Colin Barr

Following the money in banking, economics, and Washington

Ex-BofA chief denies fraud claim

August 20, 2010: 3:59 PM ET

Ken Lewis shot back at New York's attorney general, saying his fraud suit against Lewis "distorts" the record.

Lawyers for the former Bank of America (BAC) chief made the comments in legal papers filed Wednesday with New York State Supreme Court.

Defends Merrill deal, again

New York Attorney General Andrew Cuomo is suing Lewis and BofA's consumer banking chief, Joe Price, over their actions as the bank prepared to take over a faltering rival.

Cuomo sued Lewis and Price in February, alleging that they hid massive losses from Bank of America shareholders as they prepared in December 2008 to vote on BofA's planned acquisition of the struggling investment bank.

Cuomo contended that Lewis and Price, who was chief financial officer at the time, also wrongly scored $20 billion in bailout money for the bank by claiming they would seek to have the merger undone without federal help. The special inspector general for the Troubled Asset Relief Program, Neil Barofsky, joined Cuomo at his Feb. 4 press conference announcing the suit.

The lawsuit, which was filed the same day the Securities and Exchange Commission settled its disclosure case against Bank of America for $150 million, didn't specify what damages it sought.

But Lewis' attorneys at Debevoise & Plimpton say the attorney general's case against Lewis "is both implausible and internally inconsistent." They contend it seeks to scapegoat Lewis for a crisis that caused investors billions of dollars of losses, without showing any actual wrongdoing by Lewis.

"Some have looked to assign blame for every aspect of the financial crisis, even where there is no evidence of misconduct," the filing says. "This case is a product of that dynamic and does not withstand either legal or factual scrutiny."

Price, who is being defended by the firm Baker Botts, calls "absurd" the allegation that Lewis and Price misled the government to get TARP money. He adds that he acted "precisely as a regulator should hope a chief financial officer of a financial institution would act" when presented with forecasts showing large losses at Merrill.

Lewis and Price also defended the deal as helping to stave off the worst of the financial crisis at the time and to bolster Bank of America's profits since. Lewis, who was forced out of the bank by shareholders last year at a time when there was considerable unhappiness over the deal, can't help but try a bit of image-polishing in the filing.

"In short, the Merrill Merger has been an unmitigated financial and strategic success," his response says.

A spokesman for Cuomo's office told the Wall Street Journal the filings "do nothing to change this office's view of the case." BofA shares were down 1%.

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Colin Barr
Colin Barr
Senior Writer, Fortune

Colin Barr has covered finance for Fortune.com since November 2007. Previously he was a writer and editor for TheStreet.com, winning a 2006 Society of American Business Editors and Writers award for "The Five Dumbest Things on Wall Street," and for Dow Jones Newswires. He is a 1991 graduate of Penn State and lives in Port Washington, N.Y., with his wife Meena Bose and their two kids.

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