Tuesday, February 05, 2013

Jepsen Sues Standard & Poor’s


Attorney General Leads Multistate Coalition

Challenging Standard & Poor’s Ratings

Structured Finance Securities Backed by Subprime Mortgages Contributed to Financial Crisis

For immediate release TUESDAY FEB. 5, 2013

WASHINGTON -- Attorney General George Jepsen announced today that the U.S. Department of Justice, 16 states and the District of Columbia have filed lawsuits against Standard & Poor’s Financial Services LLC (S&P), for alleged misconduct by the credit rating agency involving structured finance securities, which were at the heart of the nation’s financial crisis.

Attorney General Jepsen joined U.S. Attorney General Eric Holder at the Department of Justice for the announcement, with attorneys general from several of the participating states. Connecticut was the first state to sue S&P and its parent, The McGraw-Hill Companies, Inc., on these allegations in March, 2010, and is leading the multistate coalition.

The federal and state complaints allege that despite S&P’s repeated statements emphasizing its independence and objectivity, the credit rating agency allowed its analysis to be influenced by its desire to earn lucrative fees from its investment bank clients, and knowingly assigned inflated credit ratings to toxic assets packaged and sold by the Wall Street investment banks. This alleged misconduct began as early as 2001, became particularly acute between 2004 and 2007, and continued as recently as 2011.

Structured finance securities backed by subprime mortgages were at the center of the 2008 financial crisis. These financial products, including residential mortgage-backed securities (RMBS) and collateral debt obligations (CDOs), derive their value from the monthly payments consumers make on their mortgages.

“We believe that S&P’s analytical models for rating structured finance securities were directly influenced by the demands of S&P’s powerful investment banking clients. Contrary to what S&P was publicly representing, S&P served its own financial interests and those of the investment banks. Countless investors and market participants, including state regulators, were misled by S&P’s promise that its analysis was independent and objective. S&P violated the trust that it purposefully cultivated with the marketplace leading to disastrous results,” Attorney General Jepsen said.

The state lawsuits seek court orders to stop S&P from making misrepresentations to the public; changes in the way the company does business; civil penalties and disgorgement of ill-gotten profits, which may total hundreds of millions of dollars.

Connecticut’s lawsuit, brought under the Connecticut Unfair Trade Practices Act, is pending in Hartford Superior Court. The States of Mississippi and Illinois filed lawsuits against S&P in 2011 and 2012, respectively, based on Connecticut’s theory of the case.

Filing lawsuits today are: Arizona, Arkansas, California, Colorado, Delaware, the District of Columbia, Idaho, Iowa, North Carolina, Maine, Missouri, Pennsylvania, Tennessee, and Washington.

Connecticut also assisted the initial stages of the Department of Justice’s investigation because of its earlier investigation of S&P. “Today’s announcement is the result of unprecedented cooperation between state attorneys general and the Department of Justice. Combining the resources and authority of our state and federal offices increases the likelihood of success in complex financial cases, and winning real protections for consumers,” Jepsen said.

The complaints allege that investors and other market participants, such as state regulators, relied on S&P’s promises of independence and objectivity. Instead, S&P acted to benefit its own financial interests by adjusting its analytical models for rating residential mortgage-backed securities and collateral debt obligations to ensure it assigned as many AAA ratings as possible. Assessing actual credit risk was of secondary importance to revenue goals and winning new business, the complaints allege.

Further, the complaints allege that S&P’s profit motive affected its monitoring, or surveillance, on previously rated RMBS and CDOs. In order to continue earning lucrative fees, the complaints allege, S&P delayed taking rating actions on impaired RMBS and continued rating new CDOs even after it determined that the security’s underlying collateral was impaired.

The congressionally appointed bipartisan Financial Crisis Inquiry Commission concluded in its final report that the financial crisis “could not have happened” without ratings agencies such as S&P.

S&P and its chief competitor, Moody’s Investors Service, Inc. (Moody’s), dominate the market for rating structured finance securities and are responsible for rating virtually all structured finance securities issued into the global capital markets. Connecticut has brought a similar lawsuit against Moody’s, which is pending in state court.

Staff from the OAG’s Finance and Antitrust and Government Program Fraud departments are working with the Attorney General on this case, including Assistant Attorneys General Matthew Budzik, Finance department head; Michael Cole, Antitrust and Government Program Fraud department head; George O’Connell and Lorrie Adeyemi; Legal Fellow Ryan Ponte, and Paralegal Holly MacDonald. Former Assistant Attorney General Laura Martella also assisted.


Pauldz said...

The Feds created this whole mess when the SEC designationed Nationally Recognized Statistical Rating Organizations (NRSRO). This duopoly was supposed to do the heavy lifting of analyzing the credit worthiness of securities, so individual financial firms wouldn't have to do it themselves. Then they set rules requiring money market funds, etc could only invest in highly rated securities, as determined by the NRSRO's. The NRSRO's have an inherent conflict of interest in that they are paid by the financial firms to rate the securities they created.

Now the Feds and vs states are suing the duopoly they created because they did a bad job. Doesn't anyone do their own due diligence anymore?

And everyone wonders how we got into this mess?

peter brush said...

Who knows? There may be some merit to the case, or there may be mere malice in it. But, in general, it misses the point.
Our deliberate failure to come to terms with the financial crash of 2008, to accept that it had to do primarily with liberal public policy distortion of the mortgage/real estate markets through its quasi-state agencies, Freddie and Fannie, is an important example of a more general willing blindness to history. We actually paid this "Financial Crisis Inquiry Committee" to come up with a report that would not implicate the doings of FHA and bank regulators in enforcement of the Community Reinvestment Act, nor implicate pols like Chris Dodd, who pulled govt. levers of power to facilitate "affordable housing." The prolific gross misjudgments our State and Fed guys are presently performing are frightening, but the ideological blindness of so many of our fellow citizens is also. Peter Wallison provides the best, clearest account of the matter that I've seen.
Like Congress and the Obama administration, the Commission's majority erred in assuming that it knew the causes of the financial crisis. Instead of pursuing a thorough study, the Commission's majority used its extensive statutory investigative authority to seek only the facts that supported its initial assumptions--that the crisis was caused by "deregulation" or lax regulation, greed and recklessness on Wall Street, predatory lending in the mortgage market, unregulated derivatives, and a financial system addicted to excessive risk taking. The Commission did not seriously investigate any other cause and did not effectively connect the factors it investigated to the financial crisis. The majority's report covers in detail many elements of the economy before the financial crisis that the authors did not like, but generally fails to show how practices that had gone on for many years suddenly caused a worldwide financial crisis. In the end, the majority's report turned out to be a just-so story about the financial crisis, rather than a report on what caused the financial crisis.
Peter J. Wallison is the Arthur F. Burns Fellow in Financial Policy Studies at AE