Company Name: Bank of America Corp. (AFL-CIO)
Public Availability Date: February 14, 2006
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
December 19, 2005
BY OVERNIGHT DELIVERY
Securities and Exchange Commission
Office of Chief Counsel
Division of Corporation Finance
450 Fifth Street, N.W.
Washington, DC 20549
Re: Stockholder Proposal Submitted by the American Federation of Labor and
Congress of Industrial Organizations
Ladies and Gentlemen:
You have requested our advice regarding the potential exclusion from Bank of
America Corporation's proxy materials for the 2006 Annual Meeting of
Stockholders of a shareholder proposal submitted by the American Federation of
Labor and Congress of Industrial Organizations (AFL-CIO) that requests that Bank
of America disclose semi-annually its political contributions. Below please find
sample text detailing grounds for exclusion based on Rule 14a-8(i)(11):
On July 14, 2005, Bank of America Corporation (the "Corporation") received a
proposal and supporting statement ("Proposal A") for inclusion in the proxy
materials for the Corporation's 2006 Annual Meeting of Stockholders (the "2006
Annual Meeting") from Evelyn Y. Davis ("Proponent A"), dated June 23, 2005. On
November 28, 2005, the Corporation received a proposal and supporting statement
("Proposal B" and, together with Proposal A, the "Proposals") for inclusion in
the proxy materials for the 2006 Annual Meeting from the AFL-CIO ("Proponent
B"), dated November 28, 2005. Proposal A and Proposal B are attached hereto as
Exhibit A and Exhibit B, respectively. The Corporation hereby requests
confirmation that the staff of the Division of Corporation Finance (the
"Division") will not recommend enforcement action if the Corporation omits
Proposal B from the proxy materials for the 2006 Annual Meeting for the reasons
set forth herein.
GENERAL
The 2006 Annual Meeting is scheduled to be held on April 26, 2006. The
Corporation intends to file its definitive proxy materials with the Securities
and Exchange Commission (the "Commission") on or about March 20, 2006 and to
commence mailing those materials to its stockholders on or about such date.
Pursuant to Rule 14a-8(j) promulgated under the Securities Exchange Act of 1934,
as amended, enclosed are:
1. Six copies of this letter, which includes an explanation of why the
Corporation believes that it may exclude Proposal B; and
2. Six copies of the Proposals.
A copy of this letter is also being sent to Proponent B as notice of the
Corporation's intent to omit Proposal B from the proxy materials for the 2006
Annual Meeting.
SUMMARY OF PROPOSALS
Proposal A (To be included in the proxy materials for the 2006 Annual Meeting)
Proposal A recommends that the Board of Directors direct management to publish
annually a detailed statement of political contributions made by the
Corporation. The statement would include certain detailed information related to
the contributions.
Proposal B
Proposal B requests that the Corporation submit semi-annually to its Audit
Committee a report containing detailed information relating to the Corporation's
political contributions and publish the report on the Corporation's website.
REASONS FOR EXCLUSION OF PROPOSAL B
The Corporation believes that Proposal B may be properly omitted from the proxy
materials for the 2006 Annual Meeting pursuant to Rule 14a-8(i)(11), because it
substantially duplicates Proposal A which was previously submitted by Proponent
A and will be included in the proxy materials for the 2006 Annual Meeting.
Proposal B may be excluded pursuant to Rule 14a-8(i)(11) because it
substantially duplicates Proposal A, which was previously submitted to the
Corporation and will be included in the proxy materials for the 2006 Annual
Meeting.
Rule 14a-8(i)(11) permits the exclusion from the Corporation's proxy materials
of stockholder proposals that substantially duplicate another proposal
previously submitted by another proponent that will be included in the
Corporation's proxy materials for the same meeting. The Corporation intends to
include Proposal A in its proxy materials for the 2006 Annual Meeting. Proposals
do not need to be identical to be excluded pursuant to Rule 14a-8(i)(11). The
Division consistently has concluded that proposals may be excluded because they
are "substantially duplicative" when such proposals have the same "principal
thrust" or "principal focus," notwithstanding that such proposals may differ as
to terms and scope. See, e.g., Bank of America (February 25, 2005) ("Bank of
America"); Time Warner Inc. (February 11, 2004) ("Time Warner"); Chevron Texaco
Corp. (January 27, 2004) ("Chevron Texaco"); General Electric Co. (January 20,
2004) ("GE"); BellSouth Corporation (January 14, 1999) ("BellSouth"); and
Centerior Energy Corporation (February 27, 1995) ("Centerior").
Given the Corporation's intention to include Proposal A in the proxy materials
for the 2006 Annual Meeting, the Corporation believes that including Proposal B
in the Corporation's proxy materials for the 2006 Annual Meeting would be
confusing to stockholders. If more than one of the Proposals were approved by
stockholders, it could result in alternative and inconsistent obligations being
imposed on the Corporation in order to achieve each Proposal's desired result:
disclosure of corporate political contributions. The Corporation should not be
required to include two proposals concerning corporate political contributions
because, if each was approved, the Board of Directors would have no way of
knowing the scope and means of disclosure stockholders prefer, nor would the
Board of Directors be able to fully implement each Proposal due to inconsistent
or conflicting terms and scope. Although the terms and scope of the Proposals
are somewhat different, the core issue of both Proposals is substantially the
samedisclosure of corporate political contributions.
In Bank of America, the Division permitted the Corporation to exclude proposals
that are almost exactly the same as the Proposals. Last year, Bank of America
received: 1) a proposal that is identical in all material respects to Proposal A
("2005 Proposal A") (set forth in Exhibit Z), submitted by Proponent A, and 2) a
proposal that differs only slightly from Proposal B ("Proposal C") (set forth in
Exhibit C) submitted by a different proponent. The differences between Proposals
B and C that are also different from Proposal A are: 1) Proposal B requests
semi-annual reporting and Proposal C requested annual reporting; 2) Proposal B
requests reports be delivered to the Audit Committee or other relevant oversight
committee and published on the Corporation's website, while Proposal C confined
reporting to shareholders; and 3) Proposal B requests the report on corporate
political contributions include corporate policies and procedures for political
contributions and Proposal C only required policies, not procedures be
published. Because the differences between Proposals B and C are de minimus, and
the Division recognized that last year's Proposal C was substantially
duplicative of Proposal A, then the Corporation requests the Division similarly
agree that Proposal B substantially duplicates Proposal A.
In Time Warner, two shareholder proposals sought information on Time Warner's
participation and use of corporate resources in the political process. The
Division concurred with Time Warner's characterization of the proposals as
substantially duplicative under Rule 14a-8(i)(11) because the subject matter of
the proposals was the same, despite differences in wording, specificity and
breadth. The first proposal requested that Time Warner prepare and distribute to
shareholders an annual report describing its participation in "federal, state
and local election campaigns," including six specific categories of information.
The second proposal requested that Time Warner's board of directors "adopt a
policy to report annually to shareholders in a separate report on corporate
resources devoted to supporting political entities or candidates on both state
and federal levels." The Division concurred with Time Warner's characterization
of the second proposal as substantially similar to the first, despite the first
proposal's greater detail with respect to the contents of the requested annual
report and inclusion of information regarding Time Warner's political
participation at the local level.
In Chevron Texaco, the Division concurred with ChevronTexaco's determination
that two shareholder proposals were substantially duplicative and that the
second such proposal could be omitted from the company's proxy materials. The
primary thrust of each proposal was a request to ChevronTexaco's board of
directors to prepare a report to shareholders containing policies for corporate
political contributions, an accounting of such contributions, a business
rationale for such contributions and identification of the person or persons in
the company who participated in the decisions to make such contributions. As
with the Proposals, the first proposal in Chevron Texaco requested this report
semi-annually, while the second proposal requested the report annually;
nevertheless, the Division concurred that the Chevron Texaco proposals were
substantially duplicative. The Corporation respectfully requests that the
Division reaffirm this established precedent that the difference between an
annual and semi-annual report does not prevent proposals from being
substantially duplicative within the meaning of Rule 14a-8(i)(11).
In GE, the Division concurred with General Electric's determination that two
shareholder proposals were substantially duplicative and that the second such
proposal could be omitted from the company's proxy materials. The principal
thrust of each proposal was the preparation and disclosure of a report by the
company's board of director's describing "(i) General Electric's policies for
making political contributions with corporate funds and (ii) summarizing or
accounting for General Electric's actual political contributions." Further, both
proposals reflected the proponents' negative views on perceived excesses of
contributions and stressed that certain contributions could pose reputational
and legal risks for General Electric or otherwise not be in the long-term best
interests of General Electric and its shareholders. The second proposal also
included a request that included a category of information not included in the
first proposal. Despite these differences in scope, the Division concurred that
the General Electric proposals were substantially duplicative.
In Centerior, four compensation-related proposals were submitted as follows: (1)
place ceilings on executives' compensation, tie compensation to the company's
future performance, and cease bonus and stock option awards; (2) freeze
executive compensation; (3) reduce management size, reduce executive
compensation, and eliminate bonuses; and (4) freeze annual salaries and
eliminate bonuses. Centerior argued that "all of the proposals have as their
principal thrust the limitation of compensation and, directly or indirectly,
linking such limits to certain performance standards." The Division concurred
that the four Centerior proposals were substantially duplicative.
Finally, in BellSouth, the first proposal requested that all incentive awards be
"tied proportionately to the revenue growth at the end of the year." The second
BellSouth proposal requested that all incentive awards be "tied proportionately
to the price of the stock at the end of the year." The Division concurred that
the BellSouth proposals were substantially duplicative.
Analysis Supporting the Exclusion of Proposal B
The Corporation believes that Proposal B is properly excludable from the proxy
materials for the 2006 Annual Meeting under Rule 14a-8(i)(11). As noted above,
Proposal A recommends that the Board of Directors direct management to publish
annually a detailed statement of political contributions made by the
Corporation. Proposal A requests that the detailed statement include (i) the
Corporation's direct and indirect political contributions in the prior fiscal
year, (ii) the date of each such contribution, (iii) the amount of each such
contribution and (iv) the identity of the person or persons to whom each such
contribution was made. In subsequent years, such statement would be included in
the Corporation's annual report to stockholders. Similarly, Proposal B requests
that the Corporation prepare a semi-annual report containing certain detailed
information relating to the Corporation's political contributions to be
presented to the Corporation's Audit Committee and published on the
Corporation's website. While not identical, there is significant overlap between
the information requested in Proposal B and the information requested in
Proposal A and the Corporation believes that Proposal A and Proposal B clearly
have an identical "principal focus" or "principal thrust." Both Proposal A and
Proposal B request that the Corporation provide stockholders with detailed
disclosure regarding the Corporation's political contributions and related
policies.
Moreover, because 2005 Proposal A (which is essentially identical to Proposal A)
was found to be substantially similar to Proposal C, and Proposals B and C are
almost identical, the Corporation respectfully requests that the Division
similarly take a no-action position on the substantial duplication between
Proposals A and B.
In addition, similar to the proposals at issue in GE, the supporting statements
of both Proposal A and Proposal B clearly reflect the same principal focus and
thrust. Both Proposal A and Proposal B reflect the respective Proponent's views
that the contributions made by the company may not be in the best long-term
interests of stockholders. For example, the supporting statement to Proposal A
states that contributions made by the Corporation "are made with dollars that
belong to the shareholders as a group and they are entitled to know how they are
being spent" and the supporting statement to Proposal B similarly states that
without reporting "corporate executives [may] use the [Corporation's] assets for
political objectives that ... may be inimical to the interests of the
[Corporation] and its shareholders."
The Corporation believes the inclusion of both Proposal A and Proposal B in the
Corporation's proxy materials for the 2006 Annual Meeting would be confusing to
stockholders and, if both Proposals were approved by stockholders, could result
in alternative and inconsistent obligations being imposed on the Corporation in
order to achieve each Proposal's desired result. The Corporation should not be
required to include multiple proposals concerning contributions because, if each
were approved, the Board of Directors would have no way of knowing which
disclosure approach the stockholders prefer; nor would the Board of Directors be
able to fully implement each Proposal due to inconsistent or conflicting
provisions. Although their implementation is somewhat different, the core issues
of Proposal A and Proposal B are substantially the same.
As noted above, the Corporation intends to include Proposal A in its proxy
materials for the 2006 Annual Meeting. Therefore, pursuant to Rule 14a-8(i)(11)
and consistent with the Division's interpretation of the rule in Bank of
America, Time Warner, Chevron Texaco and GE, Proposal B may be excluded because
it is substantially duplicative of Proposal A.
CONCLUSION
On the basis of the foregoing, the Corporation respectfully requests the
concurrence of the Division that the Proposal may be excluded from the
Corporation's proxy materials for the 2006 Annual Meeting. Based on the
Corporation's timetable for the 2006 Annual Meeting, a response from the
Division by February 3, 2006 would be of great assistance.
If you have any questions or would like any additional information regarding the
foregoing, please do not hesitate to contact the undersigned at 704-386-5083.
Please acknowledge receipt of this letter by stamping and returning the enclosed
receipt copy of this letter. Thank you for your prompt attention to this matter.
Very truly yours,
/s/
William J. Mostyn III
Deputy General Counsel and Corporate Secretary
cc: Richard L. Trumka
[INQUIRY LETTER]
June 23, 2005
Ken Lewis, CEO
BANK OF AMERICA
Charlotte, N.C.
Dear Ken:
This is a formal notice to the management of Bank of America that Mrs. Evelyn Y.
Davis, who is the owner of 1720 shares of common stock plans to introduce the
following resolution at the forthcoming Annual Meeting of 2006. I ask that my
name and address be printed in the proxy statement, together with the text of
the resolution and reasons for its introduction. I also ask that the substance
of the resolution be included in the notice of the meeting:
RESOLVED: "That the stockholders recommend that the Board direct management that
within five days after approval by the shareholders of this proposal, the
management shall publish in newspapers of general circulation in the cities of
New York, Washington, D.C., Detroit, Chicago, and Charlotte, San Francisco. Los
Angeles, Dallas, Houston and Miami, and in the Wall Street Journal and U.S.A.
Today, a detailed statement of each contribution made by the Company, either
directly or indirectly, within the immediately preceding fiscal year, in respect
of a political campaign. political party, referendum or citizens' initiative, or
attempts to influence legislation, specifying the date and amount of each such
contribution, and the person or organization to whom the contribution was made.
Subsequent to this initial disclosure, the management shall cause like data to
be included in each succeeding report to shareholders." "And if no such
disbursements were made, to have that fact publicized in the same manner."
REASONS: "This proposal, if adopted, would require the management to advise the
shareholders how many corporate dollars are being spent for political purposes
and to specify what political causes the management seeks to promote with those
funds. It is therefore no more than a requirement that the shareholders be given
a more detailed accounting of these special purpose expenditures that they now
receive. These political contributions are made with dollars that belong to the
shareholders as a group and they are entitled to know how they are being spent."
"Last year the owners of........" shares, representing approximately 5.8% of
shares voting, voted FOR this proposal."
"If you AGREE, please mark your proxy FOR this resolution."
.....*Please fill in correct figure.
Sincerely,
/s/
Mrs. Evelyn Y. Davis
CC: SEC in D.C.
Ken, PLEASE acknowledge receipt of this resolution YOURSELF.
[INQUIRY LETTER]
November 28, 2005
William J. Moslyn
Deputy General Counsel and Corporate Secretary
Bank of America Corporation
100 North Tryon Street
Charlotte, NC 28255
Dear Mr. Moslyn:
On behalf of the AFL-CIO Reserve Fund (the "Fund"), I write to give notice that
pursuant to the 2005 proxy statement of Bank of America Corporation (the
"Company"), the Fund intends to present the attached proposal (the "Proposal")
at the 2006 annual meeting of shareholders (the "Annual Meeting"). The Fund
requests that the Company include the Proposal in the Company's proxy statement
for the Annual Meeting. The Fund is the beneficial owner of 2,476 shares of
voting common stock (the "Shares") of the Company, and has held the Shares for
over one year. In addition, the Fund intends to hold the Shares through the date
on which the Annual Meeting is held.
The Proposal is attached. I represent that the Fund or its agent intends to
appear in person or by proxy at the Annual Meeting to present the Proposal. I
declare that the Fund has no "material interest" other than that believed to be
shared by stockholders of the Company generally. Please direct all questions or
correspondence regarding the Proposal to Daniel Pedrotty at (202) 637-3900.
Sincerely,
/s/
Richard L. Trumka
RLT/bmo
opeiu#2
afl-cio
Enclosure
[APPENDIX]
Shareholder Proposal
Resolved, that the shareholders of Bank of America Corporation ("Bank of
America" or the "Company") hereby request that the Company provide a report,
updated semi-annually, disclosing the Company's:
1. Policies and procedures for political contributions (both direct and
indirect) made with corporate funds.
2. Monetary and non-monetary contributions to political candidates, political
parties, political committees and other political entities organized and
operating under 26 USC See. 527 of the Internal Revenue Code including the
following:
a. An accounting of the Company's funds contributed to any of the organizations
described above;
b. Identification of the person or persons in the Company who participated in
making the decisions to contribute;
c. The internal guidelines or policies, if any, governing the Company's
political contributions.
This report shall be presented to the Board of Directors' Audit Committee or
other relevant oversight committee, and posted on the Company's website.
Supporting Statement
As long-term shareholders of Bank of America, we support policies that apply
transparency and accountability to corporate political giving. In our view, such
disclosure is consistent with public policy in regard to public company
disclosure. Absent a system of accountability, we believe that corporare
executives will be free to use the Company's assets for political objectives
that are not shared by and may be inimical to the interests of the Company and
its shareholders. We are concerned that there is currently no single source of
information that provides all of the information sought by this resolution.
Working Americans do business with our Company as depositors and investment
management clients. They invest their retirement savings through Bank of America
and own shares in the Company itself. We believe these relationships are based
on the expectation of trust in Bank of America. In our view, this trust is
imperiled by Bank of America's partisan role in the effort in California to pass
the now defeated Proposition 75.
According to the Cal-Access Campaign Finance Database, our Company donated
$100,000 to Arnold Schwarzenegger's California Recovery Team ("CRT"). CRT
campaigned on behalf of Proposition 75, a measure we believe sought to silence
the voice of public employee labor unions. For the second time in less than 10
years, a majority of voters rejected this ballot question, which in our opinion
would have denied unions a voice in decisions affecting the reirement security
of their members, while senior Company management could freely contribute to
politicians and campaigns to privatize Social Security or eliminate defined
benefit pensions.
We believe increased political disclosure will make our Company's political
contributions more transparent, and allow shareholders to fully evaluate the use
of corporate assets in election campaigns and debates surrounding retirement
security and other issues of importance.
[INQUIRY LETTER]
January 23, 2006
Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Re: Request by Bank of America Corporation to omit stockholder proposal
submitted by the AFL-CIO Reserve Fund
Dear Sir/Madam:
Pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, the AFL-CIO
Reserve Fund (the "Fund") submitted a stockholder proposal (the "Proposal") to
Bank of America Corporation ("B of A" or the "Company"). The Proposal requests
that B of A report semiannually to both its audit committee and its stockholders
regarding (1) its policies and procedures governing both direct and indirect
political contributions; and (2) all monetary and non-monetary contributions not
only to political candidates, parties and committees, but also other political
entities organized under section 527 of the Internal Revenue Code (each, a
"contribution"). With respect to each contribution, the Proposal asks B of A to
identify the person or persons employed by the Company who made the decision to
contribute, as well as to disclose any applicable internal guidelines or
policies.
By letter dated December 19, 2005, B of A stated that it intends to omit the
Proposal from its proxy materials and asked for assurance that the Staff would
not recommend enforcement action if it did so. B of A contends that the Proposal
may be excluded pursuant to Rule 14a-8(i)(11) because it substantially
duplicates another proposal the Company intends to include in its proxy
materials. The Proposal, however, is much broader in scope than the proposal B
of A intends to include and proposes significantly different disclosure than the
earlier-received proposal; thus, the two proposals are not substantially
duplicative and B of A is thus not entitled to rely on Rule 14a-8(i)(11) to
exclude the Proposal.
B of A urges that the Proposal is substantially duplicative of an
earlier-submitted proposal (the "Davis Proposal") asking the Company to publish
in general circulation newspapers in ten major cities, as well as in the Wall
Street Journal and USA Today, a list of political contributions made by B of A
in the preceding fiscal year, and to follow that disclosure with similar lists
in "each succeeding report to shareholders."
1
The Proposal differs from the Davis Proposal in several important ways. First,
the proposals have different overall objectives. The Proposal aims to help
stockholders understand the process and standards used by B of A in making
decisions about political contributions. To that end, the Proposal asks for
disclosure not only of the contributions themselves, but also of B of A's
policies on the subject and the personnel entrusted with such decision making.
The Fund believes that while disclosure of individual contributions is valuable,
it is even more critical for stockholders to understand how political
contributions fit into B of A's business strategy and what protections have been
put in place by B of A's management and board of directors to ensure that
contributions are in the Company's best interest. The Davis Proposal focuses
exclusively on disclosure of individual contributions.
Second, the Proposal requests that the report on political contributions be
presented to the audit committee of B of A's board or other relevant oversight
committee. This element of the Proposal ensures that an appropriate committee of
B of A's board is monitoring both the process and the specific contributions. In
the Fund's view, vigorous board oversight is as important as disclosure to
stockholders in ensuring that political contributions are made appropriately.
Particularly in the current environment, in which heightened scrutiny is being
brought to bear on both direct and indirect political contributions, board-level
involvement in managing this risk is critical. The Davis Proposal makes no
mention of the board of directors or any board committee.
Third, the Proposal would capture a much wider array of political contributions
than the Davis Proposal. The Davis Proposal is not drafted to cover
contributions to organizations referred to as "soft PACSs," "stealth PACs" or
"section 527 organizations," which are not political campaigns, political
parties, referenda or citizens' initiatives (the categories included in the
Davis Proposal), but rather engage in issue advocacy. Issue advocacy may or may
not qualify as "attempts to influence legislation," a phrase from the Davis
Proposal which calls to mind lobbying activities.
The activities of these stealth PACs have attracted media attention of late and
are of particular concern because funds contributed to such organizations are
then forwarded to candidates and organizations whose goals may not be in
companies' best interests. For example, in the 2002 election cycle, Union
Pacific contributed to Americans for a Republican Majority ("ARM"), a soft PAC
associated with indicted former House Majority Leader Tom DeLay. ARM in turn
donated to evangelical Christian groups whose agendas were directly at odds with
Union Pacific's own employment policies.
Fourth, the Davis Proposal uses general circulation newspapers for the initial
contributions disclosure. By contrast, the Proposal contemplates that the
requested disclosure is geared toward the board of directors and stockholders
and asks that a report be prepared and made available to them. Although some B
of A stockholders might happen across the newspaper disclosure, the Fund
believes that a separate report to stockholders is a preferable and more
cost-effective means of communication, especially since disclosure of policies
and other process-related matters will also be provided.
Finally, at least one major institutional investor advisor distinguishes between
the Fund's Proposal and the Davis Proposal in their voting recommendation.
Institutional Shareholder Services ("ISS"), a provider of proxy voting and
corporate governance services serving more than 1,600 institutional and
corporate clients, has adopted a new company-by-company policy for considering
the Fund's political contribution proposal. According to the ISS 2006 U.S. Proxy
Voting Guidelines, the advisor recommends a case-by-case vote "on proposals to
improve the disclosure of a company's political contributions considering: any
recent significant controversy or litigation related to the company's political
contributions or governmental affairs; and the public availability of a policy
on political contributions." This position represents a shift from prior
recommendations and again points to important differences between the Fund
Proposal and Davis Proposal. Unlike the Davis Proposal, we believe this updated
ISS voting recommendation would apply exclusively to the Fund's Proposal calling
for Board level oversight and broad distribution of policies and procedures and
monetary and non-monetary disclosure.
Contrary to B of A's assetion, the Fund believes that stockholders will be able
to understand the significant differences between the Proposal and the Davis
Proposal, and to cast an informed vote on each of them. There would be no
inconsistency if stockholders approved both of the proposals, as B of A claims,
although in light of the 5.8 percent vote received by the Davis Proposal in
2005, such an outcome seems remote.
For example, if B of A were to decide to implement both proposals, it could
collect data regarding political contributions to candidates, committees,
parties and referenda/other intiatitives. That data would satisfy the Davis
Proposal, and could be published in the newspapers Ms. Davis specifies. Then, B
of A could add the contributions to section 527 entities, and present the
resulting list, together with the requested information on policies and
procedures, to the relevant board committee and B of A's stockholders. Although
the Fund believes that the disclosure mechanism and recipients suggested in the
Proposal are more appropriate than those suggested in the Davis Proposal, there
would be no practical or legal impediment to B of A implementing both proposals.
In sum, although both the Proposal and the Davis Proposal relate to political
contributions, the Proposal's much broader focus on the governance structures
and processes B of A uses in making decisions in this area and the wider range
of contributions disclosable under the Proposal make exclusion of the Proposal
inappropriate.
If you have any questions or need anything further, please do not hesitate to
call me at (202) 637-5379. The Fund appreciates the opportunity to be of
assistance to the Staff in this matter.
Very truly yours,
/s/
Daniel F. Pedrotty, Esq.
DFP/me
opeiu #2, afl-cio
cc: William J. Mostyn III Deputy General Counsel and Corporate Secretary Bank of
America Corporation Fax # 704-386-9330
-----FOOTNOTES-----
1 Presumably, this refers to B of A's annual report to stockholders.
[STAFF REPLY LETTER]
February 14, 2006
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Bank of America Corporation Incoming letter dated December 19, 2005
The proposal requests that Bank of America prepare a report concerning political
contributions that contains information specified in the proposal.
There appears to be some basis for your view that Bank of America may exclude
the proposal under rule 14a-8(i)(11), as substantially duplicative of a
previously submitted proposal that will be included in Bank of America's 2006
proxy materials. Accordingly, we will not recommend enforcement action to the
Commission if Bank of America omits the proposal from its proxy materials in
reliance on rule 14a-8(i)(11).
Sincerely,
/s/
Amanda McManus
Attorney-Adviser
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