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Thursday, January 26, 2012

Illinois Attorney General Sues S&P – Initial Thoughts

Credit risk ratings are becoming a risky business.

Yesterday’s filing of the complaint against S&P (MHP) centers, in essence, on the allegation of false advertising. Stepping in to this issue for a moment, one of the key defenses offered by the raters is that their ratings are protected under the First Amendment rights to express an opinion (their “speech”). But as law professor Eugene Volokh opines in his letter to the House Committee (May 2009) it is within the framework of commercial advertising that “speech aimed at proposing a commercial transaction – is much less constitutionally protected than other kinds of speech.”

In this case, the AG is not really focusing wholly on whether the ratings were wrong, as much as it’s saying that S&P advertised that it was following a certain code in ensuring the appropriate levels of independence and integrity were being brought to the ratings process.

A former SEC enforcement official, Pat Huddleston, once explained that "[when] I say the [financial] industry is dirty, I don't mean to imply everyone in the industry is dirty," … "[only] that the industry typically promises something it has no intention of delivering, which is a client-first way of operating." This is essentially what the complaint argues: that S&P “misrepresented its objectivity” while offering a service that was “materially different from what it purported to provide to the marketplace.”

This goes back, really, to the key reform measure Mark proposed before the Senate in 2009 – that rating agencies would do well to separate themselves from commercial interests, by building a formidable barrier around the ratings process.


First, put a “fire wall” around ratings analysis. The agencies have already separated their rating and non-rating businesses. This is fine but not enough. The agencies must also separate the rating business from rating analysis. Investors need to believe that rating analysis generates a pure opinion about credit quality, not one even potentially influenced by business goals (like building market share). Even if business goals have never corrupted a single rating, the potential for corruption demands a complete separation of rating analysis from bottom-line analysis. Investors should see that rating analysis is virtually barricaded into an “ivory tower,” and kept safe from interference by any agenda other than getting the answer right. The best reform proposal must exclude business managers from involvement in any aspect of rating analysis and, critically also, from any role in decisions about analyst pay, performance and promotions.
Two other elements jump out immediately from the complaint:

First, the complaint specifically argues that the rating agency “misrepresented the factors it considered when evaluating structured finance securities.” Next, the complaint tries to tie S&P’s actions to its publicly-advertised code of conduct, arguing that its actions were inconsistent with the advertised code.

In respect of actions being inconsistent with the code, certain of these arguments are common-place, such as the contention that the rating agencies did not allocate adequate personnel, in opposition to what’s advertised in the code. This of course becomes a contentious issue – you can see S&P coming back with copious evidence of situations in which they did “allocate adequate personnel and financial resources.” But the complaint hones in on the factors considered in producing a rating, and it focuses on two parts of the code:



Section 2.1 of S&P’s Code states: “[S&P] shall not forbear or refrain from taking a Rating Action, if appropriate, based on the potential effect (economic, political, or otherwise) of the Rating Action on [S&P], an issuer, an investor, or other market participant.”

and…

Section 2.1 of S&P’s Code states: “The determination of a rating by a rating committee shall be based only on factors known to the rating committee that are believed by it to be relevant to the credit analysis.”
This brings back to mind, disturbingly, a recent New York Times article (Ratings Firms Misread Signs of Greek Woes) which focuses on the deliberations within Moody’s (MCO) and their concerns about the deeper repercussions of downgrading Greece – rather than the specifics of credit analysis:


“The timing and size of subsequent downgrades depended on which position would dominate in rating committees — those that thought the situation had gotten out of control, and that sharp downgrades were necessary, versus those that thought that not helping Greece or assisting it in a way that would damage confidence would be suicidal for a financially interconnected area such as the euro zone,” Mr. Cailleteau wrote in an e-mail.”

The question then, is whether rating committees were focused on credit analysis, or whether other concerns were at play, aside even from typical business interests. The concerns for rating agencies, from a legal perspective, can become quite real when the debate centers not on ratings accuracy, but on whether the rating accurately reflected their then-current publicly available methodology. There may be substantial risks, therefore, in delaying a downgrade of a systemically important sovereignty or institution (such as a too-big-to-fail bank or a key insurance company) if such downgrade is appropriate per the financial condition of the company or sovereignty, or in providing favorable treatment to certain companies or sovereignties based on the relative level of interconnectedness.

The allegations of misrepresenting factors considered in their analysis opens another can of worms for rating agencies, as they’ll subsequently be increasingly focused on disclosing the sources of the information relied upon. There’s substantial concern, to the extent they’re relying on the issuing entity (in cases in which the issuing entity is itself the paying customer), that such reliance becomes a disclosure issue to the extent the investor may otherwise have assumed the rating agency was independently verifying such information. This was a frequent problem in the world of structured finance CDOs such as those described in the AG’s complaint.

Last, but not least, the complaint focuses on the effectiveness of ratings surveillance. This is a topic of importance to us, as we feel that proper surveillance, alone, may have substantially diminished the magnitude of the crisis. At the very least, certain securitizations that ultimately failed may not have been executed had underlying ratings been appropriately monitored, and several resecuritizations may have become impossible, limiting the the proliferation of so-called toxic assets. See for example: Barriers to Adequate Ratings Surveillance

That’s all for now. There’s a lot more to this complaint, so we suggest you check it out here.

2 comments:

Ginger Yellow said...

The timing and size of subsequent downgrades depended on which position would dominate in rating committees — those that thought the situation had gotten out of control, and that sharp downgrades were necessary, versus those that thought that not helping Greece or assisting it in a way that would damage confidence would be suicidal for a financially interconnected area such as the euro zone,” Mr. Cailleteau wrote in an e-mail.”

I don't see the relevance of this quote. It's pretty clearly describing a disagreement about Greece's credit risk - whether Greece was beyond saving or if the rest of the eurozone would have to provide the necessary support to avoid a default. This quote seems much more relevant:
Some of the analysts on the call argued that Greece needed to be downgraded swiftly. But others worried about worsening Greece’s position, or did not want to make a call that they might later have to reverse. Ultimately, the analysts decided to wait, but agreed to a three-month review with a downgrade in mind.

PF2 said...

Thanks Ginger. We thought we captured that dynamic well in the quote we chose, but yours works well too, if not better. Appreciate the tip. - PF2