SecProbe.io

CORRESP
1
filename1.htm

LETTER TO THE S.E.C.

PRIVILEGED AND CONFIDENTIAL

October 29, 2008

Securities and Exchange Commission

Division of Corporation Finance

100 F Street, N.E.

Washington, D.C. 20549

    Attention:

    Christian Windsor

Kathryn McHale

Angela Connell

Hugh West

    Re:

    Bank of America Corporation

    Amendment No. 1 to Registration Statement on Form S-4

    Filed October 22, 2008

    File No. 333-153771

    Bank of America Corporation

    Form 10-Q for June 30, 2008, filed August 7, 2008

    File Number 001-06523

Ladies and Gentlemen:

     On behalf of Bank of America Corporation (“Bank of America”), we hereby submit the responses
of Bank of America and Merrill Lynch & Co., Inc. (“Merrill Lynch”) to the comments of the staff
(the “Staff”) of the Securities and Exchange Commission (the “Commission”) set forth in the letter
from the Division of Corporation Finance dated October 27, 2008, with respect to the
above-referenced filings.

     This letter and Bank of America’s Amendment No. 2 (the “Amendment”) to the Registration
Statement on Form S-4 (File No. 333-153771) are being filed with the Commission electronically via
the EDGAR system today. In addition to the EDGAR filing, we are delivering a hard copy of this
letter, along with a courtesy copy of the Amendment marked to indicate changes from the version
filed on October 22, 2008.

     For the convenience of the Staff, each of the Staff’s comments is reproduced below and is
followed by the corresponding response of Bank of America or Merrill Lynch, as applicable. All
references to page numbers in these responses are to the pages in the marked version of the
Amendment.

PRIVILEGED AND CONFIDENTIAL

Securities and Exchange Commission

October 28, 2008

Page 2

Merrill Lynch’s Executive Officers and Directors have Financial Interests..., page 10

    1.

    We note the 8-K filed by Bank of America on October 8, 2008 regarding Mr. Thain’s employment.
With regard to Mr. Thain or other officers you have offered to retain, please include any
compensation arrangements Bank of America has agreed to in connection with their continued
employment.

Response:

The
Staff is supplementally advised that the disclosures on pages 10, 69
and 75 of the
Amendment continue to be accurate; as disclosed on pages 10 and 75, Bank of America has not
reached agreement with Mr. Thain or any other executive officers of Merrill Lynch on
compensation arrangements in connection with their continued employment following completion
of the merger.

Legality Opinion, Exhibit 5

    2.

    Revise the final paragraph of the opinion to remove the limitation as to persons who can rely
on the opinion.

Response:

Pursuant to the Staff’s comment, the opinion has been revised and is included as Exhibit
5(a) to the Amendment.

    3.

    Please confirm your intention to refile this opinion immediately prior to effectiveness or
revise the last sentence of your opinion so that it is valid as of the date of effectiveness,
rather than the “date hereof.”

Response:

Pursuant to the Staff’s comment, the opinion has been revised and is included as Exhibit
5(a) to the Amendment.

Tax Opinions, Exhibits 8.A and 8.B

    4.

    Both Wachtell Lipton and Shearman & Sterling provide opinions that opine that
the disclosure in the section titled United States Federal Income Tax Consequences is “accurate
in all material respects.” Item 601(h)(8) of Regulation S-K, requires an opinion regarding the
material federal income tax consequences of the merger, rather than an opinion addressing the
accuracy of the disclosure in registration statement. Please provide opinions of counsel that opine on the material federal income tax
consequences.

2

PRIVILEGED AND CONFIDENTIAL

Securities and Exchange Commission

October 28, 2008

Page 3

Response:

Pursuant to the Staff’s comment, the opinions have been revised and are included as Exhibits
8(a) and 8(b) to the Amendment.

Form 10-Q for Quarterly Period Ended June 30, 2008:

Notes to Consolidated Financial Statements

Note 11 — Commitments and Contingencies

Litigation and Regulatory Matters, page 26

    5.

    We note your response to comment 21 of our letter dated October 15, 2008 and acknowledge
previous communications with the staff in this regard. We understand that facts and
circumstances in this area (i.e., litigation and contingencies) are often revisited and
brought current. We emphasize however, in future filings (starting with your September 30,
2008 Form 10-Q) your disclosure should reconcile to the required disclosures of SFAS 5,
specifically paragraph 10. In this regard, you maybe required to disclose litigation and loss
contingencies (i.e., range of possible loss, etc.) even when amounts are not accrued because
it could not be reasonably estimated. Refer to footnote 6 to paragraph 10 of SFAS 5. As it
relates to our current review, we will not object to your disclosure; we may however have
comments in future reviews.

Response:

We acknowledge the Staff’s comment and will make appropriate disclosures in future filings.

*****

     Please contact the undersigned (telephone no. 212-403-1381) or Ross A. Fieldston (telephone
no. 212-403-1340) of Wachtell, Lipton, Rosen & Katz, counsel to Bank of America, or John A.
Marzulli Jr. (telephone no. 212-848-8590) or Scott D. Petepiece (telephone no. 212-848-8576) of
Shearman & Sterling LLP, counsel to Merrill Lynch, should you require further information or have
any questions.

    Sincerely,

    /s/ Nicholas G. Demmo

    Nicholas G. Demmo

3