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WYATT & BLAKE, L.L.P.
435 EAST MOREHEAD STREET
CHAR.LOTTE, NOR.TH CAR.OLINA 28202-2609
TELEPHONE, 704-331-0767
FACSIMILE, 704-331-0773
www.wyattandblakelaw.com
JAMES F. WYAT( Ill
RDBERT A. BLAKE, JR.
DIR.ECT E-MAIL
jfw@wyaltlaw.net
rblake®wyattlaw.net
LOU ANNE W. HEATH (NC STATE BAR CERTIFIED PARALEGAL)
December 22,2010
laheath@wyattlaw.net
By Federal Express and Email
Gary J. Cohen
General Counsel
Financial Crisis Inquiry Commission
1717 Pe!IDsylvania Ave. NW, Suite 800
Washington, DC 20006-4614
Re:
FCIC Interview of Kenneth D. Lewis
Dear Mr. Cohen:
Thank you for yom letter of December 15, 2010 concerning the anticipated use by
the Financial Crisis Inquiry Commission ("FCIC") of certain excerpts from its interview
of Ketmeth D. Lewis in the FCIC's forthcoming Report. I appreciate the opportunity to
comment on the quotations discussed in your letter.
The first quotation contains ellipses that exclude a significant statement made by
Mr. Lewis concerning Bank of America Corp.'s ("Bank of America") consideration of
whether to invoke the material adverse change ("MAC") clause in its Merger Agreement
with Merrill Lynch & Co., Inc. ("Merrill"). We believe that the quotation would be more
accurate if it included Mr. Lewis's statement (which he made in the portion you have
excised) that, in mid-December 2008, "[w]e thought the pace of deterioration was more
alarming that it had been previously." The reference to the "alarming" nature of the
acceleration is important to placing Mr. Lewis's comments in context. Mr. Lewis also
noted that he consulted with cmmsel, and counsel agreed there was a potential MAC,
which was an additional factor in his thinking.
Regarding the second quotation, your reference to Mr. Lewis's statement about
the "adversarial relationship" occurring in the context of "the situation" is vague. We
assume that your reference to the "situation" is mem1t to describe Bm1k of America's
consideration of whether there was a MAC, and ask that you ensure that this reference is
Gary J. Cohen
2
December 22, 2010
clear in the text of the report. In addition, we think it is clear from Mr. Lewis's interview
that in addition to his concern about creating an adversmial relationship with Merrill, it
also would not have been appropriate to ale1i Merrill to Bank of Ame1ica's consideration
of invoking the MAC clause because Merrill was a cmmterparty to the merger, and
therefore they should not have been alerted to the potential MAC until Bank of America
had decided to invoke it.
Your description of the third quotation also contains the vague term "the
situation." Again, we have no objection to the use of the quotation if the Repmi makes
clear that the context was Bank of America's consideration of whether to invoke the
MAC clause in the merger agreement.
We have no comments concerning the use of the fourth quotation discussed in
your letter.
Please contact me at (704) 331-0767 or atjfw@wyattlaw.net should you have any
fmiher questions.
Cordially,
cc:
Mr. Reginald .T. Brown
Mr. Andrew Ceresney
Mrs. Mary Jo White
@FedFRASER