Is US Suing S&P Payback for Ratings Downgrade?

♠ Posted by Emmanuel in , at 9/06/2013 09:30:00 AM
In run-of-the-mill stories, there are heroes and villains: I've been in this town so long that back in the city I've been taken for lost and gone and unknown for a long, long time. Today, however, we instead have two major baddies duking it out: the US government and credit rating agency Standard & Poors. It's the political economy equivalent of Aliens vs. Predator. Apparently, the US government was, like many, suckered into buying securities of dubious creditworthiness by inflated ratings slapped on them by S&P and its peers. So many years after the global financial crisis hit its peak, the United States sued S&P for misrating these securities earlier in 2013.
The plot is not that straightforward, though. Recall that S&P is the only major credit rating agency to have downgraded US debt from Triple-A status exactly two years ago. I argue that action was too little, too late anyway in that America's debt problems are only going to get worse due to fiscal mismanagement unmatched by any other country in absolute terms: anyone else owe $16.7 trillion?

It appears that S&P is now trying to absolve its past actions by accusing the US government of using the suit as revenge for its ratings downgrade:
Standard & Poor's Ratings Services escalated its legal battle with the U.S. Justice Department, accusing it of filing its $5 billion lawsuit against S&P in "retaliation" for the company's downgrade of America's debt in 2011. S&P's defense, made in a court filing on Tuesday, shows that the world's largest credit-rating company is digging in as it fights the Justice Department's Feb. 4 lawsuit, which accused S&P of misrepresenting its rating process in the years before the financial crisis [...]

The Justice Department "commenced this action in retaliation for [S&P's] exercise of their free speech rights with respect to the creditworthiness of the United States of America," lawyers for S&P wrote in court documents filed Tuesday in the U.S. District Court for the Central District of California. A Justice Department spokeswoman said in a statement that "the allegation is preposterous." S&P referred questions back to its Tuesday response to the U.S. lawsuit [...]
While this tactic is not unusual for those sued by the Feds, proving it is ludicrously difficult:
It isn't unusual for companies sued by the federal government to claim political payback, said some lawyers who have been following the lawsuit. S&P could eventually decide to drop the payback argument, they said, depending on what documents are unearthed during the discovery process or if the judge overseeing the lawsuit indicates that line of defense doesn't hold water [...]

[L]awyers also said that proving retaliation will be difficult for S&P. It will be an uphill battle to prove that there was direct communication between different government agencies [i.e., Treasury and Justice] and to indicate any such goal, as of the alleged retaliation by the government, the lawyers said. 
As with most half-truths, both villains are partly correct. I, of course, would state the facts of the matter thusly which casts both in a negative light: 
  • The United States deserves an even bigger downgrade than what S&P made given the true extent of its future liabilities. 
  • S&P provided deliberately misleading ratings since it was financially beneficial for it to do so.
In the end, that's all there is to it. The S&P conspiracy theory is too elaborate and veers too far away from coherence to be admissible. For this round, the US government villains at least have a logical case against the ratings villains. Besides, if the US government really wanted to hurt S&P, it could easily put it out of business