Last week’s announcement that Bank of America was going to pay $2.4 billion in a shareholders’ class-action suit brought as a result of the bank’s disastrous 2008 purchase of Merrill Lynch reminds me that I wish I could read something explaining who actually benefits (other than the plaintiffs’ lawyers) when massive shareholder suits like these are settled or get decided for the plaintiffs. More important, who actually pays?
Dispatches like this one did a good job of explaining what the claims were - that BofA and Merrill Lynch executives hid the nature of Merrill Lynch’s near-total meltdown as BofA shareholders were being asked to approve the merger. And some, such as this New York Times story, provided a snapshot of who will get the settlement money: “those who owned Bank of America shares or call options from September 2008 to January 2009,” which was the period that began when the deal was announced and ended when it was voted on by the shareholders.
But that leaves lots of questions. A shareholders’ suit is supposedly brought on behalf of shareholders who own a company. Yet the prime defendant is the company. So it is the company that pays the settlement, which would mean that the shareholders’ assets are being used to pay the shareholders.
Of course, if I owned shares between September 2008 and January 2009 and sold them later in January 2009, I’d only be on the receiving end. But if I still own the shares, wouldn’t I be paying myself with my own assets (and with the plaintiffs’ lawyers taking their cut on the way through this round trip)?
More important, it is the company’s lead executives, such as then-BofA CEO Kenneth Lewis, who allegedly misled the shareholders. They are also defendants in these cases. But I haven’t read anything about them paying anything. Did they? Or did the company indemnify them from such suits and/or provide company-paid insurance to cover any personal liability? Did the company or company-paid insurance cover their legal fees? If so, then what’s the point of suing them?
And, as long as we’re talking about harm done to shareholders, why wouldn’t we now see a new, post-settlement shareholders’ suit not against the company but targeted only at Lewis and some of his former colleagues who got Bank of America into this jam in the first place and just caused it to pay out $2.4 billion? (The plaintiffs here could be any current shareholders, because they are the ones who are writing the $2.4 billion check.) Again, did the company indemnify Lewis and other executives against shareholder suits, meaning that if a shareholder now sues Lewis over this $2.4 billion settlement, the shareholder is once again only suing himself?
Can someone please sort this out?