Feb. 23 (Bloomberg) -- New York Attorney General Andrew Cuomo wants a state judge to force former Merrill Lynch & Co. Chief Executive Officer John Thain to disclose names of employees who got $3.6 billion in bonuses just before the firm merged with Bank of America Corp.

Thain, 53, refused when questioned in Cuomo’s office Feb. 19 to identify executives who got bonuses in December, citing orders from Bank of America’s lawyers, according to a motion and a transcript of a deposition provided today by Cuomo’s office. The five executives Bank of America allowed Thain to testify about were among the few who didn’t receive a bonus, according to the motion.

“Thain played a central role in the awarding of over $3.6 billion in bonuses just prior to Merrill Lynch’s merger with Bank of America,” Cuomo said in the court filing in New York state court in Manhattan.

Cuomo has been examining whether Merrill broke state laws in connection with the bonuses. He also is cooperating with U.S. Special Inspector General Neil Barofsky in a federal probe of executive pay at banks that received money from the U.S. Treasury’s Troubled Assets Relief Program. Merrill and Charlotte, North Carolina-based Bank of America have gotten approximately $45 billion in TARP money.

Thain’s Response

“I’ve been directed not to disclose by the company individual names other than the names of the top people,” said Thain’s attorney, Andrew Levander, according to a transcript of the deposition. “I don’t want to have him sued by the company for saying that he’s violating someone’s privacy.”

Thain defended the bonuses in the testimony made public today.

“Bonuses were determined based upon the performance and the retention of people, and there is nothing that happened in the world or the economy that would make you say that those were not the right thing to do for the retention and the reward of the people who were performing,” Thain said, according to the transcript.

Questioned by Benjamin Lawsky, Cuomo’s special assistant and a former federal prosecutor, Thain said he couldn’t answer whether he would have done anything differently had the bonuses been awarded in early January instead of early December.

Cuomo said the bonuses were set Dec. 8 and not adjusted later when it turned out pretax losses were $7 billion more than expected. Merrill reported Jan. 16 that it lost $15.31 billion in the fourth quarter and $27 billion for the year.

Thain was dismissed in January by Bank of America chief executive officer Kenneth D. Lewis. The move came after disclosure of the bonuses and Merrill’s unexpectedly large fourth-quarter loss.

Thain Subpoena

Cuomo said in today’s motion that Bank of America wasn’t empowered to bar Thain, a former employee with no severance contract, from answering questions about the determination and amounts of individual bonuses. Cuomo subpoenaed Thain for the testimony.

“Thain has cooperated and will continue to cooperate” with Cuomo, said Levander, of Dechert LLP in New York, in an interview. While Thain is “perfectly happy” to provide the names Cuomo is seeking, the lawyer said Bank of America has objected, saying the information is “confidential.”

Lewis and Bank of America Chief Administrative Officer J. Steele Alphin also have been subpoenaed by Cuomo’s office.

Scott Silvestri, a Bank of America spokesman, didn’t immediately return a call seeking comment.

Cuomo’s petition was filed in New York state court in Manhattan.

$3.6 Billion in Bonuses

Merrill “secretly and prematurely” awarded $3.6 billion in bonuses, with Bank of America’s “apparent complicity,” Cuomo said in a Feb. 10 letter to Representative Barney Frank, the Massachusetts Democrat who heads the House Committee on financial Services.

Cuomo said in the letter that Merrill “chose to make millionaires out of a select group of 700 employees,” and that an even smaller group was awarded “gigantic bonuses.”

After the top four recipients received $121 million, the next four received a combined $62 million, he said, and the next six a combined $66 million.

Overall, the top 149 people who got bonuses received a combined $858 million, according to Cuomo’s letter. He said 696 people got bonuses of $1 million or more.

In the matter of the petition by Andrew Cuomo against John Thain, 400381/2009, New York State Supreme Court (Manhattan).

To contact the reporter on this story: Karen Freifeld in New York at kfreifeld@bloomberg.net.

Last Updated: February 23, 2009 16:38 EST