Fraud at the Rating Agencies

Since the meltdown of the economy in 2008 a narrative has formed as to how we got there. At the center of that narrative are the rating agencies -- Standard & Poor's, Fitch, Moody's Investor Service -- because without their AAA ratings of collateralized debt obligations, CDO's, it's hard to see how the house of cards that collapsed five years ago gets erected in the first place. 

Finally, as revealed in a frontpage story today by Andrew Ross Sorkin and Mary Williams Walsh, the Department of Justice is charging one of the credit-rating agencies, S&P, with fraud: 

From September 2004 through October 2007, S.&P. “knowingly and with the intent to defraud, devised, participated in, and executed a scheme to defraud investors” in certain mortgage-related securities, according to the suit filed against the agency and its parent company, McGraw-Hill Companies. S.&P. also falsely represented that its ratings “were objective, independent, uninfluenced by any conflicts of interest,” the suit said.

S.& P., first contacted by federal enforcement officials three years ago, said in a statement Monday in anticipation of the suit that it had acted in good faith in issuing the ratings.

“A D.O.J. lawsuit would be entirely without factual or legal merit,” it said, adding that its competitors had given exactly the same ratings to all the securities it believed to be in question.

Settlement talks between S.& P. and the Justice Department broke down in the last two weeks after prosecutors sought a penalty in excess of $1 billion and insisted that the company admit wrongdoing, several people with knowledge of the talks said. That amount would wipe out the profits of McGraw-Hill for an entire year. S.& P. had proposed a settlement of around $100 million, the people said.

S.& P. also sought a deal that would allow it to neither admit nor deny guilt; the government pressed for an admission of guilt to at least one count of fraud, said the people. S.& P. told prosecutors it could not admit guilt without exposing itself to liability in a multitude of civil cases. 

It was unclear whether state and federal authorities were looking at the other two major ratings agencies, Moody’s Investors Service and Fitch.

This morning's naked capitalism blog points out that the previous dismal track record of investor suits against the rating agencies doesn't apply here because the DOJ is relying on a new legal theory. As Sorkin and Walsh explain in their DealBook story:

The federal action will be the first time a credit-rating agency has been charged under a 1989 law intended to protect taxpayers from frauds involving federally insured financial institutions, which since the financial crisis has been used against a number of federally insured banks, including Wells Fargo, Bank of America and Citigroup.

The government is taking a novel approach by accusing S.& P. of defrauding a federally insured institution and therefore injuring the taxpayer.

Among others, the compliant includes the demise of Wescorp, a federally insured credit union in Los Angeles that went bankrupt after investing in mortgage securities rated by S.& P. Wescorp is included as one example of the contended fraud, and as a way to bring the case in California. The suit was filed in Federal District Court for the Central District of California.

The naked capitalism post says that if successful this prosecution could be a watershed moment:

As indicated, the reason this suit might fly is that the causes of action rely on different statues than previously invoked, and the focus is on SPs misrepresentation of its own process: that it presented it as objective and unbiased, when it had significant conflicts of interests and its employees believed it was concerned only about profit, and that it may also have failed to adhere to its own procedures.

While getting a ratings agency scalp is small potatoes compared to getting the executives at one of the many financial institutions that helped bring about the crisis, Ill take my victories where I can get them. Winning a case against a public company that is really keen not to lose (tons of private litigation would follow) would break a long losing streak in the DoJ and SEC on the finance front. Although the agencies have been craven, they apparently really were demoralized after losing their misguided suit against Bear Stearns hedge fund managers, and theyve been gun shy. That does not mean they would not have lost in a fight against the Treasury if they had wanted to go after any targets, but lets not kid ourselves: these fights never occurred. Breuer in a significant role was also a big part of the problem, but people who know something about the DoJ say the agencys learned timidity was an even bigger impediment. They really lost their mojo after the Bear Stearns fiasco. You could have imagined a less cowardly DoJ filing suits against safe and obvious targets like WaMu.

Lets hope that the DoJs prosecutorial efforts live up to the caliber of their filing. Too often the Feds have proven to be great draftsmen but lousy prosecutors. Well see if they can up their game.

It would be amazing -- almost too grand a thought to think -- if Obama's second term turned out to be the opposite of the usual fecklessness and avariciousness (just think Bill Clinton) that define administrations headed out to pasture.