The California pension funds--which together own 21 million Bank of America shares, and both of which are active in commercial real estate nationwide--join eight other shareholder lawsuits filed against the Charlotte, NC bank. CalPERS says filing for lead plaintiff enables lawsuits to be consolidated and managed effectively.

Geoffrey Miller, New York University law professor, tells GlobeSt.com that CalPERS frequently acts as a lead plaintiff because "under the governing statute it is quite often the party with the largest financial stake in the litigation, and because it has a bit of an activist stance towards managerial issues."

In a statement, CalPERS board president Rob Feckner says "shareowners did not have complete or accurate information prior to approving the merger and the failure of Bank of America to provide it sent the stock price down dramatically," adding that bonuses paid to Merrill executives were not disclosed to shareholders prior to the merger which compounded the harm done."

Miller tells GlobeSt.com that cases alleging false statements in proxy information sent to shareholders in connection to votes on mergers are common, but the nation's financial crisis issue puts a special spin on this one. "Under normal conditions, this could be a pretty strong case, but these are not normal times," he says. "The courts are sensitive about putting the banks under more stress."

Further evidence of frustration with BofA arose this past Monday when a Houston investment bank, Finger Interests Number One Ltd., filed a notice of exempt solicitation with the Securities and Exchange Commission that urges BofA shareholders to vote against re-electing three bank board members including current chair and CEO Kenneth Lewis at their April 27 meeting. Finger's group also filed a shareholder lawsuit back in January after BofA revealed deeper losses by Merrill.

Finger's 1.1-million BofA shares extend back to the 1996 sale of Jerry Finger's Charter Bancshares to NationsBank, which was later acquired by Bank of America. Over the past year, the value of Finger's' BofA shares fell from $39.6 million to $6.8 million.

In Finger Interests' suit, "we made precisely the same allegations as CalPERS and CalSTRS: that the board and management of BofA withheld material information related to the condition of Merrill Lynch prior to the Dec. 5, 2008 shareholder vote," Jonathan S. Finger, partner at the firm tells GlobeSt.com.

Finger tells GlobeSt.com that Bank of America's "current board and management are focused on size, footprint and market share--rather than protecting and building shareholder value."

In the eight years since Lewis assumed the helm, BofA has expanded its footprint, becoming the largest financial institution in the nation. In 2004, it bought FleetBoston Financial, the nation's seventh largest bank, for $47 billion in cash and stock. A year later, BofA bought credit card company MBNA for $35 billion in cash and stock, giving the combined companies 40 million US accounts and $140 billion in outstanding balances. In 2006, BofA purchased the United States Trust Co. for $3.3-billion from Charles Schwab Corp. and then in 2007, it bought LaSalle Bank Corp. from the Netherlands' ABN AMRO for $21 billion.

Still, Finger stresses many of those acquisitions were in the banking business, which he says tend to be more straightforward than acquiring companies such as Merrill or Countrywide.

Last July, Bank of America was finalizing its $4.1-billion purchase of Countrywide Financial. On Sept. 15, despite $45 billion in losses and write-downs and an estimated $44 billion in real estate-related securities still on Merrill's books, BofA paid $50 billion for the investment banking firm.

"The BofA acquisition of Merrill was at least partly under the encouragement of the government, which was anxious to organize an acquisition as soon as possible," Miller tells GlobeSt.com

Interestingly, when Lewis assumed the helm in 2001, he was widely seen as less focused on acquisition expansion than his predecessor Hugh McColl had been. Further, it was also widely reported that Lewis had a longstanding love/hate relationship with investment banking as an arm of commercial banking profit.

For example, in October 2007 after blaming disappointing earnings on BofA's newer, but poorly performing investment banking units, Ken Lewis scoffed at suggestions of taking on a more "experienced" investment bank firm through a merger, saying "I've had all the fun I can have in investment banking," according to a report from the International Herald Tribune. Finger tells GlobeSt.com, "there was an expectation in 2001 that Lewis would be focused on consolidating the acquisitions made by his predecessor, and for a short period of time that was the case."

Alleging that securities laws have been violated, Finger says BofA failed to structure the Merrill deal properly in terms of price and other protections for shareholders. He says when the massive Merrill losses came to light, "they failed to act to protect shareholders by restructuring the transaction, or walking away from the deal."

"Our campaign seeks to change the corporate culture so that there is a focus on risk-return to shareholders when looking at acquisitions or other transactions affecting shareholders," says Finger. He adds that he and his group would like to improve a culture of transparency and disclosure to both shareholders and regulatory authorities. A BofA spokeswoman tells Globest.com the bank is "not commenting."

Instant Insights /

CalPERS, CalSTRS Take BofA to Court

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