Jenner & Block

"Rating Agencies: A New Front in Subprime Litigation," Securities Law 360; Financial Services Law 360

In this article, Partner Larry P. Ellsworth and Associate Ishan K. Bhabha address whether credit rating agencies such as Moody’s, Standard and Poor’s and Fitch can be exposed to liability as a result of the meltdown of the subprime credit markets. The article points out that these agencies, which gave triple A ratings to residential mortgage backed securities, are now being accused of giving inflated evaluations that did not accurately represent the risks associated with the securities. The article discusses the prospects for litigation against the rating agencies and some possible defenses that they could raise, such as the "member of the press" doctrine, which would grant the agencies a First Amendment defense against liability for statements that were not made with actual malice. The article concludes that the extent to which the credit rating agencies should be held liable in the subprime crisis will generate contentious and interesting litigation in the years to come.