Last week, the US Department of Justice charged Standard and Poors of intentional fraud - of making 'limited, adjusted and delayed updates' to its rating criteria resulting in the agency giving favourable ratings to several structured finance papers , leading to massive losses to investors.
S&P and their ilk do not give recommendations - they just give 'opinions', and hence they have always claimed constitutional protection for freedom of speech....and so, they cannot be just pulled up for. Some argue that what happened was essentially a mistake on the part of the investor.... caveat emptor ( buyer beware !) -nothing prevented the investor from doing his own due deligence.
While this does appear to be a strong point for the agencies, there is a catch. Regulators across most countries, insist that investments made by banks and financial institutions have to be rated and they also specify acceptable rating agencies and S&P , Moodys and Fitch surely figure in most of these lists. (While rating agencies do a lot of things these days, I am not sure if the agencies would be in the pure ratings business if regulators do not insist on investments being rated). This means, they 'enjoy' a quasi-official status. Investors hence rely on their ratings to invest. There hence is a fiduciary responsibility that agencies owe - to protect investors by giving a true and objective assessment. So, while one should not take away the responsiblity of an investor to look with care before he invests, one should not also take away the responsibility of the agency to be true - particularly as the investor is directed to take the view into consideration, by regulators. And the standard of work by the agencies in discharging this responsibility has been pretty poor.
The other way of looking at this is that a seller is responsible for ensuring that his product performs to standards that it claims to have. Agencies, certify the level of standard and get paid for it. So, when the product fails to meet the standards, the seller has to be pulled up - and with him the Agency which abetted in the sale.
Any which way one sees this, the agencies need to be made accountable. Ever since the financial crisis, there have been several attempts to pull up the agencies for their flawed ratings and to regulate them. And frankly, I am happy that S&P is being hauled to courts - and irrespective of the final judgment ( or settlement), there are two possible gains :
1) Investors will not rely on these ratings beyond a point (infact, investors of sovereign debt market have begun to repudiate rating actions.
2) Agencies will hopefully become more responsible in their job.
The move by the US Gov is however surprising - why is there a case against only S&P ?... Moodys and Fitch too played their part in the crisis. Is it because the US Gov is still in a bad mood after the S&P downgrade in August 2011 ?