Sklar v. Bank of America Corp.

258 F.R.D. 260, 2009 U.S. Dist. LEXIS 56009
CourtDistrict Court, S.D. New York
DecidedJune 30, 2009
DocketNo. 09 MDL 2058(DC); No. 09 Civ. 580(DC)
StatusPublished
Cited by38 cases

This text of 258 F.R.D. 260 (Sklar v. Bank of America Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sklar v. Bank of America Corp., 258 F.R.D. 260, 2009 U.S. Dist. LEXIS 56009 (S.D.N.Y. 2009).

Opinion

OPINION

CHIN, District Judge.

Before this Court are thirty cases relating to the merger of Bank of America Corporation (“BofA”) with Merrill Lynch & Co., Inc. (“Merrill Lynch”) and public disclosures made in connection with the transaction. These putative class actions include: (1) actions based on alleged violations of the securities laws, including Sections 10(b) and 14(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rules 10b-5 and 14a-9 thereunder, respectively (the “securities actions”); 1 (2) derivative actions alleging violations of common law fiduciary duties and Section 14 of the Exchange Act (the “derivative actions”);2 and (3) actions asserting [266]*266claims under the Employee Retirement Income and Security Act (“ERISA”) on behalf of participants in the BofA 401(k) plan that held investments in BofA stock (the “ERISA actions”).3

Motions have been made pursuant to Rule 42(a) of the Federal Rules of Civil Procedure for the consolidation of the cases into three consolidated actions: securities actions; derivative actions; and ERISA actions. Motions have also been made for the appointment of lead plaintiff and lead counsel in each of the three sets of actions, pursuant to 15 U.S.C. § 78u-4(a)(3)(B) and Fed.R.Civ.P. 23.

For the reasons set forth below, the securities actions are consolidated, the group known as the Public Pension Funds is appointed lead plaintiff in the securities actions, and its choice for lead counsel is approved. The derivative actions are also consolidated, the group known as the Institutional Group is appointed interim lead plaintiff, and its attorneys Kahn Swick & Foti (“KSF”)4 and Saxena White P.A. (“Saxena White”) are appointed interim co-lead counsel. Finally, the ERISA actions are also consolidated and the law firms of Harwood Feffer LLP (“Har-wood Feffer”), Squitieri & Fearon, LLP (“Squitieri & Fearon”), and Hagens Berman Sobol Shapiro LLP (“Hagens Berman”) are appointed interim co-lead counsel. All other motions pending before the Court related to these actions are denied.

BACKGROUND

A. The Facts

All the actions arise from BofA’s recent merger with Merrill Lynch and allege the same core set of facts.

On September 15, 2008, BofA announced an agreement (the “Agreement”) to merge with Merrill Lynch in a $50 billion all-stock transaction (the “Merger”). Discussions between BofA and Merrill Lynch about the Merger had commenced only a short while before the Agreement was announced. The terms of the Merger were set forth in a Joint Proxy Statement (the “Proxy Statement”) filed with the U.S. Securities and Exchange Commission (the “SEC”) on November 3, 2008, and mailed to all BofA shareholders of record as of October 10, 2008. The Proxy Statement incorporated by reference documents filed by BofA and Merrill Lynch with the SEC, including Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. The Proxy Statement (and documents incorporated by reference) are alleged to have understated, concealed, or otherwise failed to disclose Merrill Lynch’s true financial condition.

BofA shareholders approved the Merger following a vote held December 5, 2008. Pursuant to the terms of the Agreement, Merrill Lynch shareholders would receive 0.8595 shares of BofA stock for each of their shares, representing a value of approximately $29 per Merrill Lynch share. The transaction closed on January 1, 2009. Before the transaction closed, however, BofA officers and directors are alleged to have learned about Merrill Lynch’s heavy 2008 losses and the deterioration of its financial condition, but failed to disclose such information or supplement or amend the Proxy Statement. BofA and Merrill Lynch officers and directors are also alleged to have paid themselves substantial bonuses. BofA required additional funding and financial guarantees from federal government officials to complete its acquisition of Merrill Lynch.

Facts regarding Merrill Lynch’s dire financial condition began to emerge in January 2009. Following these disclosures, the market price of BofA common stock fell to $5.10 [267]*267per share as of January 20, 2009, a decline of 50 percent from the prior week.

B. The Securities Actions

The securities actions assert two primary legal claims: (1) violations of Section 14(a) of the Exchange Act, 15 U.S.C. § 78n(a), and (2) violations of Sections 10(b) of the Exchange Act, 15 U.S.C. § 78j(b).5

Plaintiffs’ claims under Section 14(a) are brought on behalf of persons who owned BofA shares on the October 10, 2008 record date and were entitled to vote on the Merger. Plaintiffs allege that the Proxy Statement setting forth the terms of the Merger “contained material misrepresentations and omitted to disclose true facts relevant to the Merger,” including material facts about Merrill’s business, financial condition, and the substantial risks associated with Merrill’s assets. (SMar Compl. ¶¶ 2, 49).

The Section 10(b) claims are brought on behalf of persons who purchased or otherwise acquired BofA stock during the alleged class period. Plaintiffs allege that BofA and its officers made false and/or misleading statements about the financial health of BofA and Merrill, such that class members paid artificially inflated prices for BofA common stock.

C. The Derivative Actions

The derivative actions are brought under Federal Rule of Civil Procedure 23.1 on behalf of BofA. Some of them are also brought derivatively on behalf of Merrill Lynch. The actions name BofA officers and directors as defendants; some also name as defendants Merrill Lynch officers and directors and financial services firms who provided advisory services related to the merger. Defendants are alleged to have breached their fiduciary duties to their respective company and/or aided and abetted one another in breaching their fiduciary duties. Plaintiffs also bring related common law claims for, inter alia, unjust enrichment and waste of corporate assets, as well as claims under Sections 14(a) and 10(b) of the Exchange Act.

D. The ERISA Actions

The ERISA actions are brought pursuant to Section 502 of ERISA, 29 U.S.C. § 1132, against fiduciaries of the BofA 401(k) Plan (the “Plan”), which covers all BofA and BofA subsidiary employees. Plaintiffs allege that the Plan’s fiduciaries invested in BofA common stock, even though they knew or should have known that the financial health of BofA was at serious risk due to its acquisition of Merrill Lynch and its January 2008 acquisition of the fast-deteriorating Countrywide Financial Corporation.

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258 F.R.D. 260, 2009 U.S. Dist. LEXIS 56009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sklar-v-bank-of-america-corp-nysd-2009.