Amicus Curiae Brief — Northeast Bancorp, Inc. v. Board of Governors, FRS

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

NORTHEAST BANCORP, INC.,

UNION TRUST COMPANY and CITICORP,

Petitioners,

against

THE BOARD OF GOVERNORS OF

THE FEDERAL RESERVE SYSTEM,

Respondent,

and

BANK OF NEW ENGLAND CORPORATION,

CBT CORPORATION, HARTFORD NATIONAL

CORPORATION, THE COMMONWEALTH OF

MASSACHUSETTS, THE STATE OF CONNECTICUT and

BANK OF BOSTON CORPORATION,

Intervenor-Respondents.

On Writ of Certiorari to the United States Court of Appeals for

the Second Circuit

MOTION ON BEHALF OF THE

DAVID F. BOLGER REVOCABLE TRUST FOR

LEAVE TO FILE BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONERS AND

BRIEF AMICUS CURIAE

William A. Harvey

Counsel of Record for Amicus Curiae,

The David F. Bolger Revocable Trust

1401 Walnut Street

Philadelphia, PA 19102

(215) 568-6060

Of Counsel:

Edward S. Ellers

Rona J. Rosen

William R. Thompson

FELLHEIMER, EICHEN & GOODMAN

1401 Walnut Street

Philadelphia, PA 19102

Counsel for Amicus Curiae,

The David F. Bolger Revocable Trust

PACKARD PRESS / LEGAL DiVISION, 10th & SPRING GARDEN STREETS, PHILA., PA. 19123 (215) 236-2000

No. 84-363

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

NORTHEAST BANCORP, INC.,

UNION TRUST COMPANY and CITICORP,

Petitioners,

against

THE BOARD OF GOVERNORS OF

THE FEDERAL RESERVE SYSTEM,

Respondent,

and

BANK OF NEW ENGLAND CORPORATION,

CBT CORPORATION, HARTFORD NATIONAL

CORPORATION, THE COMMONWEALTH OF

MASSACHUSETTS, THE STATE OF CONNECTICUT and

BANK OF BOSTON CORPORATION,

Intervenor-Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

MOTION ON BEHALF OF THE

DAVID F. BOLGER REVOCABLE TRUST

FOR

LEAVE TO FILE BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

The David F. Bolger Revocable Trust hereby re-

spectfully moves for leave to file the attached brief

Amicus Curiae in this case. The consent of the attorneys

]

2

for the Petitioners Citicorp, Northeast Bancorp, Inc. and

Union Trust Company has been obtained. The consent

of the attorney for the Respondent The Federal Reserve

Board has been obtained. The consent of the attorneys

for the Intervenor-Respondent The Commonwealth of

Massachusetts has been obtained. The consent of the at-

torneys for the Intervenor-Respondents The State of

Connecticut, Bank of New England Corporation, CBT

Corporation, Hartford National Corporation, and Bank of

Boston Corporation was requested but refused.

The David F. Bolger Revocable Trust (“The Bolger

Trust”), is a trust formed and existing under the laws of

the State of New Jersey. The Bolger Trust is the owner

of 107,300 shares or approximately 5% of all the out-

standing common stock of RIHT Financial Corporation

(“RIHT”). RIHT is a bank holding company within the

meaning of Section 2(a)(1) of the Bank Holding Com-

pany Act of 1956, as amended, 12 U.S.C. §1841 et seq.

(“BHCA”), with its principal place of business in Rhode

Island. On August 20, 1984, the Board of Governors of

the Federal Reserve System approved the acquisition of

RIHT by Bank of Boston Corporation (“BBC”), a bank

holding company within the meaning of Section 2(a)(1)

of the BHCA with its principal place of business in Mas-

sachusetts (“BBC-RIHT Merger”). The BBC-RIHT

Merger is being effected pursuant to two reciprocal re-

gionally restrictive banking statutes, Mass. Gen. Laws

Ann. ch. 167A §2 (“The Massachusetts Act”) and R.I.

Pub. Law S. 0661 Sub A (“The Rhode Island Act’).

The interest of The Bolger Trust in this case arises

from the fact that it is a party to cases presently pending

in the United States Court of Appeals for the First Cir-

cuit, Michael Biszko, Jr., et al. vs. RIHT Financial Corp.,

et al., No. 84-1579, and in the United States Court of Ap-

peals for the Second Circuit, The David F. Bolger Revo-

cable Trust vs. Board of Governors of the Federal Re-

serve System, No. 84-4141, challenging the BBC-RIHT

Merger. Those cases involve the same issue as is before

3

the Court in this case, namely, the constitutionality of a

merger based on regionally restrictive interstate banking

statutes. The Massachusetts Act, one of the statutes

upon which the BBC-RIHT Merger is grounded, is be-

ing challenged in the instant case. BBC, the prospective

acquiror in the BBC-RIHT Merger, is an Intervenor-Re-

spondent in the instant case.

A substantial number of bank holding companies

are public companies owned by large numbers of share-

holders, such as the proposed Amicus Curiae, The

Bolger Trust. The shareholders of those bank holding

companies have interests unrepresented by the Petition-

ers, who represent only the interests of competing banks

and bank holding companies. Indeed, the interest of the

competing banking institutions is to penetrate and ob-

tain a share of the market, not to maximize share values

of potential targets. In fact, it is in an acquiring bank’s

best interest that the acquiree’s stock price be de-

pressed. The shareholders of targeted bank holding

companies, on the other hand, seek to maximize the

value of their investment and realize as high a price as

possible for their stock. Accordingly, the interests of the

Amicus Curiae are not identical to that of the Petitioners

and are not well represented by the Petitioners’ brief be-

low.

The Bolger Trus. seeks to demonstrate in its Brief

that regionally restrictive interstate banking statutes

harm the shareholders of bank holding companies, who

would otherwise benefit from the opportunities afforded

by non-discriminatory interstate banking. Specifically,

the discriminatory interstate banking statutes affect the

market value of the shareholders’ property by limiting

the attractiveness and value of their stock, by limiting

the number of potential acquirors of bank holding com-

panies thereby lessening competition and necessarily re-

sulting in a lower acquisition price, and by limiting or

impairing the ability of the bank holding companies to

raise capital.

4

The Petitioners did not argue in the Court of Ap-

peals the effect of the discriminatory interstate banking

compacts on shareholders. Since it is likely that the Peti-

tioners will pursue the same course in this Court, it is

believed that the brief which the proposed Amicus

Curiae is requesting permission to file will contain a

more complete argument as it relates to shareholders. If

this argument is accepted it would be dispositive of the

case.

WHEREFORE, The David F. Bolger Revocable

Trust respectfully requests leave of this Court to file the

attached brief as an Amicus Curiae.

Respectfully submitted:

isd Soop

William A. Harvey, Esquire

Counsel of Record for Amicus 2 uriae,

The David F. Bolger Revocable Trust

1401 Walnut Street

Philadelphia, PA 19102

(215) 568-6060

Of Counsel:

Edward S. Ellers

Rona J. Rosen

William R. Thompson

FELLHEIMER, EICHEN & GOODMAN

1401 Walnut Street

Philadelphia, PA 19102

Counsel for Amicus Curiae,

The David F. Bolger Revocable Trust

No. 84-363

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

NORTHEAST BANCORP, INC.,

UNION TRUST COMPANY and CITICORP,

Petitioners,

against

THE BOARD OF GOVERNORS OF

THE FEDERAL RESERVE SYSTEM,

Respondent,

and

BANK OF NEW ENGLAND CORPORATION,

CBT CORPORATION, HARTFORD NATIONAL

CORPORATION, THE COMMONWEALTH OF

MASSACHUSETTS, THE STATE OF CONNECTICUT and

BANK OF BOSTON CORPORATION,

Intervenor-Respondents.

On Writ of Certiorari to the United States Court of Appeals for

the Second Circuit

BRIEF OF AMICUS CURIAE THE

DAVID F. BOLGER REVOCABLE TRUST IN

SUPPORT OF PETITIONERS

William A. Harvey

Counsel of Record for Amicus Curiae,

The David F. Bolger Revocable Trust

1401 Walnut Street

Philadelphia, PA 19102

(215) 568-6060

Of Counsel:

Edward S. Ellers

Rona J. Rosen

William R. Thompson

FELLHEIMER, EICHEN & GOODMAN

1401 Walnut Street

Philadelphia, PA 19102

Counsel for Amicus Curiae,

The David F. Bolger Revocable Trust

TABLE OF CONTENTS

Page

Interest of the Amicus Curiae ................ 1

eee ee rs eee es eee eee ee ee 6

I. The Massachusetts and Connecticut Acts Vio-

late the Commerce Clause ............... 6

A. The Regionally Restrictive Statutes Consti-

tute an Impermissible Burden on Interstate

0 FE ee eee ee ee eee eee 6

B. The Douglas Amendment Does Not Author-

ize the Massachusetts and Connecticut

poh da thas ee b re nee eee ek aw a 13

II. The Massachusetts and Connecticut Acts Vio-

late the Compact Clause ................. 17

RS ee Pr re a a Pee ee eee 20

cE I cree rere 22

TABLE OF AUTHORITIES

Cases:

Bacchus Imports, Ltd. v. Dias, U.S. _._., 104

a ree 6, 7,9

Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55

ee er 7

Biszko, et al. v. RIHT Financial Corporation, et al.

¢ oe BY SS errrrr rer rrr er 2

Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324

(IR ere SE Ge my ee pee eer 7

Conference of State Bank Supervisors v. Conover,

715 F.2d 604 (D.C. Cir. 1983), cert. denied,

___ U.S. ___, 104 S.Ct. 1708 (1984) ...... 16

TABLE OF AUTHORITIES—(Continued)

Cases: Page

David F. Bolger Revocable Trust v. Board of Gover-

nors of the Federal Reserve System (2nd Cir.

ee ED 3.65 5p. Kes ee dk ee ices 2

Delaware River Joint Toll Bridge Comm. v. Colburn,

310 U.S. 419, 60 S.Ct. 1039 (1940) ........ 19

H.P. Hood and Sons, Inc. v. Du Mond, 336 U.S. 525,

og Perry eee ree 7

Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727

ae re a ree 6, 7, 8, 19

Hunt v. Washington State Apple Advertising Com-

mission, 432 U.S. 333, 97 S.Ct. 2434 (1977) 7

Iowa Independent Bankers v. Board of Governors of

the Federal Reserve System, 511 F.2d 1288

(D.C. Cir.), cert. denied, 423 U.S. 875, 96 S.Ct.

anette Ene gr oat oe. os eae 12, 16

Lewis v. BT Investment Managers, Inc.,-447 U.S.

27, 100 S.Ct. BOGS (IGBO) .. wc eee 13, 16

Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456, 101 S.Ct. 715, reh. denied, 450 U.S. 1027,

gos Be Ty | ree 6,8

New England Power Co. v. New Hampshire, 455

U.S. 331, 102 S.Ct. 1096 (1982) .......... 14

New Hampshire v. Maine, 426 U.S. 363, 96 S.Ct.

DOPED «dhl vecke Ces eeReeee ee eee ae 18

Northeast Bancorp, Inc. v. Board of Governors of

the Federal Reserve System, 740 F.2d 203 (2nd

Cir. 1984), cert. granted, U.S. ___., 105

PEN, ben oas 6 Secu n dou kee 18

Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct.

gf re eee ee 6, 7, 8, 13

Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct.

rere ee ee eu 8

TABLE OF AUTHORITIES—(Continued)

Cases: Page

Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97

S.Ct. 926, reh. denied, 430 U.S. 976, 97 S.Ct.

EE sce hs iedesiunueabeteuan es 14

South-Central Timber Development, Inc. v.

Wunnicke, U.S. ___., 104 S.Ct. 2237

DN sun ad ae x uedn eee a aah cue hoes 14,15

Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941,

fl ie. ree Se rarer 14

State ex rel. Dyer v. Sims, 341 U.S. 22, 71 S.Ct. 557

Es i eg ewe ae We dh ae ch aac oe 19

Texas v. New Mexico, 462 U.S. 554, 103 S.Ct. 2558

SS os ha we Ce EE OR ee ee PS 19

Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, reh.

denied, 335 U.S. 837, 69 S.Ct. 12 (1948) ... 7

United States Steel Corp. v. Multistate Tax Com-

mission, 434 U.S. 452, 98 S.Ct. 799 (1978) 18, 19

Virginia v. Tennessee, 148 U.S. 503, 13 S.Ct. 728

| Pe reer: ere eee re 18

Washington Metropolitan Area Transit Authority

v. One Parcel of Land, 706 F.2d 1312 (4th Cir. ),

cert. denied, _____ —US. , 104 S.Ct. 238

I ear eon, Siar Re Se Ge a ag 19

Welton v. Missouri, 91 U.S. 275 (1876) ........ 8

Western and Southern Life Insurance Co. v. State

Board of Equalization of California, 451 U.S.

648, 101 S.Ct. 2070 (1981) ............... 6

Statutes:

U.S. Const. art. I, §8, cl. 3 (Commerce Clause) .. 6

U.S. Const. art. I, §10, cl. 3 (Compact Clause)... 17

TABLE OF AUTHORITIES—(Continued)

Statutes: Page

12 U.S.C. §1841, et seq. (The Bank Holding Com-

Sy SU Feo a5 4 oa Gee ca peeeeee kobe ase ek 1.2

12 U.S.C. §1842(d) (Douglas Amendment) ..... 14

1983 Conn. Act 83-411 (Reg. Sess.) ........... ae

ee en A Oe ee i es cw nek ees 11

lowa Code Anm. $534.1G06 ..........cccccees 12

Mass. Gen. Laws Ann. ch. 167 A §2 ........... ]

Md. Fin. Inst. Code Ann. §5-901 .............. 1]

Neb. Rev. Stat. §8-903 (Supp. 1983) ........... 11

'e, OF 5 fl UY ee re ]

S.D. Compiled Laws Ann. §§51-16-40 — 51-16-44

EEE, GN 64545 66 ou b hada a eee ress 11

Other Authorities:

Hawke, Are State Laws Permitting Interstate

Banking Constitutional? American Banker

Ce us EE «sg ko sh ec une ae waa 10

iv

INTEREST OF THE AMICUS CURIAE

The David F. Bolger Revocable Trust (“The Bolger

Trust”) is a trust formed and existing under the laws of

the State of New Jersey. The Bolger Trust is the owner

of a 107,300 shares or approximately 5% of all the out-

standing common stock of RIHT Financial Corporation

(“RIHT”). RIHT is a bank holding company within the

meaning of Section 2(a)(1) of the Bank Holding Com-

pany Act of 1956, as amended, 12 U.S.C. §1841, et seq.

(“BHCA”), with its principal place of business in Rhode

Island.

On August 20, 1984, the Board of Governors of the

Federal Reserve System approved the acquisition of

RIHT by Bank of Boston Corporation (“BBC”), a bank

holding company within the meaning of Section 2(a)(1)

of the BHCA, with its principal place of business in Mas-

sachusetts (“BBC-RIHT Merger”). The BBC-RIHT

Merger is being effected pursuant to two reciprocal re-

gionally restrictive banking statutes, Mass. Gen. Laws

Ann. ch. 167(a) §2 (“The Massachusetts Act”) (Pet.

A101)! and R.I. Pub. Law S. 0661 Sub. A (“The Rhode

Island Act’) (Pet. A103). The Rhode Island Act took ef-

fect on July 1, 1984, and, from its effective date until

July 1, 1986, permits only New England (i.e., Massa-

chusetts, Maine, Rhode Island, New Hampshire, Con-

necticut or Vermont) bank holding companies to acquire

Rhode Island banks, and only if the New England state

in which the principal operations of the acquiring bank

holding company are conducted has granted reciprocal

rights to Rhode Island bank holding companies. Under

the Rhode Island Act, and to the extent reciprocal provi-

1. The Massachusetts Act, part of the New England Compact,

is being challenged in the case before the Court as it authorizes the

mergers of Bank of New England Corporation “BNE” and CBT Cor-

poration “CBT”, Hartford National Corporation “HNC” and Arltru

Bancorporation, Inc. “Arltru”, and Bank of Boston Corporation

“BBC” and Colonial Bancorp, Inc. “Colonial”

]

2

sions have been enacted by other New England states,

bank holding companies which have their principal

places of business in and which are not owned by a com-

pany with its principal place of business outside of New

England would be allowed to establish and/or acquire di-

rect or indirect control of full service banks as defined in

Section 2(c) of the BHCA in Rhode Island. Bank holding

companies which are not based in New England are

necessarily precluded from acquiring bank holding com-

panies based in New England, such as RIHT.

The Rhode Island Act will, at least during the two

year period between 1984 and 1986, be found to meet

the reciprocity provisions of 1983 Conn. Act 83-411

(“Connecticut Act’) (Pet. A97)? and the Massachusetts

Act. Likewise, the Connecticut and Massachusetts Acts

will be found to meet the reciprocity provisions of the

Rhode Island Act. Significantly, the Rhode Island Act,

unlike the Connecticut and Massachusetts Acts, author-

izes complete reciprocal interstate banking in Rhode Is-

land after July 1, 1986.

The Bolger Trust is vitally interested in the constitu-

tional questions involved in the instant case as they re-

late to the regionally restrictive interstate banking stat-

utes. Indeed, The Bolger Trust is a party to cases

challenging the constitutionality of the BBC-RIHT

Merger and the Rhode Island Act, presently pending in

the United States Courts of Appeals for the First Circuit,

Michael Biszko, Jr., et al. v. RIHT Financial Corpora-

tion, et al., No. 84-1579, and in the United States Court

of Appeals for the Second Circuit, The David F. Bolger

Revocable Trust v. Board of Governors of the Federal Re-

serve System, No. 84-4141.

Shareholders of New England bank holding compa-

nies subject to regionally restrictive interstate banking

2. The Connecticut Act, part of the New England Compact, is

also being challenged in the case before the Court for the reasons

set forth in footnote 1, supra.

3

statutes, such as The Bolger Trust, are injured by the ir-

rational geographic limitations imposed by these stat-

utes on non-New England banking institutions and

companies, in ways separate and distinct from the harm

claimed by banking institutions, such as Petitioner

Citicorp, who are excluded from competition by the

challenged Acts. Those excluded institutions are inter-

ested in penetrating and attaining a share of the New

England market In contrast, shareholders of targeted

New England banking institutions seek to maximize the

value of their investment and realize as high a price as

possible for theix stock.

The Massachusetts, Connecticut and Rhode Island

Acts’ insulation vf New England banks from acquisition

by non-New England banks directly harms sharehold-

ers, such as Amicus Curiae, by limiting the number of

potential acquirors for targeted bank holding companies

such as RIHT. This limitation on competition necessar-

ily results in a lower acquisition price being paid by ac-

quiring banks for New England bank stock than would

be the case if there were no regional restrictions on com-

petition. In reality, few New England banking institu-

tions are financially able to acquire other New England

bank holding companies. Therefore, the opportunity for

acquisition afforded by the New England regionally re-

Strictive statutes hardly creates a competitive situation.

A non-New England institution may be interested in ac-

quiring companies in Rhode Island as well as in Massa-

chusetts and Connecticut, because of those states’ prox-

imity to one another or for business reasons that

transcend geographical boundaries. A non-New Eng-

land bank interested in merging with a New England

bank is precluded from doing so by the challenged Acts.

Absent the regionally restrictive provisions, the share-

holders of New England banks would have more and

better offers for their stock. A larger pool of potential

acquirors would increase the value of a targeted New

England bank’s stock.

4

The discriminatory interstate banking statutes like-

wise harm shareholders such as Amicus Curiae by limit-

ing or impairing the ability of New England bank hold-

ing companies to raise capital, thereby affecting and

limiting the stock’s value. A primary means by which a

company, be it a bank or manufacturer, raises capital is

through equity offerings. There exists only a finite

amount of capital available for investment for which all

companies compete. An investor, when choosing where

to invest his capital, evaluates where, in the long or short

run, he will realize the highest yield and/or the greatest

appreciation. Clearly, in light of the recognized inevita-

bility of full interstate banking (Pet. A150-161), the Mas-

sachusetts, Connecticut and Rhode Island Acts render

New England bank holding companies less attractive to

investors than other banking institutions which come to

the market without restrictive geographic baggage.

More capital investors would choose to invest in a bank-

ing institution which will be able to reap the benefits of

full interstate banking rather than one, such as RIHT,

which might be acquired under the imprimatur of the

New England Compact prior to full interstate banking.

The challenged Acts’ regional restrictions also im-

pair the market value of the shareholders’ property by

lessening the attractiveness of their stock as an invest-

ment. As discussed above, the regional restraints impair

a New England bank holding company’s ability to raise

capital and, because of the absence of substantial com-

petition, to command receipt of the best possible acquisi-

tion price. Thus, the stock of a bank holding company

unaffected by the restraints of the New England Com-

pact will be a more attractive investment than stock of

an affected company. The greater attractiveness impacts

on the stock’s market value. Moreover, the discrimina-

tory regional restrictions weaken the resolve and ability

of incumbent management to maximize the value of the

shareholders’ stock, to resist inadequate offers, and to at-

5

tain the best possible offer. Under the existing reciprocal

legislative scheme, there are only a limited number of

potential acquirors. Thus, a targeted bank subject to the

New England Compact has limited options to fend off an

unwanted tender offer. Were acquisitions not subject to

regional restrictions, a wider universe of “white knights”

would exist to which a targeted bank could turn to maxi-

mize the amount to be received for the company’s stock.

For the reasons set forth above, Amicus Curiae is af-

fected by the regionally restrictive Massachusetts, Con-

necticut and Rhode Island Acts, in a manner separate

and distinct from Petitioners. Accordingly, Amicus

Curiae believes it is in a position to bring to the Court’s

attention added insight, which will enable the Court to

find that the regionally restrictive interstate banking

statutes are unconstitutional.

6

ARGUMENT

I. The Massachusetts and Connecticut Acts Violate the

Commerce Clause

A. THE REGIONALLY RESTRICTIVE STATUTES

CONSTITUTE AN IMPERMISSIBLE BURDEN ON IN-

TERSTATE COMMERCE

The Commerce Clause grants Congress the power

“Itlo regulate Commerce ... among the several

States. ...” U.S. Const., art. I, §8, cl.3. By implication,

the Commerce Clause has been interpreted to limit the

power of the states to interfere with or impose burdens

on interstate commerce. Western and Southern Life In-

surance Company v. State Board of Equalization of Cal-

ifornia, 451 U.S. 648, 652, 101 S.Ct. 2070, 2075 (1981).

Absent congressional action authorizing a particular

state regulation affecting interstate commerce, the

courts may properly decide whether such a state regula-

tion imposes improper burdens on interstate commerce.

See, e.g., Minnesota v. Clover Leaf Creamery Co., 449

U.S. 456, 101 S.Ct. 715, reh. denied, 450 U.S. 1027, 101

S.Ct. 1735 (1981); Philadelphia v. New Jersey, 437 U.S.

617, 98 S.Ct. 2531 (1978). In evaluating the constitu-

tionality of state legislation under the Commerce Clause,

the central principle which underlies the Commerce

Clause, namely the strong federal interest in preventing

economic balkanization, must be considered. Bacchus

Imports, Ltd. v. Dias, U.S. , 104 S.Ct. 3049,

3058 (1984). That principle was articulated by the Court

in Hughes v. Oklahoma, 441 U.S. 322, 325-26, 99 S.Ct.

1727, 1731 (1979), as follows:

The few simple words of the Commerce Clause —

‘The Congress shall have power ... To regulate

Commerce . .. among the several States . . ." — re-

flected a central concern of the framers that was an

immediate reason for calling the Constitutional

Convention: the conviction that in order to succeed,

7

the new Union would have to avoid the tendencies

toward economic Balkanization that had plagued re-

lations among the Colonies and later among the

States under the Articles of Confederation.

In Hughes, the Court cited to H.P. Hood and Sons, Inc.,

v. Du Mond, 336 U.S. 525, 537-538, 69 S.Ct. 657, 665

(1949), where it had said:

This principle that our economic unit is the Nation,

which alone has the gamet of powers necessary to

control the economy, including the vital power of

erecting customs barriers against foreign competi-

tion, has as its corollary that the states are not sep-

arable economic units. As the Court said in Baldwin

v. G.A.F. Seelig, Inc., 294 U.S. 511, 527, 55 S.Ct.

497, 502, 79 L.Ed. 1032, 101 A.L.R. 55, ‘What is ul-

timate is the principle that one state in its dealing

with another may not place itself in a position of

economic isolation.’

So important is the principle that states are not

“separable economic units” that there exists a virtual per

se rule of unconstitutionality regarding any state statute

which has simple economic protectionism rather than

the safeguarding of the health and safety of a state’s peo-

ple as its goal. Philadelphia v. New Jersey, supra, 437

U.S. at 623-624, 98 S.Ct. at 2535; H.P. Hood and Sons v.

Du Mond, supra, 336 U.S. at 538, 69 S.Ct. at 655:

Toomer v. Witsell, 334 U.S. 385, 403-406, 68 S.Ct. 1156,

1165-1167 (1948); Baldwin v. G.A.F. Seelig, supra, 294

U.S. at 527, 55 S.Ct. at 502; Buck v. Kuykendall, 267

U.S. 507, 315-316, 45 S.Ct. 324, 325-326 (1925). A find-

ing that state legislation constitutes economic protec-

tionism may be made on the basis of discriminatory pur-

pose, see Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333, 352-53, 97 S.Ct. 2434, 2446-

47 (1977), or on the basis of discriminatory effect. Bac-

chus Imports, Ltd. v. Dias, supra, U.S. at___, 104

8

S.Ct. at 3055. Legislation has a discriminatory effect

where it “overtly blocks the flow of interstate commerce

at a state’s borders.” Philadelphia v. New Jersey, supra,

437 U.S. at 624, 98 S.Ct. at 2535, citing Welton v. Mis-

souri, 91 U.S. 275 (1876); Minnesota v. Clover Leaf

Creamery Co., supra, 449 U.S. at 471, n. 15, 101 S.Ct. at

727, n. 15.

A more flexible approach under the Commerce

Clause is allowed only where legitimate state objectives

are credibly advanced, there is no patent discrimination

against interstate trade, and the effect on interstate com-

merce is incidental. See Philadelphia v. New Jersey,

supra, 437 U.S. at 624, 98 S.Ct. at 2535. The more flexi-

ble test is articulated in Pike v. Bruce Church, Inc., 397

U.S. 137, 142, 90 S.Ct. 844, 847 (1970) as follows:

Where the statute regulates even-handedly to effec-

tuate a legitimate local public interest, and its ef-

fects on interstate commerce are only incidental, it

will be upheld unless the burden imposed on such

commerce is clearly excessive in relation to the pu-

tative local benefits. . . . If a legitimate local purpose

is found, then the question becomes one of degree.

And the extent of the burden that will be tolerated

will of course depend on the nature of the local in-

terest involved, and on whether it could be pro-

moted as well with a lesser impact on interstate ac-

tivities.

See, also, Hughes v. Oklqhoma, supra, 441 U.S. at 331,

99 S.Ct. at 1733-34. Thus, only where the party averring

the validity of a state law establishes some legitimate

state purpose other than the protection of local business

will the Court apply a balancing test, measuring

whether some legitimate state purpose is served which

outweighs the incidental interference with interstate

commerce and whether some less burdensome alterna-

tive might not exist to accomplish the same purpose.

9

The Massachusetts, Connecticut, and Rhode Island

Acts are economic protectionist measures. An examina-

tion of the states’ purpose in enacting those Acts demon-

strates that the states are not entitled to the flexible ap-

proach permitting inquiry into the balance between local

benefits and the burden on interstate commerce. See

Bacchus Imports, Ltd. v. Dias, supra, U.S. at.

104 S.Ct. at 3055. The stated purpose of the New Eng-

land legislatures was to block trade at their borders as to

non-New England banking institutions, so as to enable

Massachusetts, Connecticut, and Rhode Island banking

institutions to grow and strengthen themselves on a re-

gional basis before full interstate banking and competi-

tion with money center banks becomes a reality (Pet.

A150-161). The Acts, in addition to their discriminatory

purpose, have a discriminatory effect: preclusion of non-

New England banking institutions, such as Petitioner

Citicorp, from competing on an equal footing with other

bank holding companies in the acquisition of Massachu-

setts, Connecticut and Rhode Island banks, and

preclusion of stockholders of New England banking in-

stitutions, such as Amicus Curiae The Bolger Trust,

from maximizing the value of their investment. This dis-

criminatory effect is more than merely incidental. In

fact, Respondent Board has conceded that, absent con-

gressional authorization to the contrary, the statutes in

question constitute the kind of burden on interstate

commerce “of the type that would be found by the

Courts to violate the Commerce Clause” (Pet. A58).

Moreover, neither the Acts nor their legislative his-

tory evidence a credible legitimate local public purpose

such as the furtherance of the health or safety of the

general citizens of Massachusetts, Connecticut, or

Rhode Island. The New England legislatures gave no at-

tention to the question of whether the interest of those

states’ citizens in the greatest variety of high quality

banking services would best be served by regionally re-

10

strictive statutes.* No evidence has been offered to dem-

onstrate that a Massachusetts bank holding company

can better appreciate the needs of Connecticut citizens

than could a New York bank holding company. As hu-

morously but aptly stated by John D. Hawke, Jr.,* in the

article, Are State Laws Permitting Interstate Banking

Constitutional?, American Banker (Dec. 15, 1982), “A

shared taste for milky clam chowder may not be suffi-

cient to warrant discrimination against those favoring

the tomato based variety.” (Pet. A180). Indeed, it would

appear that the many Connecticut citizens who work in

New York would be better served by a New York bank

holding company, in that they could handle their bank-

ing transactions through one institution both at their

place of residence and their place of business. This fact

was plainly recognized by economist and banking expert

Carter H. Golembe, who said that “there would appear to

be a much closer economic relationship between Con-

necticut and New York than between Connecticut and

Massachusetts when it comes to local banking markets

.... (Pet. A219). The regionally restrictive statutes dis-

qualify companies from acquiring or establishing Rhode

Island, Connecticut and Massachusetts banks solely on

the basis of the location of the principal place of business

of the acquiring company or its parent company. The

Acts premise entry into New England’s banking markets

not on specific determinations of whether a potential ac-

3. Other than giving lip service te the special concern exhib-

ited by New England banks for New England citizens, the legisla-

tures cite no credible examples to support that theory. Interestingly,

while the New England legislatures recognize that full interstate

banking already exists in their states as far as non-banking financial

institutions are concerned (e.g. money market funds) (Pet. A154-

155), they do not cite one example of any harm which non-New

England financial service organizations have caused their citizens.

or a lower level of service than that afforded by New England finan-

cial service organizations.

4. Mr. Hawke served as General Counsel to the Board of Gov-

ernors of the Federal Reserve System from 1975-1978.

1]

quisition will benefit local concerns, but rather on an

intra-regional system of reciprocal trade privileges. The

intent of the Acts is not to promote the availability of the

most beneficial banking services for citizens of New

England states, but rather to insulate local financial in-

stitutions, while disparately treating out-of-state bank-

ing institutions.

The Massachusetts, Connecticut and Rhode Island

Acts’ interference with interstate commerce injures not

only banking institutions outside the protected geo-

graphic area, but also, as stated above, shareholders of

bank holding companies in the protected geographic

area. Like a rock dropped in a great pond, the interfer-

ence has effects which ripple out from the scene of the

splash itself, and touch and change everything and ev-

eryone caught up in the flow of commerce. No attention

was given by the New England legislatures to the inter-

ests of shareholders in maximizing the value of their in-

vestment as opposed to the interests of incumbent man-

agements in perpetuating their tenure.

The Acts in question are distinguishable from those

statutes enacted in other states which permit restricted

or conditional entry of out-of-state bank holding compa-

nies based on conditions, such as limitations on activi-

ties, number of offices and home office locations.? Some

legitimate state purpose is evident from those statutes,

i.e., gaining employment for local residents and tax rev-

enues without seriously affecting competing local bank-

ing institutions. Delaware and the other states cited in

footnote 5, supra, opened up their borders to credit card

operations from every state of the Union, subject to con-

ditions requiring, for instance, the maintenance of cer-

tain offices in certain locations or of a certain size. Those

conditions, though creating a burden on interstate com-

5. See, e.g., Neb. Rev. Stat. §8-903 (Supp. 1983); Del. Code

Ann. tit. 5, §803; Md. Fin. Inst. Code Ann. §5-901; S.D. Compiled

Laws Ann. §§51-16-40 to 51-16-44 (Supp. 1984).

12

merce, do not create an unacceptable burden and nei-

ther favor nor preclude a particular region’s bank hold-

ing companies from participating provided that they

meet the otherwise reasonable conditions.

Respondents relied heavily in the court below upon

the case of lowa Independent Bankers v. Board of Gov-

ernors of the Federal Reserve System, 511 F.2d 1288

(D.C. Cir.), cert. denied, 423 U.S. 875 (1975), which

upheld a statute that afforded out-of-state bank holding

companies already:controlling two or more banks in

lowa and already having demonstrated their commit-

ment to the community the right to expand and make

additional acquisitions. As the court in lowa Inde-

pendent Bankers said, it was “perfectly rational” for the

lowa legislature to decide to retroactively permit the en-

trance of an out-of-state bank holding company which

had already “proven itself to be a positive force” in the

state banking industry without at the same time opening

the state up to “wholesale entry into the lowa market” by

out-of-state bank holding companies. Id., 511 F.2d at

1294. That case is clearly distinguishable from the in-

stant one where there exists no rational relationship be-

tween the welfare of the citizens of New England and

the creation of a New England banking region.

If, indeed, the concern of the Massachusetts, Con-

necticut, and Rhode Island legislatures, in enacting the

challenged Acts, was to protect their citizens and insure

for them a high level of banking service, those concerns

could have been addressed in a manner resulting in far

less impact on interstate commerce. For instance, the

states could require, as a condition to entry, that a cer-

tain amount or level of services be afforded to their citi-

zens. The Board has admitted that concerns over the in-

fluence of large banking entities entering the New

England market could have been less drastically ad-

dressed by statutes directed to the size of prospective

6. lowa Code Ann. §524.1805.

13

out-of-state bank holding companies (Pet. A61). The

Board itself noted that “it would appear that such stat-

utes [as distinguished from those enacted by the other

states discussed in footnote 5, supra, and accompanying

text] might be viewed as imposing substantially less of a

burden on commerce in the furtherance of legitimate

state objectives than [the Connecticut Act, and, by im-

plication, the Massachusetts Act] impose{[s].” (Pet. A70).

The Massachusetts, Connecticut, and Rhode Island

Acts are protectionist measures of the type which the

Court addressed in the analogous case of Lewis v. BT In-

vestment Managers, 447 U.S. 27, 100 S.Ct. 2009 (1980).

In Lewis, a Florida statute aimed at restricting the ability

of out-of-state bank holding companies to compete in

Florida’s financial market, was found by the Court to

“display a local favoritism or protectionism that signifi-

cantly alters its Commerce Clause status.” Id., 447 U.S.

at 42, 100 S.Ct. at 2018. This is precisely the kind of

“simple economic protectionism” for which “a virtually

per se rule of invalidity has been erected.” Philadelphia

v. New Jersey, supra, 437 U.S. at 624, 98 S.Ct. at 2535.

The Court did not feel the need to actually pronounce

the similar activity in Lewis a per se violation only be-

cause it had already determined that the discriminatory

treatment accorded out-of-state bank holding companies

could not be justified under any less stringent test under

the Commerce Clause. Amicus Curiae submits that the

instant protectionist legislation warrants a per se finding

of unconstitutionality.

B. THE DOUGLAS AMENDMENT DOES NOT

AUTHORIZE THE MASSACHUSETTS AND CON-

NECTICUT ACTS

Because these regionally restrictive interstate bank-

ing statutes impermissibly burden interstate commerce,

they can survive constitutional challenge only if there

exists some grant of authority by Congress itself for their

14

enactment. Respondents, in an attempt to establish con-

gressional authorization for the blatant violation of the

Commerce Clause presented by the New England legis-

lation, must demonstrate congressional intent that is ob-

vious and unarguable. As the Court said in South-Cen-

tral Timber Development, Inc. v. Wunnicke, U.S.

, 104 S.Ct. 2237, 2242 (1984):

|For a state regulation to be removed from the

reach of the dormant Commerce Clause, congres-

sional intent must be unmistakably clear. The re-

quirement that Congress affirmatively contemplate

otherwise invalid state legislation is mandated by

the policies underlying dormant Commerce Clause

doctrine.

See, also, Sporhase v. Nebraska ex rel. Douglas, 458 U.S.

941, 102 S.Ct. 3456 (1982); New England Power Co. v.

New Hampshire, 455 U.S. 331, 102 S.Ct. 1096 (1982).

Obvious and unmistakable congressional intent cannot

be gleaned from vague legislative history. This Court has

repeatedly warned of the dangers inherent in such un-

warranted reliance on the fragile wisps of evidence re-

garding Congress’ mind often found in legislative his-

tory. See, e.g., New England Power Co. v. New

Hampshire, supra; Piper v. Chris-Craft Industries, Inc.,

430 U.S. 1, 97 S.Ct. 926, reh. denied, 430 U.S. 976, 97

S.Ct. 1668 (1977).

In the instant case, Respondents contend that con-

gressional authority for the regionally restrictive legisla-

tion is found in the Douglas Amendment to the BHCA,

12 U.S.C. §1842(d). However, they can point to no “un-

mistakably clear” language anywhere, and certainly not

in the Douglas Amendment itself, to show an intention

by Congress to authorize such protectionist state legisla-

tion.

The Douglas Amendment does nothing more than

provide that no bank holding company may acquire a

bank in another state unless the acquisition of such a

15

bank “is specifically authorized by the statute laws of the

State in which such bank is located. . . .” It does not con-

stitute Congress’ grant of authority to the states to irra-

tionally discriminate against each other as they see fit.

The minimal legislative history available in connec-

tion with the Douglas Amendment, likewise, does not

demonstrate any obvious and unarguable congressional

intent in 1956 to sanction the kind by discriminatory and

protectionist legislation now before the Court (Pet.

A111-115). Only the wildest speculation regarding Con-

gress’ probable intentions could result in the conclusion

that Congress ever contemplated the sort of regionally

restrictive legislation embodied in the Massachusetts,

Connecticut, and Rhode Island Acts. In fact, it is clear

from the legislative history of the BHCA that it was in-

tended to operate free of discrimination (Pet. A107-110).

The Respondents seek to avoid the force of South-

Central Timber Development, supra, by emphasizing

the fact that the Massachusetts and Connecticut Acts

are within the literal terms of the Douglas Amendment,

unlike the situation in South-Central Timber where the

state sought to find authorization for its restrictive con-

duct by looking to federal policy in analogous areas

(Brief for the Board Respondent in Opposition to Petition

for Writ of Certiorari at P. 8; Brief of Intervenor-Respon-

dents in Opposition to Petition for Writ of Certiorari at P.

21). Contrary to their assertion, the Douglas Amend-

ment does not specifically authorize the Massachusetts,

Connecticut, or Rhode Island legislatures to permit in-

terstate bank acquisitions based on regional restrictions.

If the Court were to find that the Douglas Amendement

was.a carte blanche grant by Congress to the states, it

would also have to find that Congress granted authority

to Illinois, California and New York, where many money

center banks are located, to enact regionally restrictive

statutes in support of each other and to the detriment of

other states, such that they could not participate in the

16

megabank system the money center states could then

construct. Clearly, such an intention cannot be found in

the Douglas Amendment.

The Court, in Lewis, supra, recognized the very

limited grant of authority contained in the Douglas

Amendment when it said:

The only authority granted to the States [by the

Douglas Amendment] is the authority to create ex-

ceptions to this general prohibition [against inter-

state bank acquisitions], that is, to permit expansion

of banking across state lines where it would other-

wise be federally prohibited.

Id., 447 U.S. at 47, 100 S.Ct. at 2021 (emphasis by the

Court). The cases of Iowa Independent Bankers uv.

Board of Governors of the Federal Reserve System,

supra, and Conference of State Bank Supervisors v.

Conover, 715 F.2d 604, 613 (D.C. Cir. 1983), cert. de-

nied, ____ ~ US. , 104 S.Ct. 1708 (1984), discussing

Iowa Independent Bankers in dicta, relied upon below

by Respondents, do not support the proposition that the

Douglas Amendment authorizes discrimination against

out-of-state bank holding companies based upon their

geographic locations.’ The court in lowa Independent

Bankers only needed to decide and only did decide that

the Douglas Amendment did not prohibit states from

chosing an alternative to an all-or-nothing approach to

interstate bank acquisitions. It did not decide that the

Douglas Amendment, in some positive sense, authorized

alternatives which were overtly protectionist.

Likewise, Respondents cannot find support for their

interpretation of the Douglas Amendment in the exist-

ence of the state legislation permitting the restricted or

7. The Circuit Court for the District of Columbia in lowa Inde-

pendent Bankers considered the Douglas Amendment in connec-

tion with a claim under the Equal Protection Clause, which, in the

absence of a suspect classification, accomodates a more liberal

standard of review than the Commerce Clause.

17

conditional entry of out-of-state bank holding companies

discussed above in footnote 5, supra, and accompanying

text. Those conditional statutes clearly attempt to serve

valid state interests such as employment of local resi-

dents, commitment to the local community, and the

generation of tax revenue and do not grant geographic

favors to one outside state over another. They can pass

constitutional muster under an ordinary Commerce

Clause analysis without authorization by the Douglas

Amendment. The Massachusetts, Connecticut, and

Rhode Island Acts cannot, as the regional restrictions

contained therein bear no reasonable relation to accept-

able local concerns. Rather, the New England legisla-

tion serves only to create an absolute geographic barrier

to economic participation in the New England banking

industry. Thus, the existence of other conditional stat-

utes provides no support for the proposition that Con-

gress intended to authorize regionally restrictive acts by

its passage of the Douglas Amendment.

Accordingly, the regionally restrictive conditions at-

tached to the Massachusetts, Connecticut, and Rhode

Island legislatures’ grant of authority to acquire an in-

state bank must survive an analysis under the general

principles of the Commerce Clause, on its own terms

and without any help from the Douglas Amendment. As

is plainly demonstrated above, the New England Acts

fail to survive such a test.

II. The Massachusetts and Connecticut Acts Violate the

Compact Clause

The Massachusetts and Connecticut Acts, in addi-

tion to violating the Commerce Clause, constitute an im-

permissible attempt by the New England states to “enter

into [an] Agreement or Compact with another State... ”

carried out “without the Consent of Congress...” U.S.

Const. art. I, §10, cl. 3. Indeed, the history of the Acts,

and of the meetings and discussions which preceeded

their passage, establish, and the Respondent Board and

18

the Court of Appeals for the Second Circuit have found,

that the Acts represent an “agreement” or “compact” to

create a regional banking zone. See, Pet. A51; Northeast

Bancorp., Inc. v. Board of Governors of the Federal Re-

serve System, 740 F.2d 203, 209 (2d Cir. 1984), cert.

granted, ____ U.S. ____, 105 S.Ct. 776 (1985).

While not every agreement or compact lacking Con-

gress’ consent is violative of the Compact Clause, it is

well settled that those “agreements that are ‘directed to

the formation of any combination tending to the increase

of political power in the States, which may encroach

upon or interfere with the just supremacy of the United

States’” are violative of the Compact Clause United

States Steel Corp. v. Multistate Tax Commission, 434

U.S. 452, 471, 98 S.Ct. 799, 812 (1978), quoting New

Hampshire v. Maine, 426 U.S. 363, 369, 96 S.Ct. 2113,

2117 (1976), quoting Virginia v. Tennessee, 148 U.S.

503, 519, 13 S.Ct. 728, 734 (1893). The instant compact

is so directed to a formation of a combination tending to

increase the political powers of the states. It not only ig-

nores significant federal interests in banking in general

and interstate banking in particular, but also seeks to

create an intermediate banking system which amounts

to a political confederation inconsistent with notions of

federal supremacy that harken back to the Constitu-

tional Convention itself. No one has had the temerity to

suggest that the Douglas Amendment constitutes the

consent of Congress to such an agreement which is oth-

erwise within the prohibition of the Compact Clause.

The blow dealt by this Compact Clause violation

falls heavily not only upon competitors like Petitioner

Citicorp, but upon the shareholders of New England

bank holding companies like Amicus Curiae as well. The

compact created by the New England legislatures, in

ways more fully detailed above, deprives shareholders

like Amicus Curiae of the full value of their shares by

limiting the attractiveness of those shares as an invest-

ment, by limiting the number of potential acquirors of

19 i

the affected companies and thereby resulting in a lower

selling price on the open market and by eroding the abil-

ity of New England bank holding companies in which

such shares may be owned to secure new capital. Fur-

thermore, from the standpoint of New England bank

shareholders like Amicus Curiae, whose potential share

values are eroded by the limitation on their marketability

caused by the instant Acts, these Acts interfere with an

additional federal interest, one clearly recognized as a

fundamental part of the securities acts, namely the free

and open marketability of shares held in public reporting

companies such as those engaged in the instant merg-

ers.

The sort of compacts or agreements which

historically have been found acceptable under the Com-

pact Clause are quite different from the instant compact.

Those other compacts constituted laudable attempts by

states to band together for purposes such as the control

of pollution,® the fair allocation of water rights, the

management of a regional transportation system,'° the

construction and maintenance of bridges,'! the promo-

tion of uniformity and compatibility in state tax systems

and the proper determination of state and local tax liabil-

ity among multistate taxpayers,'* and so on. Economic

balkanization of the type described with fear by the

Court in Hughes v. Oklahoma, supra, 441 U.S. at 325-

26, 99 S.Ct. at 1737, and planned here by the New Eng-

land states, is not a fit purpose for any compact or agree-

ment.

While the law has entertained, throughout this na-

tion’s history, arguments in favor of “state’s rights,” it

8. State ex rel. Dyer v. Sims, 341 U.S. 22, 71 S.Ct. 557 (1951).

9. Texas v. New Mexico, 462 U.S. 554, 103 S.Ct. 2558 (1983).

10. Washington Metropolitan Area Transit Authority v. One

Parcel of Land, 706 F.2d 1312 (4th Cir.), cert. denied, U.S.

, 104 S.Ct. 238 (1983).

11. Delaware River Joint Toll Bridge Comm. v. Colburn, 310

U.S. 419, 60 S.Ct. 1039 (1940).

12. United States Steel Corp. v. Multistate Tax Comm., supra.

20

has never recognized the notion of regional rights accru-

ing to groups of states. To allow the multi-state arrange-

ment conceived of by the New England legislatures

would operate to the detriment not only of the exclude.

states but to the federal government as well. Such an ar-

rangement interferes with interstate commerce, under-

mines national economic goals, and constitutes an en-

croachment hostile to clearly recognized federal

interests in interstate banking and in the free flow of in-

terstate commerce itself. As such, the New England

Compact stands in violation of the Compact Clause.

Even the Respondent Board recognized the highly

complex nature of the whole issue of interstate banking

and the potential danger that could result from dividing

the nation into discrete banking regions (Pet. A47). As

the Board said: “The Board believes that the public poli-

cy issues that are raised by the regional approach are in-

herently national and would be best resolved by Con-

gressional action.” (Pet. A47-48). The proper course of

action for the New England legislatures is a time-hon-

ored one: let the New England states form a compact

and seek the approval of Congress. If there are legiti-

mate regional interests to be served in restricting out-of-

state bank acquisitions to specific regions, and a way of

doing so without any challenge to federal supremacy,

then let Congress be the judge and describe the param-

eters within which such a system might operate. In the

absence of congressional consent, the instant Acts con-

stitute an encroachment upon important federal inter-

ests that are plainly violative of the Compact Clause.

CONCLUSION

For the reasons argued more fully above, Amicus

Curiae urges the Court to overturn the decision of the

Court of Appeals for the Second Circuit and to find the

Massachusetts and Connecticut Acts to be in violation of

21

the Commerce and Compact Clauses of the United

States Constitution.

Respectfully submitted,

Path ony.

William A. Harvey

Counsel of Record for Amicus a.

The David F. Bolger Revocable Trust

1401 Walnut Street

Philadelphia, PA 19102

(215) 568-6060

Of Counsel:

Edward S. Ellers

Rona J. Rosen

William R. Thompson

Fellheimer, Eichen & Goodman

1401 Walnut Street

Philadelphia, PA 19102

Counsel for Amicus Curiae,

The David F. Bolger Revocable Trust

22

CERTIFICATION OF SERVICE

!. William A. Harvey, counsel of record for the

Amicus Curiae herein, hereby certify that all parties re-

quired to be served have been served in the following

manner: that on the 21st day of February, 1985, I

caused to be served three (3) copies of the attached Brief

Amicus Curiae and the accompanying Motion for Leave

to File Amicus Brief by first class mail, postage pre-paid,

to the following:

Stuart C. Stock, Esquire

Covington & Burling

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, DC 20044

Ira M. Millstein, Esquire

Weil, Gotshal & Manges

767 Fifth Avenue

New York, NY 10153

George D. Reycraft, Esquire

Cadwalder, Wickersham & Taft

One Wall Street

New York, NY 10005

Wilmot T. Pope, Esquire

Choate, Hall and Stewart

60 State Street

Boston, MA 02109

Jamie W. Katz, Esquire

Assistant Attorney General

of the Commonwealth of Massachusetts

Dept. of the Attorney General

John W. McCormack

State Office Building

One Ashburton Plaza

Boston, MA 08108

23

Bertram M. Kantor, Esquire

Wachtell, Lipton, Rosen & Katz

299 Park Avenue

New York, NY 10171

Douglas M. Kraus, Esquire

Skadden, Arps, Slate, Meagher & Flom

919 Third Avenue

New York, NY 10022

Honorable Rex E. Lee

Solicitor General

Department of Justice

Room 5143

Washington, DC 20530

Joseph I. Lieberman, Esquire

Attorney General

State of Connecticut

Office of the Attorney General

30 Trinity Street

P.O. Box 120

Hartford, CT 06101

Attn: John G. Haines, Esquire

Assistant Attorney General

James E. Scott, Esquire

Staff Attorney

Board of Governors of the

Federal Reserve System

20th Street and Constitution Ave., N.W.

Washington, D.C. 20551

fille A fnay

William A. Harvey, Esquire