Australia’s Federal Court issues landmark judgment against S&P, ABN Amro
Mon Nov 5, 2012 4:18am GMT
SYDNEY (Reuters) – Australia’s Federal court issued a landmark judgment on Monday that Standard & Poor’s misled investors by giving its highest rating to derivatives that lost almost all their value in the run-up to the 2008 global economic crisis.
The Australian case marked the first time a ratings agency had faced trial over the complex financial products widely cited as one of the factors that triggered the crisis and could set a precedent for future litigation around the world.
“This is a major blow to the ratings agencies, which for years have had the benefit of profiting from the assignment of these ratings without ever being accountable to investors for those opinions,” said lawyer Amanda Banton of Piper Alderman, who represented the local councils.
“Today’s judgment will ultimately have the effect of ensuring ratings agencies are accountable and promoting transparency in the ratings process,” Banton added.
Monday’s ruling follows a judgment in September against Lehman Brothers Australia, which found that firm breached its legal duties when it sold collateralised debt obligations, or CDOs, to a group of charities, councils and churches that collectively lost A$250 million ($259 million).
Hero of the day, CPDO edition
Felix Salmon, Reuters
Nov 5, 2012 18:38 UTC
I’d never heard of Australian federal judge Jayne Jagot before today, but she’s my new favorite jurist, thanks to her decision in a recent court case which was brought against ABN Amro and Standard & Poors.
The coverage of the decision (Quartz, FT, WSJ, Bloomberg, Reuters) concentrates, as it should, on the hugely important precedent being set here: that a ratings agency – in this case, S&P – is being found liable for losses that an investor suffered after trusting that agency.
The case at heart is a simple one: 12 local councils in Australia bought a bunch of CPDOs, and they only did so because S&P had given those instruments a triple-A rating. S&P, in turn, should never have given the CPDOs that triple-A rating. So it’s S&P’s fault that the councils lost so much money – jointly with ABN Amro, which structured the things.
How does Jagot come to the conclusion that “a reasonably competent ratings agency” would never have given the CPDOs a triple-A rating? Simple: S&P used utterly bonkers assumptions in order to come to its conclusion.
There’s really no way of reading what S&P did, here, except that it simply massaged the assumptions it was using until it managed to find something which was consistent with the triple-A rating it wanted. When spreads are at 30bp, what makes you think they’ll average 40bp over one year and then 80bp over nine years? Especially when the index as a whole has never averaged anything like 80bp? It’s simply not a reasonable assumption, and the fact that S&P made it just goes to show how the agency was acting for its paymasters – ABN Amro – and was not putting out reliable ratings at all.
You’d think that a ratings agency, of all institutions, would be alive to the risk of ratings downgrades. But, it turns out, not so much. ABN Amro, in its model , simply didn’t include what’s known as “ratings migration” – and S&P, similarly, completely ignored it.
The result, in reality, was devastating. Because companies could borrow at such low rates, they were particularly vulnerable to being taken over by private-equity firms which could load them up with cheap debt, devastating their credit ratings. And that’s exactly what happened. A whole series of investment-grade companies, like Alliance Boots, Alltel, and Boston Scientific, got levered up by their new private-equity owners, and lost their investment-grade credit ratings.
Put it all together, and you get a very shocking view of S&P. Here’s the list:
- S&P used the wrong model input for starting spread.
- S&P used the wrong model input for volatilty.
- S&P used the wrong model input for average spread.
- S&P completely ignored ratings migration.
If S&P had just got any one of these things right, the CPDO would never have gotten that triple-A rating. If it had got them all right, the CPDO would almost certainly not even have been investment grade, let alone triple-A.
S&P was not doing its job, and as a result a bunch of Australian municipalities lost a great deal of money. Jagot has found S&P liable, as she should. Good for her.
Australian Court: Standard and Poor’s Liable for Bad Ratings on Securities
By: David Dayen, Firedog Lake
Monday November 5, 2012 12:26 pm
This will get approximately no attention today, but a federal court in Australia ruled that Standard and Poor’s, the credit rating agency, lied to investors when they awarded their highest, triple-A rating to derivative securities that lost their value within two years of purchase.
Further rulings of this type in this very new area of case law would be devastating to the rating agencies. They would also be correct. Rating agencies, paid by the banks whose securities they rate, simply failed to model the potential for a collapse in value of a basket of securities, particularly mortgage backed securities during the housing bubble. This led a host of investors to trust the ratings and buy the products, only to have their values collapse. While the banks got bailed out, the investors did not; they were collateral damage in the financial crash. And when I say “investors” I also mean municipal and union pension funds.
Those who want to defend the system argue that investors should have done their own due diligence before deciding on purchasing these structured finance products. The Australian court didn’t agree. They argued that the rating agencies are culpable for their work, and that their failures amounted to fraud. Rating agencies have never been held accountable for the ratings they assign, and this ruling, if replicated, would completely upend that expectation. The first place we could see further action from investors would be in Europe. The US has seen some case law in this area, and by and large the rating agencies have gotten off scot-free, using both disclaimers in their written materials and Constitutional protections on freedom of speech, believe it or not. There are some outstanding cases, however.
But Mr. Market certainly took notice of this ruling, dropping the stock of S&P’s parent company, McGraw-Hill, over 5%. Other rating agency stocks fell as well. And that’s appropriate, because the money that Standard and Poor’s will now have to pay the local councils in Australia outstrips the money the councils lost on the securities. There’s massive exposure here.