Legal Liability of U.S. Credit Rating Agencies under Section 11 of the Securities Act: The Long and Winding Road toward Accountability

This paper argues that credit ratings have contributed to the current financial crisis. In United States, the previous “reputational model” as well as the current proposals aimed at reducing reliance on rating agencies, enhancing competition and increasing transparency is not sufficient to improve the integrity of rating agencies. This paper suggests that imposing stricter liability on rating agencies is necessary. The proposal to eliminate the exemption of NRSROs under Section 11 of the Securities Act is necessary but not sufficient for holding rating agencies accountable. The first amendment defense always shields rating agencies from legal liability, while the absence of a common standard make it hard to impose liability for negligent ratings. Finally, this paper suggests that the courts should not award the rating agencies First Amendment protection and consider the distinguished characteristics of rating agencies, when examining the professional liability of the agencies.MAS