The fight to recover funds lost in the market melee last year may come down to the First Amendment. Ohio is the latest plaintiff against ratings agencies who, according to the suit filed by attorney general Richard Cordray, approved high-risk securities that led to state retirement and pension funds losing about $457 million, the New York Times reports. Moody’s Investors Service, Standard & Poor’s and Fitch argue that their ratings are opinions about the future and therefore protected as free speech.
So far the argument seems to have worked; the ratings agencies are undefeated in court. The loss of billions of dollars, and some damning e-mails from agency employees, however, has made investors more aggressive, according to the Times. The paper reports Congress discovered internal e-mails from the companies that showed employees knew they were approving bad bonds. If so, they could lose their First Amendment protection.
“If they hold themselves out to the marketplace as objective when in fact they are influenced by the fees they are receiving, then they are perpetrating a falsehood on the marketplace,” Rodney A. Smolla, dean of the Washington and Lee University School of Law, told the Times. “The First Amendment doesn’t extend to the deliberate manipulation of financial markets.”
“A recent Securities and Exchange Commission examination of our business practices found no evidence that decisions about rating methodologies or models were based on attracting market share,” Steven Weiss, a spokesman for McGraw-Hill, which owns S&P, defended the agency.