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Merrill Lynch Did a Deal ‘Precisely’ Like Goldman’s, Suit Asserts

Merrill Lynch and the Dutch bank Rabobank, which has sued Merrill over a failed CDO deal, have been sending dueling letters to a judge about whether Merrill's actions were similar to the ones that led to fraud charges against Goldman Sachs.

People leave Merrill Lynch's offices in the World Financial Center on Sept. 15, 2008. (Chris Hondros/Getty Images)

As we've been reporting, other banks did deals similar to the one at the center of the SEC's lawsuit against Goldman Sachs.

We're not the only ones who've noticed that. In the past several days, a legal back and forth has emerged between Merrill Lynch and the Dutch bank known as Rabobank, which is accusing Merrill of essentially doing the same kind of deal Goldman is being sued for (i.e., failing to disclose to investors that a hedge fund was involved in the creation of a risky CDO that the hedge fund intended to bet against).

Rabobank sued Merrill Lynch in state court in Manhattan last year over a deal called Norma, a $1.5 billion CDO that went bust within a year of its creation in 2007. Norma -- which we wrote about in our original story -- was one of among 30 CDOs Magnetar helped create in cooperation with at least nine banks between 2006 and 2007. As with Norma, the deals were packed with risky assets, which Magnetar was then able to bet against. (Magnetar denies these assertions and says it never took a position on the market.)

Hours after the SEC's suit was announced last Friday, the lawyer representing Rabobank sent a letter to Judge Bernard Fried, noting similarities to what Goldman allegedly did:

"The SEC charges bear directly on the sufficiency of Rabobank's complaint as Rabobank has alleged that Merrill Lynch engaged in precisely the same type of fraudulent conduct in the structuring and marketing of Norma through having failed to disclose that Norma's collateral pool had been selected to benefit short positions taken by Magnetar Capital LLC ('Magnetar'), the equity investor in Norma."

That drew a quick response from Merrill's attorneys. In a letter submitted to the court, they said Rabobank's attempt to portray the lawsuit as similar to the SEC's complaint against Goldman is irrelevant because it involves an "entirely different transaction."

Merrill also says it would have no incentive to build a CDO that it believed was likely to fail because "Merrill Lynch, as holder of $975 million in A-1 Notes (or 65% of the total $1.5 billion issuance), was the investor in Norma that had the most incentive for the transaction to succeed and the most to lose if Norma failed."

This, of course, drew a response to the response. On Tuesday, Rabobank's attorney sent another letter to the judge. After clearing up a spat about whether Rabobank had been sending information to the press, he wrote:

"Even if Merrill Lynch is correct that it suffered a loss on Norma (which is not supported by the pleadings), losing money is not a defense to fraud. Indeed, the SEC charged Goldman with fraud notwithstanding that it reportedly lost nearly $100 million on the ABACUS transaction."

It’d be nice if we actually could count on the Obama administration on actually DOING SOMETHING about the banksters, but I tend to figure it’s just more of the typical RHETORIC of his (and his administration) because it’s a “campaign year” and until past the elections they’ll be saying, “he just needs more time”.

This article is part of an ongoing investigation:
The Wall Street Money Machine

The Wall Street Money Machine

Enticed by profits and bonuses, Wall Street took advantage of complicated mortgage-based instruments to reap billions, only to exacerbate the eventual crash.

The Story So Far

As the housing market started to fade, bankers and hedge funds scrambled for ways to maintain the lavish bonuses and profits they had become so accustomed to, repackaging mortgages in complex securities called collateralized debt obligations. The booming CDO market masked how weak the housing market was, and exacerbated its collapse.

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