When it comes to the U.S. credit crisis, we've all heard the numbers. The stock market decline wiped out $7 trillion in shareholder wealth. It forced the federal government to commit to $11.6 trillion in bailout programs and stimulus spending. And it's led to the longest U.S. downturn since the Great Depression.
Everyone also knows that some of the key culprits behind this financial mess were the credit-rating firms like Standard & Poor's and Moody's Investors Service, which assigned top-tier "AAA" ratings to investments that were actually backed by subprime mortgages and other toxic debt.
Whether it was collusion or incompetence almost didn't matter: The firms claimed that the credit ratings they issued were constitutionally protected free speech. With this First Amendment shield, S&P, Moody's and others said they were protected from lawsuits or other liabilities.
But that's about to change.
A federal court judge in New York last week stripped the ratings firms of that defense, a decision that could expose the companies to billions of dollars worth of liabilities from investors who were burned by the faulty ratings.
Let's legal case involved three specific firms – two firms that rated collateralized debt securities, and an investment bank that sold the debt. Those three companies were:
- Standard & Poor's, which is owned by The McGraw-Hill Cos. Inc. (NYSE: MHP).
- The Moody's Investor's Service unit of Moody's Corp. (NYSE: MCO), which is 19% owned by Warren Buffett's Berkshire Hathaway Inc. (NYSE: BRK.A, BRK.B).
- And Morgan Stanley (NYSE: MS).
This particular case had been brought against Moody's and S&P by Abu Dhabi Commercial Bank PJSC and Washington State's King County. The case involved losses suffered from an investment in a structured investment vehicle (SIV) called Cheyne Finance. Although the debt securities Cheyne issued were backed in part by subprime mortgages, they received ratings as high as "AAA."
In return for the high rating, the companies received higher-than-normal fees.
The $5.86 billion Cheyne Finance SIV went bankrupt in August 2007. The plaintiffs claimed fraud. The suit is seeking class-action status on behalf of investors who were burned when Cheyne was forced to dump securities it had issued between October 2004 and October 2007.
Since lawyers for the plaintiffs say the ruling could be applied to any deal involving SIVs, it could have a substantive impact. Before the financial crisis caused the value of these asset pools to plummet, experts estimate there were $350 billion to $400 billion worth of SIVs in existence.
"There certainly will be other cases filed – that's the future impact of this decision," San Diego attorney Patrick Daniels told The Wall Street Journal.
Moody's and S&P had sought a dismissal, citing their First Amendment protections. But U.S. District Court Judge Shira Scheindlin ruled on Sept. 2 that securities ratings that were distributed to a small group of investors don't warrant the same First Amendment protections that are afforded to the widely circulated ratings of corporate bonds.
Judge Scheindlin acknowledged that ratings constituting "matters of public concern" are typically protected from liability. That's especially true when the ratings are distributed to the general public. But it wasn't the case here.
"Where a ratings agency has disseminated their ratings to a select group of investors rather than to the public at large, the ratings agency is not afforded the same protection," Judge Scheindlin ruled.
The ruling will likely be appealed. And it could end up in front of the U.S. Supreme Court.
The case spotlights the biggest problem with the business of rating securities: The ratings firms are paid by the issuers to rate them.
When you get right down to it, ratings firms are in business not to rate but to make money for themselves by rating issuers and their securities. The surprise isn't that the obvious lack of objectivity fostered abuses in the credit-rating process – it's that the problem took so long to come to a head. The complexity of mortgage-backed securities (MBS), collateralized mortgage obligations (CMOs) and collateralized debt obligations (CDOs) only exacerbated the investor risk.
The decision received widespread media attention. But it's only half the story.
And the media missed the other half.
In an ironic twist that transforms the credit-rating firms into legal sacrificial lambs, the U.S. Securities and Exchange Commission (SEC) has in recent weeks acknowledged its own failure to protect the public from the same ratings firms that the federal agency mandates that investors rely upon.
This admission – combined with the legal assault on the constitutional protections ratings firms are used to hiding behind – could threaten the ratings firms' very existence. It not only will further fuel investor ire, it could also provide litigants with additional needed legal ammunition. The ratings involve tens of billions – if not hundreds of billions – of dollars of failed securities.
A series of internal reviews by the SEC – one reaching back to last year – has highlighted some of the abuses.
About a year ago – in July 2008, to be exact – the SEC concluded a 10-month examination of the ratings industry that uncovered "poor disclosure practices and procedures guiding the analysis of mortgage-related debt and insufficient attention paid to managing conflicts of interest."
According to the report, there was an obvious degree of knowledge and complicity in playing the ratings game.
E-mail exchanges between analysts at "unnamed" ratings firms back this up. In one, an analyst said the firm's ratings model didn't capture "half" of the deal's risk, but said that the security "could be structured by cows and we would rate it." In a Dec. 15, 2006 missive, a manager wrote that the ratings industry was creating "[an] even bigger monster – the CDO market."
Confided the manager: "Let's hope we are all wealthy and retired by the time this house of cards falters."
In July of this year, in testimony to Congress, SEC Chairwoman Mary Shapiro said she supported proposals to impose liability standards that would make it easier for investors to sue credit ratings firms. That's a bit ironic given that the SEC is charged with supervising the ratings firms.
According to the internal investigation conducted by the Office of Inspector General, the SEC failed to exercise its duties as the nation's watchdog of the same credit ratings firms that many large investors are forced to trust.
By law, certain investors must rely on the ratings of a handful of companies, known as "Nationally Recognized Statistical Rating Organizations," or NRSROs. In many cases, the NRSROs determine what are "eligible" or "appropriate" investments. And it's the SEC that determines who is, or who can be, an NRSRO.
For instance, most state insurance regulators say that insurance companies can only invest in assets that carry one of the top four credit ratings. And it's the NRSROs that certify those ratings.
Similarly, money-market funds can only invest in the highest NRSRO-rated securities.
Countless institutions – public and private, domestic and international – rely on rules that determine what assets are acceptable investments. And that acceptability is determined by financial due diligence and the resulting credit ratings – as determined by SEC-certified rating agencies.
It's not clear that any of this is really protecting investors, according to a Feb. 15, 2008 "Review & Outlook" piece in The Journal. Drexel University Finance Prof. Joseph Mason took a look at CDOs that were "Baa" (an investment grade rating) by Moody's. His finding: They were 10 times more likely to default than equivalently rated corporate bonds.
In that same article, an S&P spokesperson was asked if they actually examined the mortgage debt that made up the investment pools that make up a CDO.
The spokesperson's answer was not confidence-inspiring: "We are not auditors; we are not accounting firms."
News and Related Story Links:
- Money Morning Market Commentary:
Fraud and Greed of Trusted Rating Agencies Helped Spread the Credit Crisis.
- The Wall Street Journal:
Judge Limits Credit Firms' 1st-Amendment Defense.
- The Wall Street Journal:
Moody's Stays in the Eye of the Storm.
Collateralized Mortgage Obligations.
- USA Today:
Ruling: Credit-rating agencies can't use free-speech defense.
- Money Morning News:
Career Regulator Mary Schapiro – a "Strong Investor Advocate" – is Reportedly Obama's Choice for SEC Chief.
Structured Investment Vehicle.
About the Author
Shah Gilani is Chief Financial Strategist for Money Map Press and boasts a financial pedigree unlike any other. He ran his first hedge fund in 1982 from his seat on the floor of the Chicago Board Options Exchange. When options on the Standard & Poor's 100 began trading on March 11, 1983, Shah worked in "the pit" as a market maker. The work he did laid the foundation for what would later become the Volatility Index (VIX) - to this day one of the most widely used indicators worldwide. After leaving Chicago to run the futures and options division of the British banking giant Lloyd's TSB, Shah moved up to Roosevelt & Cross Inc., an old-line New York boutique firm. There he originated and ran a packaged fixed-income trading desk and established that company's "listed" and OTC trading desks. Shah founded a second hedge fund in 1999, which he ran until 2003. Shah's vast network of contacts includes the biggest players on Wall Street and in international finance. These contacts give him the real story - when others only get what the investment banks want them to see. On top of the free newsletter, as editor of The 10X Trader, Money Map Report and Straight Line Profits, Shah presents his legion of subscribers with the chance to earn ten times their money on trade after trade using a little-known strategy. Shah is a frequent guest on CNBC, Forbes, and MarketWatch, and you can catch him every week on FOX Business' "Varney & Co."