Bank of America: Corporate Rap Sheet
Bank of America
By Philip Mattera
Bank of America has become one of the main symbols of the excesses that brought about the financial meltdown of 2008 and the ensuing economic troubles. BofA was culpable both through its own actions and those of two troubled companies it acquired in 2008: Countrywide Financial and Merrill Lynch. Countrywide initiated many of the predatory mortgages that were then bundled by the likes of Merrill into securities that turned out to be toxic.
In the past few years, BofA, which was one of the largest beneficiaries of the federal bailout in 2008 onward, has had to pay billions of dollars to settle lawsuits alleging misbehavior relating to mortgages and mortgage-backed securities. It also got a private bailout in the form of a $5 billion capital infusion from Warren Buffett in 2011.
The name Bank of America dates back to the community banks that A.P. Giannini founded in San Francisco in the early 20th Century, but the company currently bearing that name is technically the descendent of Nationsbank, an aggressive bank holding company based in North Carolina.
The old Bank of America was a pioneer in the development of branch banking both within California and in other states through a holding company called Transamerica, which in 1957 was split off on orders of the Federal Reserve. This thwarted the dreams of Giannini and his sons of opening branches coast-to-coast. Bank of America, nonetheless, remained a powerhouse in California and a cornerstone of the West Coast business establishment. This is why protesters, in one of the iconic episodes of the movement against the war in Vietnam, chose to burn down its branch near the University of California at Santa Barbara in 1970.
In 1985 Bank of America ended a ten-year battle with the California state controller by agreeing to pay $25.4 million to customers whose dormant accounts were not paid interest and were eventually wiped out by illegal service charges. A decade later, California’s attorney general sued Bank of America, accusing it of corruption in its role as bond trustee for the state by misappropriating funds, overcharging for services and destroying evidence of its misdeeds. Dozens of local governments joined the suit, which created potential liability for the bank of some $3 billion. As SF Weekly put it in a 5,000-word story in 1997, the lawsuits alleged “a truly astonishing pattern of utterly brazen thievery.” In 1998 Bank of America agreed to pay $187 million to settle the case.
Merging with NationsBank
After a particularly rough period stemming from exposure to third world debt and other risky loans, Bank of America resumed an aggressive growth posture, taking over its California rival Security Pacific in 1992 and failed thrifts in various western states. Despite these moves, Bank of America felt it could not survive unless it joined forces with an even larger financial institution. As a merger partner it chose NationsBank, whose roots went back to the founding of Commercial National Bank in Charlotte, North Carolina in 1874. Various mergers over the following decades led to the formation in 1960 of North Carolina National Bank, which in 1968 established the holding company NCNB Corp.
After Hugh McColl, Jr., a brash ex-Marine who was called “the George Patton of banking,” took over as CEO in 1983, NCNB went on an acquisitions binge as it sought to break down the barriers to full interstate banking. Among its biggest purchases were First RepublicBank in Texas, which had been taken over by federal regulators, and C&S/Sovran. The latter deal, approved by the Federal Reserve in 1991, turned NCNB into one of the country’s most powerful financial institutions, which McColl marked by changing the company’s name to NationsBank. The newly named banking giant went on to make acquisitions such as St. Louis-based Boatmen’s Bancshares and Barnett Banks in Florida.
It also joined the effort to break down the barriers between commercial banking and investment banking by purchasing Montgomery Securities. NationsBank ran into legal problems after it adopted high-pressure tactics in its securities businesses. In 1997 it agreed to pay $29 million to settle a class action suit alleging that its brokerage joint venture with Dean Witter had engaged in deceptive sales practices.
The combination of NationsBank and Bank of America took effect in 1998. Although NationsBank was technically the surviving entity and McColl became its chief executive, the name chosen for the new company was Bank of America, with headquarters in Charlotte.
The new Bank of America continued to grapple with legal problems it inherited from the old one and from its predecessors. In 2000 BofA agreed to pay $35 million to settle a class action suit alleging that it had charged excessive fees to trust account beneficiaries. In 2002 BofA paid $490 million to settle a suit by shareholders alleging that they had not been notified of significant trading losses in the period leading up to the NationsBank takeover. In 2004, just before BofA shareholders were to vote on the $48 billion acquisition of FleetBoston, the two banks agreed to a $675 million settlement of charges of improper mutual fund trading practices; they also agreed to exit the mutual fund business. BofA also paid to settle lawsuits concerning its dealings with corporate criminals Enron ($69 million) and WorldCom ($460 million).
The Ill-Fated Countrywide Financial and Merrill Lynch Deals
In July 2008 BofA completed the acquisition of the giant mortgage lender Countrywide Financial, which was becoming notorious for pushing borrowers, especially minority customers, into predatory loans and was growing weaker from the large number of those loans that were going into default.
Amid the financial meltdown in September 2008, BofA was pressured to take over the venerable but teetering investment house of Merrill Lynch, to prevent it from following Lehman Brothers into collapse.
Merrill Lynch came with a checkered history. In 1998 it had to pay $400 million to settle charges that it helped push Orange County, California into bankruptcy four years earlier with reckless investment advice. In 2002 it agreed to pay $100 million to settle charges that its analysts skewed their advice to promote the firm’s investment banking business (plus another $100 million the following year). In 2003 it paid $80 million to settle allegations relating to dealings with Enron. In 2005 industry regulator NASD (now FINRA) fined Merrill $14 million for improper sales of mutual fund shares. In an early indicator of the problem of toxic assets, Merrill announced an $8 billion write-down in 2007. Its mortgage-related losses would climb to more than $45 billion.
BofA participated in the federal government’s Troubled Assets Relief Program (TARP), initially receiving $25 billion and then another $20 billion in assistance to help it absorb Merrill, which reported a loss of more than $15 billion in the fourth quarter of 2008. It later came out that while Merrill was racking up losses it paid out $10 million or more to 11 top executives. It was also belatedly revealed that Federal Reserve chairman Ben Bernanke and then-Treasury Secretary Henry Paulson had pressured BofA to conceal the extent of the financial mess at Merrill until after shareholders approved the acquisition. In the wake of that revelation, BofA shareholders stripped chief executive Kenneth Lewis of his additional post as chairman. Lewis later resigned from the CEO position as well.
In August 2009 BofA agreed to pay $33 million to settle SEC charges that it misled investors about more than $5 billion in bonuses that were being paid to Merrill employees at the time of the firm’s acquisition. In February 2010 the SEC announced a new $150 million settlement with BofA concerning the bank’s failure to disclose Merrill’s “extraordinary losses.” At the same time, New York Attorney General Andrew Cuomo filed civil fraud charges against Lewis personally, as well as BofA’s former chief financial officer Joseph Price for “duping shareholders and the federal government.”
In May 2011 FINRA fined Merrill $3 million for misrepresenting loan delinquency data when selling residential subprime mortgage securities, and in October 2011 fined it $1 million for failing to properly supervise one of its registered representatives who was operating a Ponzi scheme. More FINRA fines came in 2012: $1 million for failing to arbitrate disputes with employees; $2.8 million (plus $32 million in remediation) for unwarranted fees; and $500,000 for failing to file hundreds of required reports. In December 2011 BofA agreed to pay $315 million to settle a class-action suit alleging that Merrill had deceived investors when selling mortgage-backed securities. June 2012 court filings in a shareholder lawsuit against BofA provided more documentation that bank executives knew in 2008 that the Merrill acquisition would depress BofA earnings for years to come but failed to provide that information to shareholders. In September 2012 BofA announced that it would pay $2.43 billion to settle the litigation.
The Countrywide acquisition also came back to haunt BofA. In June 2010 it agreed to pay $108 million to settle federal charges that Countrywide’s loan-servicing operations had deceived homeowners who were behind on their payments into paying wildly inflated fees. Four months later, Countrywide founder Angelo Mozilo reached a $67.5 million settlement of civil fraud charges brought by the SEC. As part of an indemnification agreement Mozilo had with Countrywide, BofA paid $20 million of the settlement amount, which consisted of a $22.5 million penalty (a record amount for a case against a public company executive) and $45 million in “disgorgement of ill-gotten gains.” A criminal case against Mozilo was shelved.
In May 2011 BofA reached a $20 million settlement of Justice Department charges that Countrywide had wrongfully foreclosed on active duty members of the armed forces without first obtaining required court orders. And in December 2011 BofA agreed to pay $335 million to settle charges that Countrywide had discriminated against minority customers by charging them higher fees and interest rates during the housing boom. In mid-2012 the Wall Street Journal reported that “people close to the bank” estimated that Countrywide had cost BofA more than $40 billion in real estate losses, legal expenses and settlements with state and federal agencies.
BofA faced its own charges as well. In December 2010 it agreed to pay a total of $137.3 million in restitution to federal and state agencies for the participation of its securities unit in an alleged conspiracy to rig bids in the municipal bond derivatives market. In January 2011 BofA agreed to pay $2.8 billion to Fannie Mae and Freddie Mac to settle charges that it sold faulty loans to the housing finance agencies. In September 2011 the Federal Housing Finance Agency sued BofA and other firms for abuses in the sale of mortgage-backed securities to Fannie Mae and Freddie Mac.
BofA was one of five large mortgage servicers that in February 2012 consented to a $25 billion settlement with the federal government and state attorneys general to resolve allegations of loan servicing and foreclosure abuses. An independent monitor set up to oversee the settlement reported in August 2012 that BofA had not yet completed any modifications of first-lien mortgages or any refinancings. The New York Attorney General later sued BofA for breaching the terms of the foreclosure settlement.
In September 2012 BofA settled federal allegations that it discriminated against recipients of disability income. In January 2013 BofA was one of ten major lenders that agreed to pay a total of $8.5 billion to resolve claims of foreclosure abuses. At the same time, BofA by itself agreed to pay $10.3 billion ($3.6 billion in cash and $6.75 billion in mortgage repurchases) to Fannie Mae to settle a new lawsuit concerning the bank’s sale of faulty mortgages to the agency. BofA also agreed to sell off about 20 percent of its loan servicing business.
In April 2013 the National Credit Union Administration announced that BofA had agreed to pay $165 million to settle claims relating to losses from the purchases of residential mortgage-backed securities.
In May 2013 BoA agreed to pay $1.7 billion to MBIA to settle a long-running lawsuit in which the bond insurer had sued Countrywide for misleading it about the quality of mortgages packaged into securities that MBIA agreed to insure.
In August 2013 the Justice Department filed a civil suit charging BofA and its Merrill Lynch unit of defrauding investors by making misleading statements about the safety of $850 million in mortgage-backed securities sold in 2008.
In October 2013 a federal jury found BofA's Countrywide unit liable for the sale of defective mortgages to Fannie Mae and Freddie Mac. A former Countrywide midlevel manager, Rebecca Mairone, was found individually liable in the civil fraud case.
In December 2013 Freddie Mac announced that BofA had agreed to pay $404 million to settle claims by the mortgage agency that the bank had sold it hundreds of thousands of defective home loans.
That same month, the SEC announced that BofA would pay $131.8 million to settle allegations that Merrill Lynch had misled investors about collateralized debt obligations.
Bank of America has been repeatedly accused of violating federal overtime pay laws and has paid out millions to settle various cases. These include settlements of $22 million in 2001, $4 million in 2003 and $9 million in 2005. A suit seeking national class action status was filed in 2010.
In August 2013 it was reported that BofA and Merrill would pay $160 million to settle a racial discrimination case involving 700 brokers, and the following month they agreed to pay $39 million to settle a gender discrimination suit.
Watchdog Groups and Campaigns
Key Books and Reports
A.P. Giannini: Banker of America by Felice Bonadio (University of California Press, 1994).
Before the Bailout of 2008: New York City’s Experience with Tax Giveaways to Financial Giants by Bettina Damiani and Allison Lack (Good Jobs New York, February 2009).
Dirty Money: U.S. Banks at the Bottom of the Class (Rainforest Action Network, BankTrack and Sierra Club, 2012.
Dividend Tax Abuse: How Offshore Entities Dodge Taxes on U.S. Stock Dividends (Senate Permanent Subcommittee on Investigations, September 2008).
The Predators’ Creditors: How the Biggest Banks are Bankrolling the Payday Loan Industry by Kevin Connor and Matthew Skomarovsky (National People’s Action and Public Accountability Initiative, September 2010).
Take and Give: The Crimes and Philanthropy of Bank of America, Wells Fargo, Goldman Sachs and JPMorgan Chase by Sean Dobson (National Committee for Responsive Philanthropy, January 2013).
Last updated December 19, 2013
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