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Posted: 4:00 p.m. Friday, Sept. 28, 2012

Case ends with $2.4B payout

Local attorney in line for legal fees

By Laura A. Bischoff

COLUMBUS —

Ohio pension funds and other investors won a historic $2.43 billion settlement in a class-action lawsuit against Bank of America over claims that the bank withheld information about its acquisition of Merrill Lynch.

The settlement, announced Friday, will bring an estimated $9.7 million to the State Teachers Retirement System of Ohio and $11.8 million to the Ohio Public Employees Retirement System. STRS and OPERS teamed up with pension funds in Texas, Sweden and The Netherlands to be lead plaintiffs in the federal class action that was filed in 2009.

They alleged that the megabank broke federal securities law by failing to disclose Merrill Lynch’s losses when the two financial giants announced their merger in the fall of 2008. By the time Merrill Lynch’s troubles were disclosed, shareholders lost $50 billion in value, the plaintiffs alleged in the lawsuit.

Bank of America denied the allegations and said it was agreeing to the settlement to avoid the cost and uncertainty of protracted litigation.

“Resolving this litigation removes uncertainty and risk and is in the best interests of our shareholders,” said Chief Executive Officer Brian Moynihan. “As we work to put these long-standing issues behind us, our primary focus is on the future and serving our customers and clients.”

The settlement will be reviewed by U.S. District Court Judge Kevin Castel in the Southern District of New York, where the case was filed.

The settlement in the federal securities fraud case is one of the four largest settlement amounts ever involving a single corporate defendant, according to the Ohio Attorney General’s office. The settlement is the largest securities class-action settlement where executives of the defendant were not criminally charged. The case was scheduled to go to trial Oct. 22.

The case will likely generate about $150 million in legal fees to the law firms hired to represent the class, Attorney General Mike DeWine said. Dayton attorney Dennis Lieberman, who who was named local counsel on the case in 2009 when Democrat Richard Cordray was Ohio attorney general, will get a cut but it’s unclear how much.

Lieberman is a former Montgomery County Democratic Party chairman and the husband of Montgomery County Commissioner Debbie Lieberman.

Cordray hired Bernstein, Litowitz, Berger & Grossman and Kaplan Fox, two experienced securities fraud litigation firms, to represent Ohio. Those firms picked Lieberman for the local counsel work. Lieberman said Friday that it is the biggest business law case he has worked on.

Lieberman has been in the news recently over his fight with Ohio Secretary of State Jon Husted to allow early voting on weekends. Husted removed Lieberman and fellow Democrat Tom Ritchie, Sr., from the Montgomery Board of Elections when the pair voted to establish weekend voting hours.

“Investing involves risk. But investors, whether pension funds or individuals, expect companies to provide accurate information so they can judge that risk,” said Ohio Attorney General Mike DeWine in a written statement. “Misleading investors with wrong or incomplete information is unacceptable and costly.”

DeWine said at a press conference that the corporate behavior was “flagrant” and “outrageous behavior.”

“Any time that you have a case like this, the law is a teacher, both in the criminal and civil areas. I think that people have laws on the books and there are requirements. But until there is enforcement, people sometimes do not attention,” DeWine said. “This is outrageous behavior and they, today, have paid a price for that. What we hope in the future is that companies do not do that.”

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