Opinion

Alison Frankel

Deposing CEOs: BofA, MBIA, and a tale of two hearings

By Alison Frankel
March 15, 2012

Bank of America really, really does not want CEO Brian Moynihan to sit for a deposition in bond insurer MBIA’s breach-of-contract case against Countrywide and BofA.

According to the transcript of a hearing on the issue last Friday morning before Manhattan State Supreme Court Justice Eileen Bransten, the bank’s lawyers at O’Melveny & Myers said that under the so-called Apex rule — which essentially says that high-ranking executives shouldn’t have to waste their time responding to deposition questions that lesser-ranking officials can answer just as well — Moynihan should be shielded from testifying because he doesn’t have unique personal knowledge of the disputed facts in the case. He’s also a very busy man, said Jonathan Rosenberg of O’Melveny. Rosenberg displayed a slide that showed all of BofA’s “enormous operations,” which he said demanded “24/7 work from senior executives, especially the CEO.” MBIA’s insistence on taking testimony from Moynihan, when BofA has already offered up for deposition several senior bank executives with the same knowledge as the CEO, amounts to harassment, according to BofA.

“There’s no basis to say they have to have Brian Moynihan when they have access to all these other people,” including former BofA CEO Ken Lewis, Rosenberg said. “This effort to depose Brian Moynihan is for harassment purposes.” If Bransten allowed the deposition in MBIA’s case, other bond insurers suing Countrywide would “seek their own shot,” the O’Melveny lawyer said, which “would clearly be disruptive to the business of Bank of America to lose their CEO to substantial time in prepping for and taking depositions.”

You will not be surprised to hear that MBIA’s counsel, Peter Calamari of Quinn Emanuel Urqhart & Sullivan, told Bransten that Moynihan has unique knowledge that’s relevant to the bond insurer’s attempt to prove BofA’s successor liability for Countrywide’s failings. (You may, however, be surprised when you read the transcript and see that among those in the audience for Calamari’s argument were 30 grade school kids on a field trip to court, who were permitted to ask questions about what they’d heard; Calamari joked that the kids’ description of the proceeding as “jibber-jabber” put things into perspective.) MBIA said that only Moynihan can testify about why he made public statements such as “At the end of the day, we’ll pay for the things Countrywide did,” and “We’ll stand up, we’ll clean it up.”

“They’re sitting there and saying oh, no, no, no, it’s just some statement we made in the press, it doesn’t mean anything,” Calamari told Bransten. “Well, that’s their opinion, but that’s not our case. And these were statements made directly by Mr. Moynihan…. And more importantly, you know, Mr. Moynihan backed up these statements. It wasn’t that he just made naked statements, when he was CEO, case after case was settled where Bank of America ponied up the money for Countrywide’s liability…. All of those facts, when you put them together make out an assumption of liabilities case. We’re entitled to a deposition from the man who is behind it all.”

Bransten didn’t rule from the bench, noting that she wanted to review the case law that Rosenberg and Calamari had sparred over. She might also consider the precedents being developed in another case involving MBIA and BofA. On Friday afternoon, around the corner at the federal courthouse, Bank of America and three other banks in a coalition challenging MBIA’s 2009 restructuring argued alongside the hedge fund Aurelius for (among many other things) two days of depositions of MBIA CEO Jay Brown.

MBIA, in contrast to BofA, has offered up its CEO for all sorts of depositions, including a session in the insurer’s put-back case. Brown has also testified on two occasions in the bank group’s regulatory case, which alleges that the New York Insurance Department didn’t properly vet MBIA’s $5 billion spin-off of its healthy municipal bond business. In their fraud suits against MBIA that parallel the regulatory action, Aurelius, represented by Simpson Thacher & Bartlett, and the bank group, represented by Sullivan & Cromwell, argue that they need yet more deposition time with Brown.

MBIA’s counsel in the restructuring cases, Marc Kasowitz of Kasowitz Benson Torres & Friedman, asked U.S. District Judge Richard Sullivan (overseeing the Aurelius-led class action) and State Supreme Court Justice Barbara Kapnick (in charge of the bank case) to postpone any additional Brown depositions until after the conclusion of the regulatory trial, which is now scheduled for May. He also argued that the bank group’s S&C counsel already asked Brown questions beyond the scope of the regulatory case at Brown’s preceding depositions, including questions about Brown’s purchase of MBIA shares before the restructuring was approved. (Here’s a link to the letters the three sides submitted to the judges; here’s the transcript of the March 9 hearing, at which allegations of Brown’s insider trading led to considerable fireworks.)

Notably, MBIA has not argued in the restructuring cases or in its own case against BofA that Brown is an Apex witness who is too important to be tied up with a deposition. Nor, for that matter, did Aurelius claim that its chairman, Mark Brodsky, is too busy to sit for a deposition, even though he is the hedge fund’s sole portfolio manager (Simpson did request that the deposition be limited to one day.)

So is Bank of America talking out of both sides of its mouth, arguing in MBIA’s case that its CEO shouldn’t be deposed yet calling for the deposition of MBIA’s CEO in its case against the bond insurer?

Not according to BofA spokesperson Lawrence Grayson. “The positions are wholly consistent with each other and the applicable legal standards,” he told me. “We believe Mr. Brown has unique knowledge pertaining directly to the legal disputes at issue regarding MBIA’s restructuring. Further, the company Mr. Brown heads focuses solely on litigation. By contrast, Mr. Moynihan does not have unique knowledge relevant to MBIA’s claim against Bank of America and is the head of a global financial services institution.”

On Monday Sullivan and Kapnick both ruled that Brown’s deposition can’t be postponed until after the regulatory trial.

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