Barroway Topaz is serving as co-lead counsel in this securities fraud class action arising out of the merger between Bank of America Corp. (“BoA”) and Merrill Lynch & Co (“Merrill”) announced on September 15, 2008 and which closed on January 1, 2009.  The case is pending in the Southern District of New York before the Honorable Denny Chin and is brought on behalf of all persons or entities who (i) purchased or otherwise acquired the common stock or certain preferred securities of BoA between September 15, 2008 and January 21, 2009; (ii) held BoA common stock or 7% Cumulative Redeemable Preferred Stock, Series B as of October 10, 2008, and were entitled to vote on the merger between BoA and Merrill; or (iii) purchased BoA common stock issued under the Registration Statement and Prospectus for the $10 billion offering of BoA common stock that occurred on or about October 7, 2008.  On September 25, 2009, Lead Plaintiffs filed their Consolidated Amended Class Action Complaint (“CAC”).  The CAC names as defendants BoA, Merrill, Kenneth J. Lewis, BoA’s CEO and Chairman during the Class Period, Joseph Price, BoA’s CFO, Neil Cotty, BoA’s Chief Accounting Officer and Merrill’s interim CFO, John Thain, Merrill’s CEO, the BoA Board of Directors, and Banc of America Securities and Merrill Lynch Pierce Fenner Smith & Co., the underwriters for BoA’s $10 billion secondary stock offering. 

The CAC alleges that the defendants violated the federal securities laws by failing to disclose, at any time prior to the close of the Merger, the following highly material facts:  (1) during the Merger negotiations, BoA and Merrill had secretly agreed to allow Merrill to pay, on an accelerated basis and prior to the close of the merger, up to $5.8 billion in bonuses to its executives and employees -- an amount which equaled 12% of the value of the Merger and 30% of Merrill’s shareholder equity; (2) Merrill had suffered losses in excess of $15 billion during October and November 2008 alone -- losses which were so severe that they caused senior BoA officers to internally debate invoking the material adverse change clause (“MAC”) in the Merger agreement prior to the shareholder vote on the Merger; (3) within days of the shareholder vote, BoA’s senior management, including Defendant Lewis determined to invoke the MAC because BoA could not absorb Merrill’s staggering losses; (4) BoA agreed to proceed with the Merger after the Secretary of the Treasury, Henry Paulson, threatened to fire BoA’s senior management and the Board if they invoked the MAC; and (5) BoA was only able to consummate the Merger because it received a $138 billion taxpayer bailout prior to the close of the Merger.