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Bank of America Subsidiary Ordered To Pay Rosen Hedge Funds $63.7M

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Bank of America subsidiary Merrill Lynch Professional Clearing Corp. has been ordered to pay hedge fund clients Rosen Capital Partners and Rosen Capital Institutional $63.7 million plus interest for an arbitration case dating back to the height of the financial crisis.

The total award for compensatory damages amounts to about $79 million including interest, said Hal Barza, partner at Quinn Emanuel Urquhart & Sullivan LLP, the Los Angeles law firm representing Rosen Capital in the case. That includes about $15.5 million in interest, which the Financial Industry Regulatory Authority panel set at 9% annual interest from Oct. 7, 2008 until the award’s payment.

The award decision comes after Rosen Capital first filed the arbitration claim against Merrill Lynch in May 2009. In that claim, Rosen Capital alleged “unexpected margin calls which caused losses in two hedge funds,” the FINRA document said. In connection with those allegations, Rosen Capital accused Merrill Lynch of fraud, negligence and breach of contract.

In the dispute, Rosen Capital asserted that Merrill Lynch had fraudulently encouraged them to transfer prime brokerage accounts to Merrill Lynch in September 2008. Merrill Lynch subsequently breached the required margin, Rosen Capital also alleged, and froze and interfered with the accounts in October 2008.

Rosen Capital initially requested at least $90 million in actual damages, plus punitive damages and applicable fees. At the close of the hearing, Rosen Capital requested $77.7 million in damages. In the end, the FINRA panel awarded compensatory damages, but denied other requests for punitive damages and other relief.

More details about the arbitration proceedings and decision were not provided in the FINRA documents.

The FINRA panel’s decision was a source of happiness for Rosen Capital, Barza said.

“This has been a long and difficult struggle for my investors and for me,” Rosen Capital portfolio manager Kyle Rosen said in a statement provided by Barza. “We are relieved and grateful that we were able to obtain a just outcome.”

Bank of America, on the other hand, said in a statement provided by a spokesperson that it disagrees with the decision and may fight it.

“We strongly disagree with the arbitration panel’s award, which is contrary to the facts presented,” Bank of America’s statement said. “At all times, we met the contractual requirements of our relationship with this sophisticated hedge fund, which sought to blame us for losses during a period of extreme market volatility in October 2008 … We are considering additional action in this matter, including asking a court to overturn this award.”




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