Lawyers and Activists Call for Break-Up of Bank of America


Some of the nations’ leading banking law professors are calling for the break-up of Bank of America.

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In a petition to Treasury Secretary Timothy F. Geithner and Ben S. Bernanke, chairman of the Federal Reserve — who are the chairman and vice chairman of the Financial Stability Oversight Council, respectively — the scholars, and their fellow activists, led by Public Citizen, argue that the bank is too big to be either governed or regulated, and represents a real risk to the financial system. They are urging Mr. Geithner and Mr. Bernanke to use their power under Dodd-Frank to break up the bank, in a manner somewhat reminiscent of the breakup of AT&T three decades ago.

While a forcible break-up of Bank of America would be exactly the kind of bold move on financial regulation that we have not seen at all from the Obama administration, the petition does have a point.

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The bank is a behemoth, and if it were ever necessary to unwind it, I think we have to assume it would be something of a disaster, the Federal Deposit Insurance Corporation’s fondness for its new orderly liquidation authority notwithstanding. For example, Lehman Brothers reported assets of $713 billion while it filed for bankruptcy in September 2008. Bank of America, meanwhile, reported $2.3 trillion in assets at the end of 2010. In other words, Bank of America is more than three times larger than the biggest bankruptcy ever.

Think the collapse of MF Global was a problem? Bank of America broker-dealer units hold more than $2.2 trillion in client assets. The bank reports that in the United States alone it has more than 57 million consumer and small-business banking relationships. It holds more than $1 trillion in banking deposits.

The bank’s chief executive, Brian T. Moynihan, might welcome a break-up, at least in part (and no doubt privately).

For one thing, he has already expressed a desire to return to the bank’s “core” business. And there is still the lingering possibility that he might cleave off the mortgage lender Countrywide Financial into a bankruptcy process, messy though that would be.

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