Bond raters hiding behind First Amendment

| October 28, 2009 | 13 Replies

This is insanity: The bond raters, those three big Wall Street companies that rated crappy mortgages to be great investments, thereby plunging the country into economic chaos, are hiding behind the First Amendment. They are claiming that they can’t be sued for the financial equivalent of calling a mouse an elephant, because their work product is just an “opinion.” We charge millions of dollars for giving you a rating, and you can’t hold us accountable because it’s an “opinion.”

I’ll tell you this: I work as a lawyer. If a screw up someone’s case because I give him bad advice (in return for charging her a fee), she could (rightfully) sue me for malpractice. If I raised the defense that I can’t be sued for terrible advice because it was merely “an opinion,” I’d be laughed out of court with an adverse judgment tattooed onto my forehead. That the courts aren’t letting these ratings firms get hammered makes you wonder whether the unspoken defense is “too big to fail.” If they didn’t have this ridiculous “First Amendment” defense, the smug and irresponsible raters would be ripped apart by millions of justifiably irate plaintiffs.

And, of course, Congress is in no hurry to beat back the ratings firms’ lobbyists and hold these jokers accountable for all of the 401K’s they’ve trashed.

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Category: Economy, Fraud, Law

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

Comments (13)

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  1. The fear is (probably) that if they are held accountable, they'll vanish, making one less place through which other peoples' money flows for no good reason.

    Of course, letting them claim that their ratings are "only an opinion" isn't likely to get them any new customers and may lead ultimately to their demise. Opinion? What am I paying you for? I can have an opinion all by myself and keep my money to boot!

  2. Erich Vieth says:

    For years, the credit raters have stated that they are open to stronger supervision from Congress and the SEC. But behind the scenes they repeatedly have quashed or watered down potential government rules by arguing that, much like a newspaper editorial, ratings are protected by the constitutional right to free speech, according to a Huffington Post Investigative Fund review of congressional testimony, SEC documents and lobbying reports.

    http://www.huffingtonpost.com/2009/11/11/how-cred

  3. Erich Vieth says:

    Barney Frank is trying to hold the bond raters responsible, but once again nothing obviously necessary is easy in Congress.

    http://www.huffingtonpost.com/2009/12/18/barney-f

  4. Erich Vieth says:

    Here is a most unsurprising revelation, given the fact that ratings firms put high ratings on bonds that were composed of high risk subprime loans, many of them closed with the help of fraud:

    "In the lead up to the financial meltdown, Wall Street firms routinely exerted influence on the nation’s largest credit rating companies— which judge the quality and safety of bonds—and the companies often surrendered to the pressure, according to the results of a Senate investigation."

    http://www.huffingtonpost.com/2010/04/22/yielding

  5. Erich Vieth says:

    "A bipartisan panel investigating the roots of the financial crisis said Wednesday it has subpoenaed credit rating agency Moody's Corp. The Financial Crisis Inquiry Commission said Moody's failed to provide documents it requested. It is the commission's first subpoena."

    http://www.google.com/hostednews/ap/article/ALeqM

  6. Erich Vieth says:

    "Moody's "couldn't say no in any case," he said. This created the "worst incentives" because megabanks and broker-dealers knew that Moody's would always rate their offerings, regardless of how crappy they may have been. "It went downhill from there," Kolchinsky said."

    http://www.huffingtonpost.com/2010/06/02/fcic-tes

  7. Erich Vieth says:

    "The major credit rating agencies repeatedly sold out to Wall Street banks, so addicted to short-term profits that they repeatedly sacrificed the accuracy of their reports to maintain a competitive edge, a two-year government investigation has concluded.

    Rather than assess risk accurately, two major rating agencies sold their top seals of approval to their investment bank clients, blessing products that the agencies themselves knew to be undeserving, the Senate Permanent Subcommittee on Investigations concluded in a report released Wednesday."

    http://www.huffingtonpost.com/2011/04/14/rating-a

  8. Tim Hogan says:

    If these are just "opinions" and if the rating agencies know they are not telling the truth because they are being paid to lie then, what recourse does anyone have? "Second Amendment" remedies?

    I will not believe in any alleged "end" of the 2008 financial crisis until there is a 1000 man perpwalk of Wall Streeters, bankers and bond rating agency people! Let them spend their profits on legal fees! Let them go to jail, directly to jail and to not collect $200 million!

  9. Erich Vieth says:

    “A federal judge has said credit ratings are not always protected opinion under the First Amendment, a defeat for credit rating agencies in a lawsuit brought by investors who lost money on mortgage-backed securities.
    The November 12 decision was a little-noticed setback for McGraw-Hill Cos’ Standard & Poor’s, Moody’s Corp’s Moody’s Investors Service and Fimalac SA’s Fitch Ratings, which have long invoked First Amendment free speech protection to defend against lawsuits over their ratings.”

    http://www.huffingtonpost.com/2011/11/26/federal-judge-credit-rati_n_1114034.html

  10. Erich Vieth says:

    It’s about time:

    Federal and state prosecutors intend to bring civil charges against Standard & Poor’s for wrongdoing in its rating of mortgage bonds prior to the 2008 financial crisis, The Wall Street Journal said on Monday, citing people familiar with the matter. Allegations against the McGraw-Hill Cos unit will center on the model used to rate the bonds and will be made in lawsuits to be filed as soon as this week, the newspaper said, citing the people.

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