After news broke yesterday that the SEC had reached a $33 million settlement with Bank of America for misleading investors about billions in Merrill Lynch bonuses, I wondered how the press (beyond the breaking news reports) would cover the story, which raised a couple of intriguing angles.
My first thought, like Felix Salmon’s, was that $33 million is barely even a slap on the wrist. Pay out $3.6 billion in bonuses for a job well done (losing $27 billion in one year, on top of losing $7.8 billion in 2007), and get hit with a 0.92 percent “tax,” as Salmon calculated. Not bad for the bankers.
Because that $33 million is to pay off the government from going after a very serious charge: That Bank of America lied to its shareholders about the impending bonuses, which would after all be paid out of their money, and more aptly—ours.
So there are two immediately obvious storylines here: Why such a small fine for such a big offense, and how the hell does Ken Lewis still have a job?
The Wall Street Journal’s A1 story is disappointing. It mostly pussyfoots around the fact that Lewis’s job is in peril and it doesn’t mention at all the idea that the $33 million fine isn’t exactly going to make future Wall Street wrongdoers think twice before acting.
It doesn’t ignore the Lewis angle—there’s lots here about the management shuffle going on behind the scenes—it just doesn’t step out and tell readers point-blank what it is. This is the closest it comes to doing so:
The settlement marks a new low point for Mr. Lewis, a man once considered one of the industry’s best deal makers.
That’s fine, but wouldn’t it have been better to just say “the settlement puts Lewis’s job in jeopardy, now that he’s copped to misleading shareholders”? The Journal story essentially forces its readers to read between the lines. Though most will be able to figure the storyline out, why do that?
The New York Times’s story is somewhat better, noting in the third paragraph that “The developments once again focus an uncomfortable spotlight on Mr. Lewis” and reporting that an investor group used the development to reiterate its call for his sacking.
The Times is also far better at writing what the problem here was:
The S.E.C.’s lawsuit centers on statements Bank of America made in its proxy statement about the Merrill deal, which was announced last Sept. 15. The bank, one of the nation’s largest, told its investors in the proxy on Nov. 3 that Merrill had agreed not to pay year-end performance bonuses or other incentive pay before closing the deal without Bank of America’s consent.
But, unknown to investors, Bank of America had already agreed that Merrill could pay up to $5.8 billion in year-end compensation to employees, the S.E.C. said in its complaint, which was filed in federal court in New York.
Here’s the Journal’s description:
The SEC complaint, filed Monday in U.S. District Court in New York, found fault with proxy documents that Bank of America and Merrill sent to their respective shareholders in November 2008 to vote on the $50 billion takeover. The SEC said the documents show Merrill wouldn’t pay year-end bonuses or other compensation before the deal closed without Bank of America’s consent. The bank’s view is that the proxy didn’t state Merrill bonuses would go unpaid and that it was well known that Merrill had been holding money for year-end awards, according to people familiar with the bank’s thinking on the matter.
The SEC complaint said Bank of America had already “contractually authorized” Merrill to pay up to $5.8 billion in bonuses, or 12% of the total deal price.
Which would you rather read?
Both, however, are good to note that this is hardly the end of Bank of America’s woes. It also obviously withheld material information from its shareholders about Merrill Lynch’s deteriorating financials, waiting until several days after the vote was approved to seek help from the feds.