The Biz Press’s Incomplete (Print) Efforts on BofA

But a Journal blog gets it right

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.

The Financial Times story is no great shakes, either. It gets to neither the Lewis-on-the-ropes angle nor the $33 million-is-a-slap-on-the-wrist-one. Then again, being the FT, its reporters only had 419 words to play with.

Bloomberg’s story quotes someone up high saying that Lewis is likely to be gone “sooner rather than later.” Fine, if a little weak tea. Again, though, no talk about the $33 million fine being disproportionately small.

But there is one piece that gets it right, and it was posted by my old pal Michael Corkery online yesterday afternoon at the WSJ’s Deal Journal blog. Here’s the lede:

By some measures, the $33 million fine Bank of American agreed to pay the Securities and Exchange Commission to settle charges related to Merrill Lynch bonuses doesn’t fit the alleged crime.

Consider that the four highest paid Merrill executives were paid a combined $121 million in 2008, nearly four times the settlement. The SEC fine also seems measly compared with the $50 million that New York Attorney General forced American International Group to pay back of the total $80 million it doled out in retention bonuses in 2008.

But the real damage to BofA isn’t the monetary size of the SEC fine, but rather its impact on the reputation of the bank’s embattled chief executive, Ken Lewis. The settlement exposes another instance in which Lewis tried to pass the buck for the fallout from BofA’s $50 billion acquisition of Merrill Lynch, which was completed in January.

That’s just about note-perfect, and it’s not suffocated by newspaper-ese like the paper’s page-one effort or muddled by thinking like this from the print story (the only discussion of the severity of the penalty is to say it’s “steep”!):

The $33 million payment is steep for disclosure-related cases where fraud isn’t alleged. In 2004, Wachovia Corp. agreed to a $37 million settlement of allegations that it didn’t sufficiently disclose stock purchases related to a takeover, among other matters.

And Corkery brings up another excellent point I didn’t see anywhere else in the outlets mentioned above: This raises the likelihood that Ken Lewis lied to Congress in February.

That would seem to contradict Lewis’ testimony in Congress in February 2009, shortly after the deal was finalized:

“They were a public company until the first of the year,’” he said, speaking of Merrill. “They had a separate board, separate compensation committee, and we had no authority to tell them what to do just urged them what to do.”

Lying to Congress is bad. Bad!

But you won’t find this good piece of analysis in the newspaper—not even stuffed inside the Money & Investing section, which sometimes runs best-of-WSJ-blog columns. Why not?

The problem with that is deeper than you might suspect. Many more people will read the Journal’s lackluster effort on A1 than will see this blog post on WSJ Online. If my calculations last week were correct (and nobody’s really challenged them) some 95 to 98 percent of all time spent reading The Wall Street Journal is spent with the print newspaper.

The small minority of readers who see Corkery’s piece are far better served than the large majority of those who read the newspaper.

That’s a shame.

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Ryan Chittum is a former Wall Street Journal reporter, and deputy editor of The Audit, CJR's business section. If you see notable business journalism, give him a heads-up at Follow him on Twitter at @ryanchittum.