March 13 (Bloomberg) -- A New York judge said he hopes to decide within a week whether the names of Merrill Lynch & Co. employees who received $3.6 billion in bonuses in December should remain confidential.

New York Attorney General Andrew Cuomo has sought the names of individual bonus recipients for his probe of the payments, which were granted before the company was acquired by Bank of America Corp. on Jan. 1. Merrill posted a $15.8 billion loss in the fourth quarter. Cuomo claims he has discretion over whether the data should remain confidential.

New York state Supreme Court Justice Bernard Fried is considering whether Cuomo can make public testimony about top bonus recipients that may have been provided to Cuomo’s office last month by former Merrill Lynch Chief Executive Officer John Thain.

Fried also is considering whether to order Cuomo to keep confidential a list identifying Merrill’s top bonus recipients, which Cuomo requested by subpoena. Bank of America hasn’t yet complied with the subpoena.

“What I am going to try to do is get a decision written in the next week or less,” Fried said as the hearing in his Manhattan courtroom ended.

At today’s hearing and in court filings, Bank of America argued that it would be harmed if the information was made public.

Poaching Talent

The bank claimed in court filings that doing so would provide a “roadmap,” revealing which business lines the banks believe to be most valuable, and enable competitors to poach the bank’s top talent.

“What’s at issue is the confidentiality of the names,” Evan Davis, an attorney for Bank of America, told Fried today.

“Imagine, tomorrow in the Daily News, 200 names and their compensation,” Davis said. “Americans care about their privacy. That matters to us because if we don’t try to protect it and succeed in protecting it, we’ll lose them to foreign banks.”

A lawyer for Thain, Andrew Levander, said his client doesn’t have a position on Cuomo’s motion to compel the information.

Cuomo claims Bank of America has no legal basis to intervene and that the bonus payments are not a trade secret.

“It’s not the Carvel formula,” said Eric Corngold, executive deputy attorney general of New York, referring to the ice cream. “Investigations reveal information that people may not want out on the street. But that’s not a reason for the court to create a handcuffing of an investigation.”

Bank’s ‘Infringement’

Corngold added that the awards Merrill made in December 2008 are not applicable to what Bank of America will do in 2009. He said Bank of America’s efforts to intervene were “an infringement on the attorney general’s authority.”

Bank of America said it would provide the data to Cuomo if he kept it confidential and that he has refused.

Cuomo said in a Feb. 10 letter that Merrill “chose to make millionaires out of a select group of 700 employees,” and that a smaller group was awarded “gigantic bonuses.”

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

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

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 fourth-quarter loss.

Bank of America fell 9 cents to $5.76 in composite trading on the New York Stock Exchange.

The case is People v. 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: March 13, 2009 17:37 EDT