

Ms. Meloth as of the close of business December 10, 2008, which indicated that Merrill

Lynch was forecasting approximately $18 billion in total fourth quarter pretax losses, and

a document entitled “Merrill Lynch Summary of Legacy Exposure,” and refers to those

documents for a true and complete statement of their contents.


admits that on or about December 18, 2008, Mr. Price advised federal officials that

Merrill Lynch’s fourth quarter forecast as of the close of business December 10, 2008 did

not reflect the impact of several additional items, totaling $3.6 billion, which included an

anticipated goodwill writeoff of $2.3 billion.



admits that on December 18 and 19, 2008, management of Bank of America had further

discussions with federal officials concerning Merrill Lynch’s financial condition and the

38

possibility of Bank of America’s invoking the MAC clause of the Merger Agreement,

and refers to the entirety of Mr. Price’s testimony for a true and complete understanding

of its substance.


admits that during the December 19, 2008 telephone conference with federal officials

including Secretary Paulson and Chairman Bernanke, Mr. Lewis stated that Merrill

Lynch’s fourth quarter losses were now forecasted to reach up to $21.4 billion pretax,

which would include the $2.3 goodwill impairment and other items.


admits that during the telephone conference with federal officials on December 19, 2008,

Mr. Lewis discussed the options being considered by Bank of America, including

invoking the MAC clause, and that the parties discussed the possibility of completing the

transaction with federal financial assistance.


admits that in a telephone conference with federal officials on December 19, 2008, Mr.

Roth discussed Bank of America’s potential grounds for invoking the MAC clause in the

Merger Agreement and that Ms. Brenner wrote an e-mail to Mr. Moynihan about the

conference, and refers to that e-mail for a true and complete statement of its contents.


admits that Mr. Lewis had a telephone conversation with Secretary Paulson on December

21, 2008 and that Mr. Lewis’s talking points for the December 22, 2008 meeting of the

Bank of America Board of Directors reflect aspects of that conversation, and refers to

that document for a true and complete statement of its contents.

39


admits that on or about December 19, 2008, Merrill Lynch informed its employees what

they would receive in VICP for 2008; that Merrill Lynch ultimately paid approximately

$3.6 billion in aggregate value of both cash and stock pursuant to the VICP for 2008; that

149 employees were awarded $3 million or more; that thirty-two employees were

awarded $6 million or more; and that fourteen were awarded $10 million or more.


sufficient to form a belief as to the truth of any allegations in paragraph 203, and

otherwise denies the allegations in paragraph 203.













40






any allegations concerning the Federal Reserve.


sufficient to form a belief as to the truth of any allegations in paragraph 210, except

admits that during a telephone conversation with Mr. Lewis on December 21, 2008,

Secretary Paulson told Mr. Lewis that the Bank of America Board of Directors and senior

management could be removed in the event that Bank of America invoked the MAC

clause of the Merger Agreement.


admits that Mr. Lewis provided testimony before the NYAG on various occasions, and


its substance.


admits that Mr. Lewis provided testimony before the NYAG on various occasions, and


its substance.


admits that Bank of America has a Code of Ethics, and refers to the Code of Ethics for a


41



admits that on December 21, 2008, Mr. Lewis had a telephone conversation with

Chairman Bernanke in which Chairman Bernanke stated, among other things, that the

federal government would negotiate, between the time of the Merger closing and Bank of

America’s earnings announcement in January 2009, the terms of an agreement for federal

assistance in the form of a capital infusion and loss sharing.


admits that Messrs. Lewis and Price testified before the NYAG on various occasions, and

refers to the entirety of their testimony for a true and complete understanding of its

substance.



admits that Mr. Lewis testified before the NYAG on various occasions, and refers to the

entirety of Mr. Lewis’s testimony for a true and complete understanding of its substance.


admits that Mr. Lewis testified before the NYAG on various occasions, refers to the e-

mail written by Mr. Lewis referenced in paragraph 219 for a true and complete statement

of its contents, and refers to the entirety of Mr. Lewis’s testimony for a true and complete



admits that Messrs. Lewis and Price testified before the NYAG on various occasions, and

42

refers to the entirety of their testimony for a true and complete understanding of its

substance.



any allegations concerning Chairman Bernanke’s communications with the Federal

Reserve’s General Counsel.






admits that on January 16, 2009, Bank of America issued a press release reporting, for the

quarter ending December 31, 2008, net losses of $1.79 billion, a diluted loss per common

share of $0.48, $15.31 billion in after-tax losses by Merrill Lynch, and the cutting of

Bank of America’s quarterly dividend to $0.01 per share, and refers to the January 16,

2009 press release for a true and complete statement of its contents.


admits that, as disclosed in Bank of America’s January 16, 2009 press release, Merrill

Lynch reported credit valuation adjustments related to financial guarantor exposures of

$3.22 billion, a goodwill impairment of $2.31 billion, leveraged loan writedowns of

$1.92 billion, $1.16 billion in the U.S. Bank Investment Securities Portfolio writedowns,

and commercial real estate writedowns of $1.13 billion, and refers to the January 16,

2009 press release for a true and complete statement of its contents.

43


admits that Bank of America directors Thomas May and Charles Gifford exchanged

several e-mails during the January 15, 2009 meeting of Bank of America’s Board of

Directors, and refers to those e-mails for a true and complete statement of their contents.



any allegations concerning any third parties, admits that in January 2009, Moody’s and

Fitch downgraded the credit rating of Bank of America and that Bank of America’s stock

price declined at times in January 2009, and refers to the reports in which Moody’s and

Fitch downgraded the credit rating of Bank of America for a true and complete statement

of their contents.



value of both cash and stock in VICP for 2008 and that the cash portion of the VICP was

paid before the year ended.



value of both cash and stock in VICP for 2008, and avers that Bank of America and

Merrill Lynch publicly disclosed, as part of the Proxy Statement and elsewhere, the

amount of overall compensation expense that Merrill Lynch had accrued through the

third quarter of 2008; that numerous media outlets, in newspapers, on television, and over

the internet, reported that Merrill Lynch was expected to pay multi-billions of dollars in

44

year-end incentive compensation for 2008; and that the Proxy Statement expressly

disclosed Merrill Lynch’s intention and/or commitment to pay incentive compensation.


admits that Merrill Lynch paid approximately $3.6 billion in aggregate value of both cash

and stock in VICP for 2008 and that Merrill Lynch paid VICP bonuses (both

discretionary and guaranteed) for 2008 of $3 million or more to 149 employees, thirty-

two of whom received $6 million or more and fourteen of whom received $10 million or

more, and avers that Bank of America and Merrill Lynch publicly disclosed, as part of

the Proxy Statement and elsewhere, the amount of overall compensation expense that

Merrill Lynch had accrued through the third quarter of 2008; that numerous media outlets

in newspapers, on television, and over the internet, reported that Merrill Lynch was



commitment to pay incentive compensation.


232. Bank of America denies the allegations in paragraph 232, avers

that the criteria utilized by Merrill Lynch in determining compensation were fully

disclosed, and refers to the entirety of Mr. Finnegan’s testimony for a true and complete




disclosed, and refers to Merrill Lynch’s March 14, 2008 proxy statement for a true and

complete statement of its contents.

45



disclosed, and refers to Merrill Lynch’s March 14, 2008 proxy statement for a true and



refers to the entirety of Mr. Finnegan’s testimony for a true and complete understanding

of its substance.


sufficient to form a belief as to the truth of any allegations in paragraph 236, except

admits that on November 11, 2008, Merrill Lynch management presented to the MDCC a

calendar under which it was to review and approve bonus pools on December 8, 2008,

and refers to Mr. Finnegan’s testimony for a true and complete understanding of its

substance.


admits that Mr. Lewis learned from Mr. Alphin that Merrill Lynch intended to pay certain

incentive compensation before the end of the year and that Mr. Lewis delegated

responsibility for discussions with Merrill Lynch relating to compensation to members of

Bank of America’s senior staff, including Mr. Alphin and Ms. Smith.


admits that the Merger Agreement provided that the form and terms and conditions of the

long-term incentive awards granted under the VICP and the allocation thereof among

eligible employees was to be determined by Merrill Lynch in consultation with Bank of

America.

46


admits that Bank of America exercised its right of consultation with respect to the

allocation of VICP awards among eligible employees, and refers to the entirety of Mr.

Thain’s testimony for a true and complete statement of its contents.



value of both cash and stock in VICP for 2008, and refers to the entirety of Mr. Lewis’s



sufficient to form a belief as to the truth of any allegations in paragraph 241, and refers to

the entirety of Mr. Finnegan’s testimony for a true and complete understanding of its

substance.


avers that Bank of America and Merrill Lynch publicly disclosed, as part of the Proxy








that it is Bank of America’s understanding that the MDCC had not yet determined VICP

bonuses for 2008 at the time that Merrill Lynch provided its letters to the New York

47

Attorney General and the United States House Committee on Oversight and Government

Reform, and refers to these letters for a true and complete statement of their contents.


admits that it is Bank of America’s understanding that Merrill Lynch informed its

employees of their 2008 VICP bonuses on or about December 19, 2008.


avers that Bank of America and Merrill Lynch publicly disclosed, as part of the Proxy










admits that Mr. Lewis discussed the Merger during a press conference on September 15,

2008, and refers to the cited transcript of that press conference for a true and complete



admits that Mr. Lewis discussed the Merger during a press conference on September 15,

2008, and refers to the cited transcript of that press conference for a true and complete


48



admits that Mr. Lewis discussed due diligence during the September 15, 2008 press

conference, and refers to the cited transcript of that press conference for a true and



admits that Messrs. Lewis and Price discussed due diligence during a conference call for

investors on September 15, 2008, and refers to the cited transcript of that investor

conference call for a true and complete statement of its contents.










admits that Mr. Lewis discussed due diligence during a conference call for investors on

September 15, 2008, and refers to the cited transcript of that investor conference call for a


49


refers to the cited transcript of the September 15, 2008 investor conference call for a true

and complete statement of its contents.




admits that Bank of America conducted a secondary offering on October 7, 2008 in

which it raised approximately $9.76 billion and that Mr. Lewis participated in an earnings

call on October 6, 2008, and refers to the transcript of that call for a true and complete



admits that Messrs. Lewis and Price participated in the October 6, 2008 earnings call, and

refers to the transcript of that call for a true and complete statement of its contents.


admits that on November 3, 2008, Bank of America and Merrill Lynch filed the Proxy

Statement dated October 31, 2008 that sought, among other things, Merrill Lynch

shareholder approval of the Merger and Bank of America shareholder approval of the

issuance of shares of Bank of America common stock necessary to consummate the

merger; that the Proxy Statement contained Merrill Lynch’s unaudited interim earnings

up to June 27, 2008; that the Proxy Statement incorporated by reference various SEC

filings, including Forms 10-Q for the third quarter of 2008; and that Merrill Lynch’s 10-

Q disclosed a pretax loss from continuing operations of approximately $8.251 billion and

a net loss from continuing operations of approximately $5.12 billion during the third

50

quarter of 2008, and refers to the SEC filings cited in paragraph 260 for a true and



admits that on November 4, 2008, Ms. Meloth sent an e-mail to Mr. Cotty, with a copy to

Messrs. Carlin and Hayward, annexi

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