The year 2009 was rough for the Bank of America and its chairman and chief executive, Ken Lewis. On Jan. 1, the bank closed its $50 billion purchase of Merrill Lynch, a deal Lewis had hastily negotiated the previous September, as the financial world appeared close to collapse.
Just weeks later, it all came a cropper, after Bank of America revealed, shockingly, that its new unit had lost more than $15 billion during the fourth quarter of 2008. That bank had to ask the government to backstop $118 billion in Merrill’s toxic assets, and to provide it $20 billion in additional capital. The stock dropped below $7 a share from over $33.
Furious shareholders sued. But they also did something else: Led by the Service Employees International Union and Finger Interests, a Houston hedge fund, shareholders offered a binding resolution at the annual meeting calling for Lewis to step down from his role as board chairman. The idea was that having separate people serve as C.E.O. and chairman would provide additional board oversight.
The resolution narrowly passed. Several participants have since told me that they believe it’s the only example of shareholders passing a binding resolution over a board’s objection.
Fast forward to last October. Without question, Bank of America has come a long way since those dark days. Under Brian Moynihan, who has been the chief executive — but not the chairman! — since 2010, the company has “reduced leverage, rebuilt its capital and simplified its business,” according to Jonathan Finger, comanaging partner of Finger Interests, which remains a shareholder. But the bank has also had trouble passing the Federal Reserve’s “stress tests,” had a $4 billion accounting error in 2014, and its stock has underperformed its banking industry peers.