By Erin Sherbert
By Erin Sherbert
By Leif Haven
By Erin Sherbert
By Chris Roberts
By Kate Conger
By Brian Rinker
By Rachel Swan
Sometime after the April hearing, Judge Robertson will rule on whether BofA's bond trustee accounting records are reliable enough to be used in calculating possible BofA debts to the state and other governments. The judge has hired a certified public accountant, Francis Callahan, to help assess the accuracy of the records.
The 200-plus plaintiffs in the Stull case maintain that the accounting issue is relatively simple. The bank's records, they say, are bogus; all the audit trails showing that BofA improperly seized unclaimed bond funds have been destroyed. The amount of money the bank owes should, therefore, be calculated by using a benchmark -- 1 to 3 percent -- relating to the amount of bond funds that go unclaimed, industrywide. And that calculation should be tripled, as allowed under the whistle-blower law, giving Stull and the governments that have joined his lawsuit billions of dollars in damages.
But if Judge Robertson rules the bank's trustee records are coherent, he will use those records to determine how much money the bank does or does not owe for unclaimed funds. The plaintiffs fear this latter scenario like death because, they say, the existing bank records do not show the huge amount of bond funds that allegedly were embezzled through the years.
On the other hand, if the records are deemed unreliable, a jury will be impaneled to assess monetary damages owed by Bank of America. BofA's pleadings make clear the bank is eager to avoid a jury trial: "The enormously complex accounting issues would confuse the jury."
Nobody knows which of the 600 million BofA records Judge Robertson and his expert accountant will review as they struggle to decide if the bank's accounts are real or faked. As those documents are reviewed, the two main government attorneys involved in the whistle-blower case remain busy -- snarling at one another.
From the start of the Stull case, Attorney General Dan Lungren, a Republican, and City Attorney Louise Renne, a Democrat, have differed over fundamental strategy. According to Deputy City Attorney Mahoney, Renne wanted to put all of her eggs in the hands of accounting experts. Lungren, convinced BofA had eliminated the paper trail that accountants would need to calculate damages, preferred the industry benchmark approach.
"A false claims case is not an accounting case; it is inherently based in fraud and deceit," Lungren wrote the court in October 1997. "No accounting can be rendered due to fraud and deceit."
The many squabbles between the attorney general and the city attorney have sometimes been ridiculous, but seldom sublime. Some accuse Renne of filing San Francisco's intervention in the Stull case prematurely, to grab media attention.
Deputy City Attorney Mahoney retorts that the city filed because the state was conducting secret settlement negotiations with BofA. "We were not certain that the state would file in a timely manner," Mahoney says. Brian Taugher denies Mahoney's charge and claims Renne filed hastily, after receiving a call from a major television network.
Court records show that Renne had to refile her papers after the attorney general formally joined the whistle-blower lawsuit. The reason? Her first filing was procedurally incorrect.
By midsummer, Judge Robertson was so distressed by what he termed the "competing approach of various plaintiff's groups" that he created a "liaison counsel" to speak collectively for the entities suing BofA. But the judge's pleas for plaintiff unity have fallen on deaf ears. On Dec. 12, he heard preliminary arguments in a new squabble between Lungren and Renne over the division of the final $10.6 million payment BofA has agreed to make as part of the $48 million the bank has admitted it owes.
Renne and Lungren will air their dirty laundry again on Jan. 23. Judge Robertson's decision in this matter will set a precedent for how any future damages and penalties are distributed. Either Renne, or Lungren, will have to learn how to be a good loser if the case against Bank of America is to proceed smoothly.
Meanwhile, BankAmerica's primary advocates, the disciplined partners at Heller, Ehrman, White & McAuliffe, seem privately pleased by the internecine warfare on the other side of the case.
An epitaph is engraved in the reddish granite that decorates the lobby of BankAmerica's corporate headquarters in San Francisco: "A. P. Giannini founded the Bank of Italy in 1904 to 'serve the needs of others -- the only legitimate business in the world today.' His devotion to this far-sighted philosophy revolutionized the face of banking, and he lived to see his 'Bank for the little fellows' become Bank of America, the largest bank in the world."
By 1997, BankAmerica, BofA's corporate parent, had fallen to No. 32 in the ranking of the world's largest bank holding companies, a victim of the growth of foreign banking centers. But it is still a formidable financial entity, with $248 billion in assets. Last year, BankAmerica enjoyed a 15 percent profit on shareholder equity. It is madly buying financial service and high-tech companies to soak up excess capital.
A decade ago, however, things were not so rosy for BankAmerica. More than 200 U.S. banks failed in 1988. BofA's Corporate Trust Division had been rocked by a $650 million loss in a student loan securities deal it had helped engineer. Third World debt defaults zapped the bank's profits, and Chairman of the Board Samuel H. Armacost cried, "Every single short-term profit-making device ... that raped the future of the institution has already been done."