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S. HRG. 111–341 

EXAMINING PROPOSALS TO ENHANCE THE 

REGULATION OF CREDIT RATING AGENCIES 

HEARING 

BEFORE THE

COMMITTEE ON 

BANKING, HOUSING, AND URBAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON 

THE EXAMINATION OF THE PROPOSALS TO ENHANCE THE 

REGULATION OF CREDIT RATING AGENCIES 

AUGUST 5, 2009 

Printed for the use of the Committee on Banking, Housing, and Urban Affairs 

( 

Available at: http://www.access.gpo.gov/congress/senate/senate05sh.html 
COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS 

CHRISTOPHER J. DODD, Connecticut, Chairman 

TIM JOHNSON, South Dakota 

JACK REED, Rhode Island 

CHARLES E. SCHUMER, New York 

EVAN BAYH, Indiana 

ROBERT MENENDEZ, New Jersey 

DANIEL K. AKAKA, Hawaii 

SHERROD BROWN, Ohio 

JON TESTER, Montana 

HERB KOHL, Wisconsin 

MARK R. WARNER, Virginia 

JEFF MERKLEY, Oregon 

MICHAEL F. BENNET, Colorado 

RICHARD C. SHELBY, Alabama 

ROBERT F. BENNETT, Utah 

JIM BUNNING, Kentucky 

MIKE CRAPO, Idaho 

MEL MARTINEZ, Florida 

BOB CORKER, Tennessee 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

MIKE JOHANNS, Nebraska 

KAY BAILEY HUTCHISON, Texas 

EDWARD SILVERMAN, Staff Director 

WILLIAM D. DUHNKE, Republican Staff Director 

DEAN V. SHAHINIAN, Senior Counsel 

JULIE CHON, Senior Policy Adviser 

DREW COLBERT, Legislative Assistant 

BRIAN FILIPOWICH, Legislative Assistant 

MARK OESTERLE, Republican Chief Counsel 

HESTER M. PEIRCE, Republican Counsel 

CHAD DAVIS, Republican Professional Staff Member 

DAWN RATLIFF, Chief Clerk 

DEVIN HARTLEY, Hearing Clerk 

SHELVIN SIMMONS, IT Director 

JIM CROWELL, Editor 

(II)
C O N T E N T S 

WEDNESDAY, AUGUST 5, 2009 

Page 

Opening statement of Chairman Dodd .................................................................. 1 

Opening statements, comments, or prepared statements of: 

Senator Shelby .................................................................................................. 3 

Prepared statement ................................................................................... 51 

Senator Reed ..................................................................................................... 4 

Prepared statement ................................................................................... 51 

WITNESSES 

Michael S. Barr, Assistant Secretary for Financial Institutions, Department 

of the Treasury ..................................................................................................... 5 

Prepared statement .......................................................................................... 52 

Responses to written questions of: 

Senator Bennett ........................................................................................ 104 

Stephen W. Joynt, President and Chief Executive Officer, Fitch Ratings .......... 25 

Prepared statement .......................................................................................... 60 

Responses to written questions of: 

Senator Bennett ........................................................................................ 116 

James H. Gellert, President and Chief Executive Officer, Rapid Ratings 

International, Inc. ................................................................................................ 27 

Prepared statement .......................................................................................... 64 

Responses to written questions of: 

Senator Bennett ........................................................................................ 118 

John C. Coffee, Jr., Adolf A. Berle Professor of Law, Columbia University 

Law School ............................................................................................................ 29 

Prepared statement .......................................................................................... 85 

Responses to written questions of: 

Senator Bennett ........................................................................................ 119 

Lawrence J. White, Leonard E. Imperatore Professor of Economics, New 

York University .................................................................................................... 31 

Prepared statement .......................................................................................... 90 

Responses to written questions of: 

Senator Bennett ........................................................................................ 120 

Mark Froeba, J.D., Principal, PF2 Securities Evaluations, Inc. .......................... 33 

Prepared statement .......................................................................................... 100 

Responses to written questions of: 

Senator Bennett ........................................................................................ 120 

ADDITIONAL MATERIAL SUPPLIED FOR THE RECORD

Hearings Before the Committeee on Banking, Housing, and Urban Affairs 

(January–August 2009) ....................................................................................... 124 

Statement submitted by the Securities and Exchange Commission ................... 125 

(III)

(1) 

EXAMINING PROPOSALS TO ENHANCE THE 

REGULATION OF CREDIT RATING AGENCIES 

WEDNESDAY, AUGUST 5, 2009 

U.S. SENATE, COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS, Washington, DC. 

The Committee met at 9:34 a.m., in room SD–538, Dirksen Senate Office Building, Senator Christopher J. Dodd (Chairman of the 

Committee) presiding. 

OPENING STATEMENT OF CHAIRMAN CHRISTOPHER J. DODD 

Chairman DODD. The Committee will come to order, and thank 

you, Secretary Barr, for being with us, and I thank my colleagues 

for being here this morning. The title of our hearing this morning 

is ‘‘Examining Proposals to Enhance the Regulation of Credit Rating Agencies,’’ and let me just say briefly—I want to make a few 

brief opening comments, then turn to Senator Shelby and, with the 

approval of my colleague from Alabama, ask Jack Reed if he wants 

to make a quick opening—he has done a tremendous amount of 

work on this, as has Senator Shelby, by the way—some opening 

comments on this as well. We had planned to do this at the subcommittee level, but there was such interest in the subject matter 

that we made it a full Committee hearing. 

I should just point out to my colleagues, beginning in March of 

2006, under the leadership of Senator Shelby, we had a hearing in 

March on this subject matter, in September 2007, when I became 

Chairman, on the rating agencies. We had a hearing on the rating 

agencies April 22, 2008. We had hearings on March 10th and 

March 26th; they were broader hearings, but we spent a lot of time 

on the rating agency subject matter. So over the last 3 years—one, 

two, three, four, five—this will be the sixth hearing that focused a 

lot on rating agencies. 

This will be our last hearing before coming back in September, 

and I just want to thank not only my colleagues, I want to thank 

our staffs. We have worked it pretty hard on this thing here. This 

is, I think, our 29th or 30th hearing since January 20th, and just 

this week alone, we had two. We have had 15 hearings on this subject matter alone in the last 4 weeks. And I know that is exhausting for staff, who have worked very hard for these things, and 

Members, I know with all the other work we have and all the other 

discussions going on, but it has been tremendously worthwhile, and 

virtually all of these have been to try and determine what is the 

best course for us to follow as we try and craft what will be maybe 

the most important piece of legislation this Committee will deal 
2 

with or has dealt with in decades, and that is the modernization 

of financial regulations. 

So it has been tremendously worthwhile, and I want to thank our 

witnesses as well, from the Administration as well as the private 

sector and academia and others who have come before the Committee. There are literally dozens who have who have shared their 

thoughts and ideas, and we are all very, very grateful for that 

input as we will now begin the process of trying to take those ideas 

and incorporate them into some sound legislative proposals. 

Senator Shelby and I are determined to have this be a very inclusive process. For all of our colleagues who are interested, you 

are invited to be at that table as we try and bring these ideas together and come out with a proposal that we all can embrace. And 

there will be points when we will have some disagreements, I am 

sure, but at least as I have listened to all of this, I think we are 

going to be in agreement far more than disagreement on matters, 

and I find that very encouraging as we go forward. 

So I wanted to share those thoughts, and I will ask the consent 

that the list of our hearings over 2009 be included in the record 

for those who may want to see it [Ed. Note: The list of hearings 

is provided on p. 124 in the Additional Material section of this 

hearing]. 

On the subject matter before us today, let me just say that this 

hearing on rating agencies—and, again, others may have different 

views on all of this, but there are two areas, we all know, that 

share in culpability for all the problems that we have seen unfold 

in our economy. But two areas alone I think deserve special recognition for the problems. One was, of course, the failure to regulate these brokers who were out marketing and promoting products 

that they knew were going to create a problems, that there was no 

way the borrowers were going to be able to meet the fully indexed 

price of these mortgages, and yet were luring people into it, getting 

paid, and selling off, and, of course, covering themselves financially, but literally knowing full well that this was going to create 

a bubble that was going to come back to haunt us. And the second 

is the rating agencies. This is to me stunning in a way that agencies that hold themselves out—in fact, I was looking this morning, 

just sharing with Senator Shelby here, and I will not—this is not 

the witnesses before us today that it fits, but a major rating agency—and let me just read—this is the Web site this morning. This 

is not the Web site of 4 years ago. The top of the Web site, the 

name of the agency: ‘‘Independent credit ratings, indices, risk evaluation, authoritative, objective, and credible.’’ I mean, in a sense, 

first of all, risk evaluation, all they were doing is being paid by the 

very people they were rating. Never bothered to do due diligence 

at all to determine whether or not these products were as creditworthy as they were claiming to be. And yet still to this day it is 

suggesting somehow that they are independent, conducting risk 

evaluation at all. Quite the opposite. 

And so this is an area where I think there is a lot of shared 

views on what we need to be doing. You will hear about that. But 

I was just this morning asked to pull up this Web site, and once 

again find that, despite all that has been said, despite six hearings 

on the subject matter—and none of us have yet the simple, quick 
3 

answer on how we move in a different direction. But, clearly, the 

present situation cannot last. 

So this is an area which will clearly be a part of our legislation 

and one that is deserving of some real attention in the coming 

days. But, again, I thank my colleagues for their work on this subject matter, and they ought to be—these companies need to be providing independent research and in-depth credit analysis on their 

Web sites, which is not the case today. 

So let me turn to Senator Shelby for some opening comments and 

then Jack Reed for any thoughts he has, and then we will get to 

our witnesses. 

STATEMENT OF SENATOR RICHARD C. SHELBY 

Senator SHELBY. Thank you, Mr. Chairman. 

The nature of today’s credit rating industry reflects decades of 

regulatory missteps rather than market preferences. Over the 

years, the Government granted special regulatory status to a small 

number of rating agencies and protected those firms from potential 

competitors. 

Beginning in 1975, the Securities and Exchange Commission 

began embedding NRSRO ratings into certain key regulations. 

Once credit ratings acquired regulatory status, they crept into 

State regulations and private investment guidelines. The staff of 

the SEC controlled access to the prized National Recognized Statistical Rating Organization, or NRSRO, designation by subjecting potential entrants to a vague set of criteria and an incredibly slow 

timeline. The SEC did little to oversee the NRSROs once so designated. Nevertheless, because of the doors they open, ratings from 

an NRSRO became an excuse for some investors to stop doing their 

own due diligence that Senator Dodd alluded to. 

Widespread overreliance on ratings meant that the effects of poor 

quality or inadequately updated ratings could ripple through the 

markets. By encouraging reliance on a small number of big credit 

rating agencies, bureaucrats at the SEC exposed the economic system to tremendous risk. 

Our current financial crisis, which was caused in part by the 

credit rating agencies’ failure to appreciate the risk associated with 

complex structured products, demonstrates just how big that systemic risk was. The troubles caused by the SEC’s flawed regime, 

however, did not come as a surprise. Several years ago, when I was 

Chairman of this Committee, we acted to address the problem after 

the SEC failed to take action on its own. I felt then that the industry’s heavy concentration and high profits were symptoms of an industry in serious need of reform. 

We then passed the Credit Rating Agency Reform Act of 2006, 

as Senator Dodd mentioned. The act set forth clear standards for 

the NRSRO application process. It also gave the SEC authority to 

regulate disclosures and conflicts of interest, as well as unfair and 

abusive practices. Unfortunately, the law we passed in 2006 did not 

have time to take root before the problems that they were intended 

to remedy took their toll. 

The SEC adopted rules pursuant to that legislation in June of 

2007. Over the following months, the number of NRSROs doubled, 

just as the performance of many highly rated subprime securities 
4 

revealed that such securities were not as safe as the rating agencies said they were. Today, we will consider a legislative proposal 

by the Administration and others to revisit the regulation of credit 

rating agencies. 

In determining whether new legislative steps are required, I believe we should keep in mind that the 2006 reforms are still working their way through the system. That does not mean, however, 

that we should not consider further changes. Every option should 

be on the table. One option is to remove rating mandates from regulations. Another is materially improving disclosure. As with any 

regulatory reform, however, we must also be mindful of unintended 

consequences. 

I strongly believe that the credit rating agencies played a pivotal 

role in the collapse of our financial markets. Any regulatory reform 

effort must take that into consideration, and I believe we will. 

Thank you, Mr. Chairman. 

Chairman DODD. Thank you very much, Senator Shelby. And as 

I mentioned, I want to commend our colleague and the former 

Chairman of the Committee. Senator Shelby really was early on involved in the subject matter. He and Paul Sarbanes I think worked 

together on that matter and did great work. He has been followed 

in that effort by Jack Reed, and I want to thank Jack publicly here 

for, as the Subcommittee Chair, dealing with these matters, and he 

has worked very, very hard in developing some legislative proposals which we invite all of our colleagues to take a look at and 

to consider as part of our overall financial modernization bill. But 

he has been tremendously helpful, and I want to again publicly 

thank Jack Reed for his work. 

Jack, any thoughts on this? 

STATEMENT OF SENATOR JACK REED 

Senator REED. Thank you, Mr. Chairman. I want to thank you 

for not only holding this hearing, but also your efforts to reform financial institution regulation. 

I particularly want to commend Senator Shelby because it was 

his leadership really in 2006 that first gave the SEC the clear authority to begin to regulate the credit rating agencies. In effect, the 

credit rating agencies are so central to investor decisions that it is 

comparable to the Good Housekeeping Seal of Approval. To expect 

a municipal finance director in a small town to be able to do due 

diligence, to make sure he has the AAA rating, is asking a lot. So 

we depend significantly on the rating agencies, and as evidence 

suggests, part of our current economic problems were a result of 

ratings that were not substantiated over the long run. 

What I believe we have to do is to give legislative support to the 

SEC’s efforts to focus on transparency through enhanced disclosure, and also to counteract the appearance or substance of conflict 

of interest. And the legislation that I propose and in many respects 

that is reflected in the Administration’s proposal would do that. 

There is one other issue that I have included in my legislation; 

that is, to change the pleading standard in securities cases so that 

a plaintiff could at least reach the discovery stage with respect to 

a credit rating agency to see if, in fact, their behavior was reckless. 

And we do not change the overall 10(b)-5 standard, which is a very, 
5 

very high bar for liability. But effectively today, under the securities laws, it is very difficult for a plaintiff to even get to discovery 

to see what, in fact, went on with the rating. And I think this was 

something that we should pursue. 

Mr. Chairman, thank you and I look forward to the witnesses. 

Chairman DODD. Thank you very much, Senator Reed, and we 

thank you again for your work in this matter. We look forward to 

your questions, again. And as I said at the outset, instead of helping people understand risk, it was hiding risk, in effect, too often 

and relying on the people who paid their salaries. And it has much 

to do with the market failure as anything else I can think of, the 

rating agencies, and the dependency that people had on them. So, 

clearly, there is a need for our attention. 

So, with that, Mr. Barr, Mr. Secretary, we look forward to your 

testimony. 

STATEMENT OF MICHAEL S. BARR, ASSISTANT SECRETARY 

FOR FINANCIAL INSTITUTIONS, DEPARTMENT OF THE 

TREASURY 

Mr. BARR. Thank you very much, Chairman Dodd, Ranking 

Member Shelby. It is a pleasure to be back here today with you 

and the other Members of the Committee to talk about the Administration’s plan for financial regulatory reform. 

As you know, on June 17th, President Obama unveiled a sweeping set of regulatory reforms to lay a foundation for a safer, more 

stable financial system. We have sent up draft legislation for your 

consideration in most of the areas covered by that proposal, and in 

the weeks since the release of those proposals, we have worked 

with you and your staffs on testimony and briefings on a bipartisan 

basis to explain and refine the legislation. 

Today, I would like to focus on credit ratings and credit rating 

agencies and the role that they played in creating a system where 

risks built up without being accounted for or properly understood, 

and how these ratings contributed to a system that proved far too 

fragile in the face of changes in the economic outlook and uncertainty in our financial markets. 

This Committee has provided strong leadership to enact the first 

registration and regulation of rating agencies in 2006 under Senator Shelby’s leadership, and Chairman Dodd, Ranking Member 

Shelby, Senators Reed and Bunning have continued that tradition 

going forward. The proposals that I will discuss today build on that 

already strong foundation of this Committee’s work. 

It is worthwhile to begin our discussion of credit ratings with a 

basic explanation of the role they play. Rating agencies solve a 

basic market failure. In a market with borrowers and lenders, borrowers know more about their own financial prospects than lenders 

do. And especially in the capital markets, where a lender is likely 

purchasing a small portion of the borrower’s debt in the form of a 

bond or asset-backed security, it can be inefficient for all lenders 

to get the information they need to evaluate the creditworthiness 

of the borrower. Lenders will not lend as much as they otherwise 

might, especially to lesser known borrowers such as smaller municipalities, or they will offer significantly higher rates. Credit rat-
6 

ing agencies provide a rating based on scale economies, access to 

information, and accumulated experience. 

At the same time, credit ratings played a key role, a key enabling 

role in the buildup of risk in our system and contributed to the 

deep fragility that was exposed in the past 2 years. The current crisis had many causes, but a major theme was that risk—complex 

and often misunderstood—built up in ways that supervisors, regulators, market participants did not, could not monitor, prevent, or 

respond to effectively. Rapid earnings from growth driven by innovation overwhelmed the will or the ability to maintain robust internal controls and risk management systems. 

Rating agencies have a long track record evaluating the risks 

bonds, but evaluating structured financial products is a fundamentally different type of analysis. Asset-backed securities represent a 

right to the cash-flows from a large bundle of smaller assets. 

Certain asset-backed securities also rely ‘‘tranching’’—the slicing 

up of potential losses—and this process relies on quantitative models that can produce and did produce any desired probability of default. Credit ratings lacked transparency with regard to the true 

risks that a rating measured and the core assumptions that informed the rating and the potential conflicts of interest in generating that rating. This was particularly acute for ratings on assetbacked securities, where the concentrated systemic risk are quite 

different from the more idiosyncratic risks of corporate bonds and 

are much more sensitive to the underlying assumptions. 

Investors relied on the rating agencies’ assessment of risk across 

instruments, and they saw those risks as remarkably similar, despite the complex and different securities underlying the assets. 

Ultimately, this led to serious overreliance on a system for rating 

credit that was neither transparent nor free from conflict. And 

when it turned out that many of the ratings were overly optimistic, 

to say the least, it helped bring down our financial system during 

the financial crisis. 

We do need fundamental reform. The Administration’s plan focuses on a series of additional measures in three key areas: transparency, reduction of rating shopping, and addressing conflicts of 

interest. It recognizes the problem of overreliance and calls for reducing the ratings usage wherever possible. 

With respect to transparency, we would call first for better transparency in the rating agency process itself as well as stronger disclosure requirements in securitization markets more broadly. We 

would require transparency with respect to qualitative and quantitative information underlying the ratings so that investors can 

carry out their own due diligence more effectively. 

Mr. Chairman, I see that my time is up. Would you mind if I 

take a couple more moments to outline the key proposals? 

Chairman DODD. No. Go ahead. 

Mr. BARR. Second, the use of an identical rating system between 

traditional corporate bonds and structured financial products allowed investors to use their existing standards with respect to ratings and allowed regulators to use existing guidelines without the 

need to consider the different risks posed by structured and 

unstructured products. Our proposals address this directly by requiring that rating agencies use rating symbols that distinguish be-
7 

tween structured and unstructured financial products. The first 

point, transparency. 

Second, on rating shopping, an issuer may attempt to shop 

among rating agencies by soliciting preliminary ratings from multiple agencies and enlisting the agency that provides the highest 

one. Our proposal would require instead that an issuer disclose all 

of the preliminary ratings it had received from different credit rating agencies, so investors could see how much the issuer had 

shopped and whether his final rating exceeded one of those preliminary rating. That should help deter rating shopping in the first 

place. 

In addition, the SEC has proposed a beneficial rule that would 

require agencies to disclose the rating history so that markets can 

assess the long-term quality of ratings. 

In addition, we strongly support a proposed SEC rule that would 

require issuers to provide the same data they provide to one credit 

rating agency to all other credit rating agencies to allow those 

agencies to provide additional independent analysis to the market 

and to improve the ability of competition in the marketplace in a 

beneficial, positive way. 

Third, with respect to conflicts of interest, strong new transparency requirements with respect to payments, we would in addition ban rating agencies from providing consultant services to 

issuers that they also rate, and each rating agency would be required to disclose the fees that they were paid for a particular rating, as well as the total fees paid to the rating agency by the issuer 

over the previous 2 years. 

Last, we need to strengthen and build on SEC supervision with 

a dedicated office focused on compliance and a requirement that 

the SEC evaluate the rating agencies’ compliance with their own 

rules and their own methodologies. 

In conclusion, we all know that markets rely on faith and trust. 

We need to restore honesty and integrity to our financial system, 

and the plan that we have set forth before you for consideration 

would lay a new foundation for financial regulation that, in our 

judgment, will once again help make our markets both vital and 

strong. 

Thank you. 

Chairman DODD. Well, thank you very much, Secretary Barr. We 

appreciate that very much. And let me just say we appreciate very 

much as well the Administration’s continuing conversation with us 

in this Committee about your ideas. We welcome them. I know I 

speak for all of us here, Senator Shelby and I particularly. We look 

forward each week to the ideas that come up and the thoughts that 

are coming from the Administration, as well as from others. As I 

said earlier, this is a Committee that is open, and it is a dynamic 

process that we want to hear ideas as to how we ought to move 

forward. 

But let me begin by raising the issue of, given the problems 

caused by faulty ratings and the need for strong Federal oversight—I think we have all come to that conclusion. The question 

is how do you do this. We all recognize the problem. Now what is 

the answer? And there are a lot of different views on what the answer ought to be. 
8 

In fact, I was just saying to Senator Shelby, I have talked to 

some people in the private sector who begin to raise the question 

of whether or not you even need ratings agencies. Today, given 

more transparency, the market in many ways could help you determine whether or not a given product is actually worthy of a AAA 

rating or something less than that. So there is an argument of saying maybe this is an archaic structure, although I do not believe 

that is a widely held view. There are those who embrace that view. 

But I wanted to share with you a view that has been held by 

some in direct conflict with the proposal that the Administration 

has given us, and that is to create a new office within the SEC to 

conduct the oversight of rating agencies. 

The Council of Institutional Investors’ white paper that was prepared by Professor Frank Partnoy recommends creating, and I 

quote, ‘‘a single independent credit rating agency oversight board’’ 

to oversee registration, inspection standards, and enforcement actions related to the NRSROs, similar to the Public Company Accounting Oversight Board for accountants. Such an independent 

board could offer higher salaries to attract staff with greater expertise. Others have observed that the regulation could be moved to 

a systemic risk regulator, authority. 

Please describe, if you would, how the Treasury determined 

which regulator among these options would be best to oversee the 

credit rating agencies. How is it you came to the SEC choice? 

Mr. BARR. Mr. Chairman, I think that historically the SEC has 

had important functions in this area. This Committee’s action 

under the leadership of Senator Shelby enhanced that authority to 

the SEC. We were attempting to build on that basic foundation in 

our legislative proposal. 

Under our proposal, the SEC could delegate some of those functions to the Public Accounting Board as a way of recognizing their 

expertise. In our judgment, the SEC is able to attract quite highly 

talented individuals in this area, and having a dedicated office focused on this would advance the mission. 

Chairman DODD. I want to raise a question here with you, which 

I was stunned by the question because I just assumed that this 

went on, but apparently it does not. 

Credit rating agencies, I am told and they state, they do not undertake to verify the information that issuers provide them in making rating. This has led, obviously, to a perception among some 

that the rating agencies take the issuer’s statements at face value 

and can choose to ignore other information they receive or are 

aware of about the issuers when producing a rating. 

Do you feel it would be appropriate to require rating agencies in 

formulating their ratings to consider information that they receive 

about an issuer and find credible from outside sources? What I find 

stunning is I just assumed that went on. I am told it does not. So 

this is sort of a—I am answering my own question. But tell me why 

you think there should be a different answer than the one that I 

am suggesting in my questioning. 

Mr. BARR. I would never be so foolish. 

[Laughter.] 

Mr. BARR. I hope. 

Chairman DODD. You should not feel shy. Others do all the time. 
9 

Mr. BARR. So let me just say, we tried to draw a line in our proposal. We have tried to be quite clear that the Government should 

not be in the business of designing the methodologies for the rating 

agencies or validating them in any way, because we think that will 

just increase reliance on them. 

We have been quite clear that they need to disclose whatever due 

diligence they do so that there is transparency so that investors 

know when they get a rating—the rating company would say, ‘‘We 

didn’t do any due diligence on this rating,’’ or the rating company 

would have to say, ‘‘The due diligence we did consisted of calling 

our buddy.’’ Or hopefully when the transparency kicks in, the rating agency would have to say, ‘‘We did real due diligence. We had 

a third party, and they can certify they actually checked loan files.’’ 

And I think that with that level of transparency, it will be very 

hard for—harder for rating agencies to continue a practice of—at 

least a mixed practice with respect to the kind of due diligence they 

have done. 

Chairman DODD. You said something in the first sentence or two 

in your answer to my question that we do not want to dictate or 

require rating agencies to conduct their due diligence. Forgive me, 

but I do not understand what you are saying at that point. If we 

do not require them to do due diligence, if we do not require them 

to at least consider information, credible information that may contradict the information they are receiving from the issuers paying 

them, how can we have any confidence if we do not require that 

as a matter of public policy? 

Mr. BARR. I think there is room for lots of reasonable people to 

disagree about exactly where to draw the line on methodologies, 

Mr. Chairman, but I think the key principle is we want to be sure 

that there is transparency about whatever methods they used. We 

want to make sure that the SEC can examine whether the agencies 

have actually used the procedures they say they are using. 

Chairman DODD. They say they are using, they say they are relying on the issuer, the one who is paying them. They can have all 

the transparency in the world. You telling me that you are relying 

on that information and that constitutes due diligence does not give 

me a great deal of confidence. 

Mr. BARR. It does not give me any confidence, sir. I am not suggesting that. But I think that we should not inflate the confidence 

level that the rating agencies would have on the basis of that level 

of due diligence, and if the investor community can see, is required 

to be shown that the kind of due diligence that is being conducted 

is not really the diligence that ought to be due, I think it will have 

a significant salient effect on the process. 

Chairman DODD. Senator Shelby. 

Senator SHELBY. Secretary Barr, it would take a long stretch, 

wouldn’t it, to bring a lot of confidence back into what we feel has 

been lost with the rating agencies, would it not? 

Mr. BARR. I would agree with that, sir. 

Senator SHELBY. Secretary Barr, S&P, Moody’s, and Fitch have 

not, in most people’s eyes, performed well in recent years. I think 

that is probably an understatement. Nevertheless, the SEC has 

ebbed a persistent confidence in these three firms—three firms— 

a sentiment that manifests itself in regulatory requirements that 
10 

blessed the organizational structure, approach to ratings, and payment scheme of those firms. There seems to be similar bias in your 

draft legislation. I hope not. 

What steps, if any, did you take, you and your team, to ensure 

that no particular organizational structure, approached to ratings, 

or payment model was favored over another and that the regulatory structure will accommodate innovative entrance into the rating? I have always advocated, gosh, three firms nominate—they do 

not have it all, thank God, have all the business, but there has not 

been enough competition there. You know, why should you just 

bless three firms? 

Mr. BARR. Senator Shelby, we would agree with you there should 

be competition in this space, more entrants into the market. They 

should be done on a level playing field. We should have a diversity 

of approaches to a business structure so you have investor-pay and 

issuer-pay models that need to be accommodated in the system. 

And I think all that is absolutely critical. 

Senator SHELBY. Something has gone wrong. We both agree with 

that. And so what we are trying to do is have a basic new approach 

to it to try to bring more transparency, a lot of transparency, eliminate conflicts of interest and all these things that were so rampant 

in this business. Do we agree on that? 

Mr. BARR. Yes, I think those fundamental principles are embedded in our legislation. We would be in agreement about that. 

Senator SHELBY. How is the decision to leave the NRSRO ratings 

embedded in the regulatory framework consistent with the goal of 

not affording regulatory privilege to a large entity? 

Mr. BARR. Senator, I think that we share the goal of reducing reliance, both by private investors and by public regulators, on the 

rating system. And in our judgment, that requires methodically 

and carefully going through each way in which rating agencies’ ratings are used by different regulators in different contexts. 

There may be some areas where you can reduce reliance. There 

may be other areas where you can eliminate reliance. There may 

be some areas where you can use the rating but you have to require—you should require judgment, independent judgment, on top 

of that. And each of those contexts is quite, in our judgment, specific. We want to work our way through it. We are committed to 

doing that. The President’s Working Group of Financial Markets 

has a team that is looking at this issue, again, regulation by regulation. 

Senator SHELBY. Do you believe that one of the priorities at the 

SEC—one of the priorities, they have a lot—should be to straighten 

out the problems that we all deem necessary with the rating agencies? 

Mr. BARR. I think it is one of the top priorities in reform, along 

with making sure we have resolution authority—— 

Senator SHELBY. Absolutely. 

Mr. BARR. ——making sure we have a way of reducing systemic 

risk in the system and protecting consumers. So I think it is a critical part of the overall package. 

Senator SHELBY. Heretofore, one of the factors that led this Committee to act in 2006 legislatively was the fact that the NRSRO 

policy decisions were being made at the SEC at the staff level rath-
11 

er than the Commission level, as you well know. Freestanding offices at the Commission, such as the Office of Compliance, Inspections, and Examinations, have not always been subject to the same 

level of scrutiny as the main divisions. You propose an office to be 

created, as I understand it, at the SEC dedicated to the NRSRO 

supervision. How would you ensure here sufficient accountability to 

the Commission, to the Securities and Exchange Commission? 

Mr. BARR. Senator Shelby, that is an issue I would be happy to 

continue to work further with you and the SEC on. In our judgment, having a dedicated office would increase accountability to the 

Commission and to the Congress because you would know exactly 

who is responsible for that job. 

Senator SHELBY. My last question, and my time is about up, you 

also propose—your proposal would authorize the Securities and Exchange Commission to delegate reviews of NRSROs to the Public 

Accounting Oversight Board. What is the PCAOB’s expertise that 

makes it uniquely qualified for this task, and would you recommend that the PCAOB Board be structured to reflect the new 

responsibilities? 

Mr. BARR. Senator, the—— 

Senator SHELBY. They are getting into a new field here, would 

they not? 

Mr. BARR. There may be elements of supervision that could be 

delegated with respect to accounting methodologies and other matters, where they do have expertise. We have not considered restructuring the Board to accommodate that. I would view that as an 

available option to the SEC, but not integral to the proposal. 

Senator SHELBY. Thank you. Thank you, Mr. Chairman. 

Chairman DODD. Thank you very much. 

Senator Reed. 

Senator REED. Well, thank you very much, Mr. Chairman. 

Thank you, Mr. Secretary. The issue that Chairman Dodd raised 

with respect to due diligence is embroached by the second panel, 

Professor Coffee and Mr. Joynt on behalf of Fitch. One suggests 

that we instruct—Professor Coffee—neutral clients and other institutional investors that they cannot rely on ratings to meet their fiduciary obligations unless there was, in fact, third-party due diligence. Mr. Fitch’s approach is to ensure that the issuers and underwriters perform such due diligence. Do you have a position with 

respect to these two views or another view? 

Mr. BARR. The Administration hasn’t weighed in on the question 

whether there should be additional requirements outside of the rating agencies with respect to the purchasers of rated securitizations. 

I think that we would want to be careful, again, not to take steps 

that would suggest excessive confidence in the ratings themselves, 

and anything that we can do that improves due diligence by investors is likely to be in the right direction. But whether that needs 

to be a requirement on the purchaser or not, I frankly have not 

formed a developed view. 

Senator REED. One of the aspects of the legislation I proposed is 

to at least adjust the pleading standards and effectively, a private 

right of action would be, I think, a stimulus for a lot of due diligence. Is that your position? 
12 

Mr. BARR. In our judgment, this presented a complicated question. On the one hand, the changing the pleading standard might 

increase the incentives for due diligence in the system. On the 

other hand, we were concerned that such a standard might increase reliance by the investor or public on the rating agencies and 

may provide further avenues for issuers to sue over corporate 

downgrades, which we thought would potentially pose a problem in 

the system. So in our judgment, this was a very close question and 

we did not include it in our legislative proposal. 

Senator REED. Thank you. Mr. Joynt, on behalf of Fitch, in his 

testimony says a mandatory registration concept—your concept—is 

unnecessary and unwarranted, is not consistent with basic free 

speech principles. And then Rapid Ratings’ testimony predicts that 

the proposal will force compliance costs, raise barriers to entry of 

new rating agencies, and essentially impede technology and innovation. How would you respond to these, first, that mandatory registration is unnecessary, and second, to—— 

Mr. BARR. In our judgment, the credit rating agencies shouldn’t 

be able to opt out of having high standards and a level playing 

field. Consistent with our overall approach to financial regulatory 

reform, we don’t think that financial institutions, credit rating 

agencies, or other participants in the system should get to choose 

their regulator or not. And so in our judgment, having high standards, a level playing field for competition was really important. I 

think, on the basis of the 2006 legislation, there is in place a system for encouraging new entrants into the credit rating agency 

process. Registration is not going to be a significant barrier to 

entry. We think competition is a good idea in this space if it is on 

a level playing field with high standards so there is no race to the 

bottom, the competition is based on everybody playing by the same 

rules. 

Senator REED. Finally, Mr. Secretary, in the testimony of the 

succeeding panel, there is a question by Rapid Ratings about the 

rating symbol, distinguished between structured and nonstructured 

products. They suggest the problem is not that investors did not 

know they were buying structured products. They either knew and 

were happy to get the higher yield or they didn’t understand the 

risks that they were buying. Essentially, the problem, they suggest, 

is not symbology, but accuracy. Again, how would you respond to 

that proposal? 

Mr. BARR. I think the rating of a structured product is a fundamentally different exercise from the rating of a corporate bond. 

The distinguishing features need to be noted. It is not just the symbol that is used, but the underlying availability of qualitative and 

quantitative information that we would require disclosure on. The 

package of those reforms, I think, will enhance transparency in the 

market and make it less likely that garbage ratings can be invented. 

Senator REED. Thank you, Mr. Chairman. 

Chairman DODD. Thank you very much. 

Senator Corker. 

Senator CORKER. Mr. Chairman, thank you, and Senator Reed, 

thank you for all of your effort in this regard. 
13 

Mr. Barr, thank you for being here. You are a very pleasant guy 

and I am hoping that over time, we will get this all in balance. I 

want to say, though, just in listening to testimony, it just seems 

a little schizophrenic in that this was the biggest regulatory failure 

in 30 years, and in essence, regulators outsourced their regulation 

to three for-profit entities. I mean, that is really what has happened here. We obviously realized they were doing no due diligence 

and basically taking what the issuers were saying. 

In testimony in answering just a minute ago, you said that the 

Federal Government should not be in the business of designing 

what these guys do. But on the other hand, as it relates to consumer protection, you guys want to design the products that private companies are offering. I just find this almost an out-of-body 

thing. When we are looking at trying to fix the inconsistencies that 

led to this, on one hand, we are doing almost nothing but transparency, OK. On the other hand, we are getting into actually telling companies what products they are going to offer. This is just 

sort of an imbalanced approach, and I don’t want to spend long on 

that, but I wonder if you want to rebut that at all. 

Mr. BARR. Yes, Senator. You and I have had this exchange on 

previous occasions. In our judgment, we are not suggesting that the 

Government is going to be in the business of designing products. 

The legislation provides the authority to say there is a product in 

the marketplace that is a standard product, a 30-year fixed-rate 

mortgage or a 5–1 ARM, and when a customer is being offered a 

pay option ARM, the mortgage broker should show them—— 

Senator CORKER. And I understand all that—— 

Mr. BARR. ——what a 30-year fixed-rate mortgage looks like. 

And so we are not in the business of designing that product, either. 

We are saying there is a product in the marketplace and it is the 

standard product. How do we judge those? 

We have, in that context, a large group of individuals who are 

not sophisticated investors, market participants. It is a fundamentally different context from the context of credit rating agencies, 

where the basic backdrop is the institutional investor market and 

sophisticated retail investors’ participation. And so you would want 

to come up with standards that are appropriate to each of those 

marketplaces. 

Senator CORKER. Well, I appreciate that. I do see, though, that 

you are basically keeping the same regulatory scheme and process 

and making people rely or pay for these. 

Let me go down a little different path. Eric Dinallo, who is the 

Insurance Commissioner in New York, or has been up until recently, suggested that instead of the kind of scheme that we have 

now, since insurance companies in particular rely heavily on ratings, that the insurance entities in these States should actually pay 

for the ratings and they should be made available to all. That way, 

if credit rating agencies don’t perform properly, they would be discarded. But in essence, it would be a whole different way of looking 

at it. Now, that may not be perfect, but I am just wondering if that 

kind of thinking makes any sense from your standpoint. 

Mr. BARR. I do think it makes sense to have a diversity of payment models and investor-pay models and issuer-pay models. I 

think investor-pay models have some downsides once the rating oc-
14 

curs. There are concerns that the investor would have incentives to 

avoid downgrades on their own holdings. But I do think having a 

diversity of views, a diversity of approaches within the same basic 

legal structure makes a lot of sense. 

I think we need to reduce reliance by regulated entities on ratings, but I think it is going to take the process a good bit of time 

to figure out how to replace that function in the regulatory structure with alternative judgments that can perform a similar function. 

Senator CORKER. You know, I have issued bonds in the past and 

have had rating agencies rate them. I do want you to know all of 

them were paid in full. 

[Laughter.] 

Senator CORKER. But it is kind of an interesting process that you 

go through. I mean, you really do sort of look for the entity that 

is going to give you the rating, and then you pay them an up-front 

fee. And then, as the borrower, you sweat bullets ensuring you 

could pay everything back over time. I do wonder—— 

Mr. BARR. That is very old fashioned of you, Senator. 

Senator CORKER. Yes. Thank you for that, actually. 

[Laughter.] 

Senator CORKER. I do wonder whether we should consider a different payment mechanism, where in essence the credit rating 

agencies have skin in the game over time. And then instead of 

being paid up front, they are paid based on how it performs. We 

have talked about that a little bit with mortgage brokers and others who have had no skin in the game. And I wonder if you might 

comment on that. 

And I think some folks, some colleagues in the other body, on the 

other side of the aisle, have actually been promoting something 

called covered bonds, where in essence, instead of getting all of this 

risk off banks’ balance sheets, they in essence are in the game all 

the way through. I wonder if you might comment on those two, and 

thank you for your testimony. In spite of some of the differences 

we have, and there is not time to enumerate all those right now, 

I do look forward to working with you and others to come up with 

something that is in the middle of the road. 

Mr. BARR. Thank you, Senator. I think both suggestions hold out 

very good promise. One of the features of our legislative proposal 

would be to give the SEC authority to require trailer payments of 

the kinds that you have described for credit rating agencies. I think 

it is a terrific suggestion. And I think there is also enormous work 

that can be done with covered bonds. It is not going to be a replacement for securitization, but I think it is an additional promising 

avenue we would be happy to work with you on. 

Senator CORKER. Thank you. 

Chairman DODD. Thank you, Senator. 

Senator Warner. 

Senator WARNER. Thank you, Mr. Chairman. 

I know a lot of my colleagues have brought up a number of the 

failings of the rating agencies, and clearly, in some of the products 

lines recently, that has been the case. This is perhaps non-PC, this 

point, but there has been value from the rating agencies. I think 

back in my tenure as Governor, and I think Senator Johanns would 
15 

agree, there was sometimes validity in the rating agencies when 

you were looking at State bonds and others, that they did provide 

that independent arbiter service to kind of cut through the political 

clutter of both sides back and forth so somebody could come in and 

to some level of diligence, at least, assess what your State was 

doing or your locality was doing over a short-term or a long-term 

basis. 

We did find usage of the rating agencies, that they did do due 

diligence, something that clearly I find what the Chairman and 

Senator Reed and Senator Shelby said is pretty amazing, as well, 

that they did not in so many of these corporate circumstances—although again, the idea of legislating that requirement, I think, Mr. 

Barr, you have raised some appropriate concerns about, because 

would that enhance, put that Government moral hazard thing that 

we all don’t want to extend to a whole new set of organizations in 

terms of the rating agencies. 

I want to ask two questions. One is, we have had mostly the 

issuer-paid funding model. The Administration’s proposal is that an 

investor-paid funding model. I know certain investor-paid models 

are starting. Do you really think that marketplace approach, with 

the investor-funded rating agencies—I am asking you to make a 

prediction here now—do you think it will be successful? Do you 

think the market will respond to that? 

Mr. BARR. I think there is an opportunity, Senator, to have a 

structure that has both models, investor-pay and issuer model, 

exist and thrive if there is the appropriate regulatory backstop of 

a level playing field. I think that the initiative to require an issuer 

to provide the basic information to all credit rating agencies when 

it provides it to one, so there can be true dissemination of information, true competition, will help significantly in this regard if 

moved forward. And having a level playing field for that kind of 

competition on the basis of high standards and meaningful disclosure, I think there is an opportunity for that model to work. 

I think, frankly, we have so many challenges right now in restarting our financial markets, our securitization markets, and in 

laying a new foundation that it is not clear yet—— 

Senator WARNER. I didn’t make a prediction, and I do understand this question of whether we should be blessing the methodologies. It is a real hard issue. 

Let me, with only a minute-and-a-half left, go to my other question. You know, one of the things that we use these terms, TripleA, Double-B, what have you, but one of the things that I have felt 

that investors have not had, and I am not sure I have had as somebody who has been on the issuer side and on the investor side, that 

we have ever kind of translated that into, all right, what does that 

mean in terms of the actual percentage chance of default, number 

one, or the second category, even if there is a default, what percentage of my investment could be truly in jeopardy, and should 

we, as we think about these terms, think about at least putting 

some commonly accepted standards around for investors. 

You have got a Triple-A. What is your percentage of default risk? 

What percentage of your investment are you potentially going to 

lose—ten percent, 50 percent, 100 percent? We have started to talk 

a little bit about here between structured products and 
16 

unstructured products, but should we actually try to translate 

these letter-grade ratings into actual percentage of risk of default 

or risk of amount of loss? 

Mr. BARR. Yes, Senator. I think that is absolutely critical to 

demystifying the process, making it more transparent. In our proposal, we fully agree with you. There should be, in addition to the 

rating, a report that describes the probability of default, the loss 

given default, the variance, the reliability of the data, the underlying quality of the asset, all the information underlying the symbol so that investors in the market can make better judgments 

about how to evaluate the rating itself. 

Senator WARNER. We would know what a Triple-A rating equates 

to, what a Double-B rating equates to in terms of both percentage 

chance of default and, you have got $100 invested, what percentage 

of that $100 you could lose if that default takes place—— 

Mr. BARR. That is right, and on an individual securitization 

basis, so you would be making a judgment—— 

Senator WARNER. All the way down to an individual 

securitized—— 

Mr. BARR. Correct. 

Senator WARNER. Thank you, Mr. Chairman. 

Chairman DODD. Very good question, Senator. Thank you very 

much for your thoughts on that. 

Senator Johanns. 

Senator JOHANNS. Thank you, Mr. Chairman. 

Secretary Barr, good to see you again. 

Mr. BARR. Good to see you. 

Senator JOHANNS. I will say something that I think you will find 

very unusual. My colleague from Virginia was talking about working with the rating agencies as Governor. In our State, the State 

of Nebraska, we have no debt. I never worked with a rating agency 

in all the 6 years I was Governor because it wasn’t relevant. We 

paid for everything, even highways. So that is one way of approaching this. Then you don’t need rating agencies. Kind of an unusual 

phenomena that to pay for things, you would actually have two 

choices, cut spending or raise taxes, and we could use more of that 

out here in Washington. 

But I did work with rating agencies as Mayor of Lincoln as we 

would issue bonds. 

Let me ask you a little bit maybe of a mundane question, but 

maybe an important question. As you know, there has been, especially recently, some articles written about First Amendment protection for rating agencies. Historically, it was viewed that they 

were issuing an opinion and therefore they had the protection of 

the First Amendment if they were sued. 

As you move down this pathway of additional regulation or, as 

Senator Corker points out, maybe rating agencies need to have 

some skin in the game, if you will, do you have any thoughts whatsoever about whether that moves a rating agency out from underneath the First Amendment protection? What would be your 

thoughts on that? 

Mr. BARR. Senator, let me start by saying I am not an expert in 

the First Amendment, so my judgment, the judgment of the team 

when we were working on this was that there is lots of scope for 
17 

appropriate regulatory requirements on the rating agencies, including all the ones that we have in our legislation and a number of 

the other proposals this Committee has considered that do not 

raise significant First Amendment concerns. 

Senator JOHANNS. So you think they would—and I appreciate 

you are not a First Amendment lawyer. I am not, either, even 

though I am a lawyer. But you are thinking that they still will be 

able to defend their lawsuits by saying, we are protected by the 

First Amendment because this is an opinion? 

Mr. BARR. Senator, I don’t want to get too deep into this here, 

again, because I am not an expert in the First Amendment, but in 

our judgment, the range of proposals that we have put forth or that 

are in the Committee drafts of versions of this do not raise significant First Amendment concerns, in our judgment. 

Senator JOHANNS. OK. 

Mr. BARR. And so I would not have put that on the top of the 

list of issues and the tradeoffs that we have been discussing. I do 

not think that that is a significant issue in the tradeoffs. 

Senator JOHANNS. OK. In your judgment, how have the rating 

agencies worked historically? We all know nothing was working 

very well over this past period of time, but historically, if you were 

to look at how they have done, what kind of mark would you give 

them? 

Mr. BARR. I think in many areas, the rating agencies have performed quite important functions with respect to corporate issuance 

of municipal bonds. In many areas, they have significantly fallen 

down on the job in those same basic areas—corporates and municipals, sort of really quite straight-forward assessments that they 

have been significantly wrong on. And in the structured product 

area, I would say the evidence is really quite negative. 

Senator JOHANNS. Here is my concern, and maybe it is a question based upon what Senator Corker was asking you again. But 

it seems to me that one of the risks that we run here is that we 

so gum up this system with additional regulations that, number 

one, no one could ever enter into competition. If you don’t have a 

head start dealing with regulations, you are just not going to get 

in. So we exclude competition. 

And then the second thing is, I just worry that what we end up 

with is literally a system where the consumer pays a heavier price 

for this. Somebody has to pay for the regulation. There just isn’t 

any doubt about it. 

Have you done any cost-benefit, any analysis of the impact on 

just the average guy out there who may be investing a bit of their 

retirement or whatever and the impact this will have? 

Mr. BARR. Senator, I think, unfortunately, the whole country is 

paying the price. Every consumer is paying the price today of a significant failure of our financial regulatory system. So we are all 

paying for it now in spades. I think we need to have a system in 

the future in which the level playing field and high standards are 

established in a way that makes it much less likely we are going 

to blow up our financial system and cause this amount of harm to 

the average American homeowner, consumer, small business person. So in our judgment, the tradeoff isn’t even close. The kind of 
18 

approach that we are suggesting here is not a heavy regulatory 

burden, but it is an essential one. 

Senator JOHANNS. Mr. Chairman, thank you very much. 

Chairman DODD. Thank you, Senator Johanns. 

I think it has been valuable, by the way, to have two former Governors, two former mayors on the Committee. And while I think 

there is a difference, obviously, in terms of rating agencies when 

it comes to municipal or public bonds as opposed to private 

securitizations, nonetheless, it is a valuable piece of information as 

we look at this, because obviously, when we talk about rating agencies, there is a tendency for all of us to focus in on the private side 

of this. But we ought to keep in mind the public entity side of this 

question, as well, and I hadn’t really given that much thought. I 

am glad you raised it, as did Senator Warner and Senator Corker. 

Senator Merkley, you are up next. 

Senator MERKLEY. Thank you very much, Mr. Chair, and thank 

you for your testimony. 

I believe that the proposal bans consulting fees by rating agencies and requires disclosure of payments. Certainly banning consulting fees addresses part of the conflict of interest. We still have 

kind of the fundamental notion that folks are getting paid for what 

they provide and the possibility of shopping between agencies and 

kind of getting a heads up on if we did purchase it, what your rating might be. So anything that we need to do that is kind of more 

fundamental in terms of having a different system for structuring 

payments for rating, doing it through a central fund that the folks 

pay into or some other—is there any ideas you have seriously considered that would more directly take on the conflict of interest? 

Mr. BARR. Well, I think, Senator, we think conflicts of interest 

did play a role in this problem. We have a series of measures with 

respect to the banning of consulting payments, strengthening disclosure and management of conflicts, disclosing the fees paid by 

issuers, a look-back requirement with respect to the revolving door 

to make sure that revolving doors haven’t influenced these structures, designation of a compliance officer, disclosure of the preliminary rating received to get at the rating shopping question that you 

described. And I think, fundamentally—and we share Senator 

Corker’s judgment that having trailer payments could play a positive role in the basic structure. 

Having a diversity of different business structures, both investorpay and issuer-pay models, together with a requirement that the 

information provided to one agency is provided to all the others, 

will have a significant impact on the conflicts problem. It won’t 

eliminate it, but it will have a significant impact. 

Senator MERKLEY. All those are very good and well, but you 

didn’t answer the question I asked, which was did you consider—— 

Mr. BARR. I tried. 

Senator MERKLEY. ——changes in more—that went more to the 

heart of the structural conflict of interest of having the payments 

go directly from the bond issuer to the—and if you rejected such 

ideas, what did you consider and why did you reject them? 

Mr. BARR. We looked at a range of models that had been proposed, from switching back to a full investor-pay model. We looked 

at the utility model that had been suggested. We looked at the rou-
19 

lette wheel model of using rating agencies that had been suggested. 

In our judgment, each of those suffered from some significant infirmities. If you used the utility model, for example, you are really 

just enshrining the rating agencies even more in the process and 

putting a Government seal of approval on them. If you use the roulette wheel model, you are reducing the incentives for meaningful 

competition and for better ratings. If you go fully to an investorpay model, it is not obvious that the resulting conflicts are going 

to be, on balance, better. 

And so our judgment was, better to have a diversity of payment 

schemes out there. Let us have a level playing field with competition, but on the basis of serious high standards. And let us provide 

information that is given to one agency to all the agencies so that 

there is a chance for them to show that their competitor isn’t good 

at doing a rating. 

Senator MERKLEY. Thank you. That is helpful, and I will have 

my team follow up to try to get a better understanding of the weaknesses of those other possibilities. 

We have in the structured products world very complex CDOs 

and CDO-squared that made it virtually impossible for anyone to 

determine the underlying foundation for what went into a CDOsquared, and by that I mean situations where you had BBB bonds 

that you dedicated 60 percent of the revenue and suddenly you had 

AAA bonds coming out of the BBB portfolio, et cetera. And yet you 

are so far removed from whether they were liar loans, whether the 

loans had been thoroughly vetted in terms of the income of the individual, et cetera—underwritten, if you will. 

So is there a level of complexity that should simply be banned 

in the interest of reducing systemic risk? Is there a level of slicing 

and dicing that gets to where you really cannot create—it is too 

messy, the path is too messy from the buyer back to the foundation 

that essentially they do not make sense to allow in the marketplace? 

Mr. BARR. I think there are ways of getting at the basic problem 

of complexity in alternative strategies than a flat ban. So, for example, the securitization ‘‘skin in the game’’ requirement improved 

transparency in the securitization structure that we have proposed 

requirements with respect to transparency at the loan level for all 

investors in the underlying asset with respect to, say, a borrower 

FICO score, what broker originated the loan, what the compensation scheme was, all of which are designed to get at that set of concerns, and better qualitative and quantitative information underlying the rating on such a structured product would permit investors to go underneath and say, well, the reason that they have assigned this rating is because their view of the cash-flow distribution in the waterfall was this, their loss probability measurement, 

their loss severity measurement is that. And it is a way of unpacking the complexity into its component parts. 

Senator MERKLEY. I appreciate your response. I am picturing 

what that sort of report might have looked like on some of those 

CDO-squared. It may have in itself—— 

Mr. BARR. I would not want to write it. 

Senator MERKLEY. I am over my time, and so thank you very 

much. 
20 

Senator REED [presiding]. Thank you, Senator Merkley. Senator 

Bunning. 

Senator BUNNING. Thank you, Mr. Chairman. 

Secretary Barr, before getting into the subject of today’s hearing, 

I have a question on a different matter. Yesterday, the Wall Street 

Journal had a front-page article about a meeting last Friday where 

Secretary Geithner attacked independent bank regulators for expressing their concern about Treasury’s regulatory reform proposal. 

Were you at that meeting? 

Mr. BARR. Yes. 

Senator BUNNING. If you were, was the article accurate about 

what happened at the meeting? 

Mr. BARR. I do not have the article in front of me, Senator. I 

would say we have an ongoing series of conversations with the financial regulators on a regular basis. We have frank and direct 

conversations with them on a regular basis. 

Senator BUNNING. If I give you the article, would you refresh 

your memory? 

Mr. BARR. I am happy to look at the article. I am trying to describe for you the discussion, if I could. 

Senator BUNNING. All right. Go ahead. 

Mr. BARR. The conversation that we had with them, the Secretary made clear the regulators are free to defend their own agency prerogatives. They are independent agencies. He expected that 

they would. He asked that they keep in mind, as they did that, the 

fundamental goals that we all share to protect consumers, to address systemic risk in our system, to make sure the Government 

had the tools they need to resolve financial firms in a crisis, and 

as they expressed their differences that we work together in the 

areas where we do have agreement. 

We had a long conversation about the important roles of the 

council versus the independent regulators. We had a long discussion about micro prudential versus macro prudential regulation. It 

was the kind of conversation that we have had with them on many 

occasions. 

Senator BUNNING. The same type of discussion from Secretary 

Geithner and you with the regulators that you have had in the 

past. 

Mr. BARR. I will not characterize the exact verbiage that was 

used, but I would say that the frankness of the exchange—— 

Senator BUNNING. We are on television. I do not think you want 

to do that. 

Mr. BARR. Senator, you know, you will not be surprised to learn 

that in Treasury, as occasionally up on the Hill, there is some 

colorful language that is sometimes used. 

Senator BUNNING. I have been accused of that. I understand that 

completely. OK. Let us get to the current thing. Everybody agrees 

that the current rating agency model has failed—I think everybody 

up here does—especially for complex structure products. There also 

seems to be agreement that better competition will improve ratings. How we get better competition is a little more difficult question, but we must break the hold of the top two or three agencies 

if we are going to fix the ratings. 
21 

It seems to me that there are two changes that will go a long 

way to fixing the competition problem. First, we should eliminate 

any regulatory requirements to use rating agencies so that they 

will only be used if they add value. Second, we should require 

issuers to provide the same information about the securities to all 

investors and rating agencies, much like we do for publicly traded 

companies with regulatory FD. That way each agency will be able 

to compete based on the quality of their ratings, and we will break 

the monopoly of the issuer-pay model. 

Let me start first with the first point, that we should eliminate 

all requirements to use rating agencies. Do you agree with that or 

not? 

Mr. BARR. In our judgment, we need to go regulation by regulation. We agree with the basic goal of reducing reliance wherever 

possible. I think we need to go into the specific circumstances of 

how the SEC and the bank agencies and other agencies use the 

ratings. In some contexts, we can go to elimination. In other contexts—— 

Senator BUNNING. You do agree that there is a definite conflict 

of interest presently? 

Mr. BARR. I am sorry. In the rating agency structure? 

Senator BUNNING. When I would go to a rating agency—I am a 

private corporation. I come to a rating agency. I need $200 million 

in bonds. They say, ‘‘Yes, we will do this.’’ They give me a BBB rating, and then they send me a bill for $250,000 for that rating. Don’t 

you think that is a conflict? 

Mr. BARR. I do think there are serious conflicts of interest 

present in the existing model. That is why we require a series of 

steps to reduce the conflicts, disclose the conflicts, manage the conflicts. We strongly agree with your suggestion that an issuer be required to provide information when it gives it to one agency to give 

it to all the credit rating agencies. I think that is a terrific proposal. It is part of our plan. 

Senator BUNNING. Now, about the second point—and I am a little past my time—that all investors and rating agencies should 

have access to the same information about a security so they can 

perform their own analysis of it, do you agree with that? 

Mr. BARR. I think when—— 

Senator BUNNING. You just said that. 

Mr. BARR. I am sorry. Yes, when you give one rating agency the 

information, you should give it to all the other rating agencies as 

a way of enhancing competition. I do think that that is an important part of the plan. 

Senator BUNNING. Do you think that it is absolutely necessary 

for an agency to rate every security or bond that is sold to the public entities? In other words, I am the city of Louisville, I am building an arena, and I apply to the IRS for a portion on it to be tax 

free, and I go to this agency and they say, ‘‘Well, we cannot do 

this.’’ And all of a sudden someone intervenes, and all of a sudden 

they found their ability to do this. And I think that is absolutely 

the wrong way to do business. For, you know, a half-a-million dollars we get $4 million worth of bonds that are 80 percent tax free 

and 15 percent taxable. Do you think that is the right way to run 

the business? 
22 

Mr. BARR. I think there are enormous inefficiencies in our revenue bond system in the United States of which the rating process 

is one, but there are many, many others. 

Senator BUNNING. Thank you. 

Senator REED. Thank you very much, Senator Bunning. 

Senator Schumer is next. He stepped out. Senator Shelby, do you 

have a question? 

Senator SHELBY. I will just—do you believe, Mr. Secretary, that 

eliminating the conflict of interest—it is obvious to me and a lot 

of other people—by the rating agencies where they get paid for rating things, so to speak, and the cozy relationship there is very important in our regulatory overhaul? 

Mr. BARR. I think we have to tackle the conflict of interest headon. I am not sure we can fully eliminate it, but I think we have 

to address it. 

Senator SHELBY. How do we bring back what I thought we all 

benefited for a long time, and that is, securitization of mortgages? 

For years and years—I would not say every mortgage, you know, 

but there was as lot of confidence in the securitization process, and 

the securitization process basically worked. It basically worked. 

Now it is, for all intents and purposes, very small, if not dead. 

How do we do that? Do we do it with covered mortgages? Do we 

do it with stringent ratings and trailing profits like Senator Corker 

alluded to earlier, or what? How do we do this? Because I do not 

know if the money is ever going to flow until we bring some confidence back into securitization. Maybe I am wrong. 

Mr. BARR. Senator Shelby, I think it is a central question. I think 

that, in our judgment, one of the reasons it is so critical to move 

on financial regulatory reform this year is precisely that. I do not 

think we are going to see a revitalization of our securitization markets unless we have a new foundation of regulation that permits 

transparency in the system, restores honesty and integrity to the 

process that was so sorely lacking in the last bit of time. 

So I think that, in our judgment, we need to move quickly on financial regulatory reform. We need to have transparency in the 

securitization structures. We need to improve regulation of credit 

rating agencies building on the 2006 law. We need to make sure 

we take care of the systemic risk problem and consumer protection. 

And we really have to move in a way that it is demonstrable to the 

markets that we are serious about reform. 

Senator SHELBY. Thank you. 

Senator REED. Thank you very much, Senator Shelby. 

Senator Schumer. 

Senator SCHUMER. Thank you. Thank you, Mr. Chairman. I want 

to thank you for holding this hearing. Thanks, Secretary Barr, for 

coming. Thanks, Senator Shelby, for asking that extra question. I 

appreciate it. 

I have a little statement with a little proposal in there, and I am 

going to ask your opinion of it. 

We had hoped, when we passed the Credit Rating Agency Act of 

2006, the reform act of 2006, which required registration and oversight of credit rating agencies, that the rating agencies would be 

one of the cornerstones of strong credit markets. Instead, as has 
23 

been said before, the credit rating agencies turned out to be one of 

the weakest links, and those need to be fixed, as you just said. 

What we found out was that rating systems were filled with conflicts of interest. The worst of these conflicts were that issuers went 

shopping for ratings like they were shopping for used cars. If they 

did not like the answer they heard, they went somewhere else. Because the revenues of the rating agencies grew with the massive 

expansion of the securitization market, the rating agencies had 

every incentive to help issuers structure their products to get the 

ratings they wanted. The result: Rating agencies rubber stamped 

complex products they did not understand as investment grade, 

using flawed analytical models and methodologies with inadequate 

historical data that did not include the possibility of high mortgage 

defaults. 

We cannot overestimate the impact this had on the financial crisis. Losses in structured finance securities alone led to $1.47 trillion in writedowns and losses at the largest financial institutions. 

And Senator Reed, our Chairman here, has introduced a bill on 

credit rating agencies, and the Administration has proposed new 

rules to address some of these conflicts of interest and the inability 

to evaluate ratings. And they are important proposals, but I wonder if the message is getting through. 

Last month, I read an article how Moody’s downgraded—after 

Moody’s downgraded a collateralized debt obligation because the 

default rate of loans in the CDO rose 7 percent. Morgan Stanley 

repackaged it into new securities with AAA ratings. How can you 

get a AAA rating based on a CDO that has just been downgraded 

six levels? Where are the checks in the system? 

That is why I am proposing, in addition to Senator Reed’s bill 

and the Administration’s proposal, which I think are very good, 

that for every ten rated products, the SEC would randomly assign 

a different rating agency, another rating agency to issue a second 

rating. I understand that issuers get two ratings, but this randomly assigned rating agency would act as a check on the first rating agency. 

Furthermore, this check would help discourage ratings shopping 

and other conflicts of interest inherent in the system. We would 

learn who is better at ratings and who is worse and get rid of at 

least the conflicts of interest. I would not want to do it for every 

issue. That is too many, but just a certain amount. We propose one 

out of ten, maybe it should be a little less, a little more, but a significant amount so we get a pool of knowledge. And I think it 

would be prophylactic. If an agency knew that there was a one in 

ten chance when they got paid by the issuer that someone else was 

doing an independent rating, they would be more careful. 

So the ratings are too much a part of our financial system to 

abandon them, but it is clear the system as it exists is broken, and 

I want to look forward to working with Chairman Dodd, Senator 

Reed on his excellent proposal, and the Administration to make 

sure that we can have faith that a AAA rating means what it says. 

So my only question to you, Assistant Secretary, is: What do you 

think of this proposal of having the SEC randomly assigning a second rating agency? That would be done, by the way, concurrently 

with the first and come out at about the same time. 
24 

Mr. BARR. Senator Schumer, thank you for your longstanding 

work in this area. I would say we share the conceptual goal of having more than one agency rate issuance, particularly—it is a particularly acute problem in the structured finance area, but it exists 

elsewhere. 

In our proposal, we suggest that one way to do that consistent 

with the direction of the SEC’s proposal is to require that every 

issuer provide full information about their issuance to all the other 

credit rating agencies as a way of enhancing competition in the rating. There are significant incentives on the competitors to want to 

demonstrate their own prowess in rating in relation to their competitor who has been selected. 

I think that one tradeoff that one might consider with respect to 

an assignment process is whether that assignment might provide 

a kind of seal of approval to the rating that would not be intended, 

it would be counter to the general thrust of what the Committee 

has been trying to do in this area. So that might be a competing 

concern on the other side with mandatory as opposed to competition for the rating. 

Senator SCHUMER. Yes, but, OK, two points I would make. My 

time is up. But, number one, it would be done on a random basis 

and secretly, number one. And the pool would probably be a lot 

greater than just the Big Three. So you would have new entries 

with some incentive to just get it right and get it honest. 

And, second, your proposal, of course, is not mandatory, and simply giving the information, if everyone is in the same boat—and 

just a few of them doing the same practice might prove to have the 

same discouraging effect of sort of paying for a good rating. That 

is what I would say. My time is up, but I would certainly want an 

answer—— 

Mr. BARR. I am happy to work with you. 

Senator SCHUMER. ——to look at that. 

Thank you, Mr. Chairman. 

Senator REED. Thank you, Senator Schumer, and I have conferred with the Ranking Member, and, Mr. Secretary, I think we 

are ready to move to the next panel. Thank you very much. 

Mr. BARR. Thank you so much for your time. 

Senator REED. Thank you. 

I would like to ask the second panel to come forward, please. 

Thank you, gentlemen. Let me introduce the panel and then begin 

to recognize our witnesses. 

Our first witness is Mr. Stephen W. Joynt. He is the President 

and CEO of Fitch Ratings as well as the CEO of Fitch Group, Inc., 

the parent company of Fitch Ratings Algorithmics and Fitch Training. 

Our next witness is Mr. James H. Gellert. He is the President 

and CEO of Rapid Ratings. 

Our next witness is Professor John C. Coffee, Jr., the Adolf A. 

Berle Professor of Law at Columbia University Law School. He has 

testified before this Committee on numerous occasions and has 

been a valuable source of counsel in many different situations. 

Thank you, Professor Coffee. 

Our next witness is Dr. Lawrence J. White. Dr. White is the Arthur E. Imperatore Professor of Economics at New York University 
25 

Stern School of Business, as well as Deputy Chair of the Economics 

Department at Stern. He has served on the senior staff of the 

President’s Council of Economic Advisers and as the Director of the 

Economic Policy Office, Antitrust Division of the United States Department of Justice. Thank you, Doctor. 

Finally, our last witness is Mr. Mark Froeba. Mr. Froeba is the 

principal at PF2 Securities Evaluations, Inc. He has served as senior vice president with Moody’s Derivatives Group and as vice 

president and senior credit officer at Moody’s. Thank you very 

much, Mr. Froeba. 

Mr. Joynt, your testimony, please. Could you turn the microphone on, please, and lean in? 

STATEMENT OF STEPHEN W. JOYNT, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, FITCH RATINGS 

Mr. JOYNT. Thank you, Senator Reed, Senator Shelby, Members 

of the Committee. Thank you for the opportunity to appear at the 

hearing today. I would like to spend a few minutes summarizing 

my prepared statement. 

While overall macroeconomic conditions remain difficult, it seems 

the period of the most intense market stress has passed. This is 

due to both a variety of Government initiatives here and abroad 

aimed at restoring financial market stability as well as actions 

taken by companies individually to shore up their balance sheets 

and reduce risk. 

Having said that, important sectors in the fixed-income markets 

remain effectively closed, and certain asset classes, such as commercial mortgage-backed securities, are experiencing greater performance strain on their underlying assets. 

During this time, the focus of Fitch Ratings has been on implementing a broad range of initiatives that enhance the reliability 

and transparency of our opinions and related analytics. More specifically, our primary focus is on vigorously reviewing our analytical approaches and changing ratings to reflect the current risk 

profile of the securities that we rate. In many cases, that continues 

to generate significant numbers of downgrades in structured securities, but also affects other sectors, such as banks and insurance. 

We are releasing our updated ratings and research transparently 

and publicly, and we are communicating directly with the market 

the latest information and analysis that we have. 

In parallel, we have been introducing a range of new policies and 

procedures—and updating existing ones—to reflect the evolving 

regulatory frameworks within which credit rating agencies operate 

globally. In each of these areas, we have been as transparent as 

possible, broadly engaging with all market participants, including 

policy makers and regulators. I am happy to expand on these topics 

as we proceed. 

That said, the focus of today’s hearing is clearly on where do we 

go forward from here. Senator Reed has introduced a bill, which we 

are happy to speak to. The House held a hearing in May. The SEC, 

I think, considered important new rules at their roundtable discussion in April. There is a Treasury proposal that we will speak 

about, and also outside the U.S., we have been in discussions with 
26 

the EU, and they have recently enacted a registration and oversight system as well that applies to rating agencies. 

As this Committee considers these topics, we would like to offer 

our perspective on several important issues. Let me reiterate that 

we are committed to engaging on all of these matters in a thoughtful, balanced, constructive, and non-self-serving manner. At the 

same time, some perceptions and proposals continue to circulate 

that could use clarification. 

Transparency is a recurring theme of the discussions about rating agencies, and at Fitch, we are committed to being as transparent in everything we do. All of Fitch’s ratings’ supporting rationale and assumptions and related methodologies and a good portion of our research are freely available to the market in real time. 

We do not believe that everyone should agree with all of our opinions, but we are committed to ensuring the market has the opportunity to discuss them. 

Some market participants have noted that limits on the amount 

of information that is disclosed to the market by issuers and underwriters has made the market overreliant on rating agencies, particularly for analysis and evaluation of structured securities. The 

argument follows that the market would benefit if additional information on structured securities were made broadly and readily 

available to all investors, thereby enabling them to have access to 

the same information as mandated rating agencies in developing 

their own thinking and research. 

Fitch fully supports the concept of greater disclosure of such information. We also believe that responsibility for disclosing that information should rest with issuers and underwriters. It is their 

transactions, and they should be disclosing all the pertinent information to all investors. 

A related benefit of additional issuer disclosure is that it addresses the issue of rating shopping. Greater disclosure would enable 

nonmandated NRSROs to issue ratings on structured securities if 

they so choose, providing the market with a greater variety of opinion and an important check on perceived ratings inflation. 

Discussion of additional information is of questionable value 

without accuracy and reliability of the information. That goes to 

this question of due diligence. We have taken, rating agencies, a 

number of steps to increase our assessments of the quality of the 

information that we are provided with, and we have adopted policies that we will not rate issues if we deem the quality of the information to be insufficient. The burden of due diligence, in my opinion, though, belongs with issuers and underwriters. Congress 

should mandate that the SEC enact rules that require issuers and 

underwriters to perform such due diligence and make public their 

findings and enforce the rules that they enact. 

In terms of regulation more broadly, Fitch supports fair and balanced oversight and registration of credit rating agencies and believes the market will benefit from globally consistent rules for 

credit rating agencies that foster transparency, disclosure of ratings and methodologies. We believe that oversight requirements 

should be applied consistently and equally to all NRSROs. 

One theme in the discussion of additional regulation is the desire 

to impose more accountability on rating agencies. While ultimately 
27 

the market imposes accountability for our ratings, for the reliability and performance of our ratings and our research, if the market does not have confidence in us, the value of Fitch’s franchise 

will be diminished. 

While we understand and agree with the notion that we should 

be accountable for what we do, we disagree with the idea that the 

imposition of greater liability will achieve that. Some of the discussion on liability is based on misperceptions. Rating agencies today, 

like accountants and officers and directors and securities analysts, 

may be held liable for securities fraud to the extent rating agencies 

intentionally or recklessly make material misstatements or omissions. 

Beyond the standard of existing securities law that applies to all 

fundamentally, we struggle with the notion of what it is we should 

be liable for. Specifically a credit rating is an opinion about future 

events, and the likelihood of an issuer that he might meet his credit obligations. Imposing a specific liability standard for failing to 

accurately predict the future strikes us as an unwise approach. 

Congress should also consider some practical consequences of imposing additional liability. They were mentioned earlier. Expanded 

competition might be inhibited from smaller agencies, but that may 

be addressed. All rating agencies also may be motivated to just try 

to provide the lowest securities ratings just to mitigate liability, 

which does not encourage accuracy. 

I see I am past my time. 

Senator REED. Thank you very much, Mr. Joynt. 

Let me also say that all your statements will be made part of the 

record, and if you would like to summarize them, that is perfectly 

fine. And the statements of the Members will be made part of the 

record. 

Mr. Gellert, please. 

STATEMENT OF JAMES H. GELLERT, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, RAPID RATINGS INTERNATIONAL, INC. 

Mr. GELLERT. Thank you. Senators, thank you for inviting us to 

join you today. Rapid Ratings is a subscriber-paid firm or otherwise 

known as an investor-paid firm. We utilize a proprietary softwarebased system to rate the financial health of thousands of public 

and private companies and financial institutions quarterly. We use 

only financial statements, no market inputs, no analysts, and have 

no contact in the rating process with issuers, with bankers, or with 

advisers. Our ratings far outperformed the traditional issuer-paid 

rating agencies in innumerable cases such as Enron, GM, Delphi, 

Pilgrim’s Pride, the entire U.S. homebuilding industry, and others. 

Currently, we are not a NRSRO. We have not applied for the 

NRSRO status, and we do not have immediate plans to do so. At 

present, there are too many mixed messages coming from the SEC, 

Treasury, and Congress for me to recommend to our shareholders 

that the designation is in their best interests. 

Of course, the Treasury proposal’s requirement that all ratings 

firms must register is an unwelcomed development. It runs counter 

to the goal of positive change for the industry, not to mention elements of the Credit Rating Agency Reform Act of 2006. 
28 

We do believe that reform in our industry is necessary and must 

happen with a sense of urgency. But we caution that, if not done 

properly, this reform may have counterproductive and unintended 

consequences. 

We also believe that competition in this industry, and the level 

playing field for current and new players, is essential. Equivalent 

disclosure of information is needed. Rules that do not disproportionately penalize small players are needed. An environment where 

the new innovate and where the old can have their behavior modified is needed. All should be primary goals of legislation. 

The SEC has been wrestling with new rules and rule amendments and has made some headway in areas curbing the issuerpaid conflicts. We do not agree with all of the elements of the 

SEC’s initiatives, but the Commission has taken some positive 

steps to stop the more egregious behavior of the issuer-paid agencies. As detailed in my written submission, our views on the new 

Treasury proposal are not quite as balanced. 

Together, the SEC and Treasury initiatives are positively addressing rating shopping, conflict and fee disclosure, transparency 

issues, and are at least flirting with removing the NRSRO designation from SEC regulations. For our complete comment on these, 

again, I would like to refer you to our written submission. 

On the critical side, the recent Treasury proposal, despite its 

positives, threatens to erect more hurdles to competition in this industry, further solidifying the entrenched position held by S&P, 

Moody’s, and Fitch. A few items. 

Methodology disclosure: Rules in the Treasury proposal on transparency of ratings methodology could come dangerously close to 

meaning ratings firms would have no intellectual property protection. 

Ratings disclosure: Requiring subscriber-based rating agencies to 

disclose their history of ratings and ratings actions can undermine 

the subscriber-based business model, which is predicated on selling 

current and past ratings to investors. The Treasury proposal covers 

all types of rating agencies and for 100 percent of their ratings. 

This erects a major barrier for subscriber-paid firms by interfering 

with their revenue model. 

Requiring NRSRO registration: Requiring registration of all companies issuing ratings is perhaps the most counterproductive initiative of all. Not only does forcing registration run counter to the 

2006 Act, it could create a flood of new NRSROs captured by the 

sweeping dragnet. Investors will not have the inclination to look at 

all of these firms and will tend to remain with the providers they 

know best, the Big Three. 

Further, registration would impose all of the increased direct and 

indirect costs on firms that would otherwise choose not to be an 

NRSRO. This will force some out of business, it will create disincentives for new entrants, and it will stifle potential innovation 

and positive competition. 

So the Treasury proposal would require firms to register, subject 

them to high compliance costs, put at risk some firms’ intellectual 

property, and hinder their revenue-generating ability. All in all, 

regulatory protection for S&P, Moody’s, and Fitch, and anything 

but a level playing field. 
29 

The Big Three agencies have lobbied heavily to promote the notion that one-size-fits-all regulation is fair because all business 

models carry conflicts of interest and that theirs is no worse than 

any other. Can conflicts occur in other business models? Sure, theoretically. Have conflicts in subscriber-paid models contributed to 

any financial disasters? No. This red herring cannot drive new legislation. The problem is not the potential behavior of the subscriber-paid rating agencies. Rather, it is the misbehaviors of the 

issuer-paid rating agencies that have already occurred. 

Effective legislation and regulatory framework must focus on reforming the issuer-paid model and the model’s most negative features, providing oversight of the NRSROs that prevent the self-interested behavior that contributed to the current financial crisis 

and creating an even playing field for competition. The latter has 

two major components, fostering, or at least not inhibiting, new 

players, methodologies, and innovation; and equivalent disclosure 

of data used by issuer-paid agencies. 

For true reform to have a fighting chance, these themes must be 

protected by the legislative framework for the ratings industry. We 

must be critically aware of how the unintended consequences of 

poorly implemented regulations can leave us with a broken system 

that has proven it is not so deserving of protection. Innovation and 

responsible alternatives to a status quo have been hallmarks of the 

American financial system. These should be fostered by those looking to return confidence and integrity to this industry. Thank you. 

Senator REED. Thank you very much, Mr. Gellert. I would just 

take the opportunity that your comment about registration of all 

rating agencies is the Treasury proposal, it is not my proposal. 

Mr. GELLERT. Excuse me. 

Senator REED. Just clarifying. 

[Laughter.] 

Mr. GELLERT. Fair enough. 

Senator REED. The privilege of the Chair. Forgive me. 

Mr. GELLERT. Well exercised. 

Senator REED. Professor Coffee. 

STATEMENT OF JOHN C. COFFEE, JR., ADOLF A. BERLE 

PROFESSOR OF LAW, COLUMBIA UNIVERSITY LAW SCHOOL 

Mr. COFFEE. I am honored, Chairman Reed and fellow Members 

of the Committee, to be back before this Committee, but I am in 

the very embarrassing position of having to begin by commending 

and congratulating the Chairman, because what we are looking at 

in the Treasury bill is 95 percent what was in the Reed bill. The 

Reed bill, introduced in April, was substantial, constructive, well 

crafted, and I think it does just about everything that you can do 

through administrative regulation to deal with this problem. 

The problem is, there are dimensions to this whole area that are 

beyond simply administrative regulation and that is what the 

Treasury bill in particular leaves out. Thus, because—there is a 

shortfall, because not all of the provisions in the Reed bill are in 

the Treasury bill and because there needs to be a consideration of 

some issues beyond administrative regulation. I would have to say 

there is a shortfall in the Treasury regulation, and I would have 

to predict that we will see a persistence of the status quo, dysfunc-
30 

tional and perverse as it is, if all we do is what is in the Treasury 

bill. 

In this regard, I think there are two distinctive critical features 

about credit rating agencies which distinguish them from all of the 

other gatekeepers in the financial markets that have to be focused 

on. 

One, credit rating agencies do not perform due diligence. Accountants are bean counters. They go out and count the beans. 

Credit rating agencies give ratings based on hypothetical assumed 

facts, and thus you are getting hypothetical ratings. I think that 

has to be corrected. 

Second, the credit rating agencies today do not face any meaningful risk of liability. Because, as I look at the future, even though 

I wish to encourage the user-pay system, I think the issuer-pays 

model will persist and predominate. There is going to remain a 

built-in conflict of interest, and when you have a built-in conflict 

of interest, the other professions have found that the only thing 

that keeps the professional honest is the threat of litigation. The 

accountants have learned, painfully, how to steer a course between 

acquiescence to the client and maintaining high integrity and litigation is one of the forces that maintains that equilibrium. 

Therefore, based on that diagnosis, what do I think we should 

do? I think the first thing we have to focus on is how to encourage 

third-party due diligence. The Treasury bill does this, largely 

adopting many of your provisions. The problem is that it does this 

by requiring disclosure when you decide to use a third-party due 

diligence firm, and it requires certification by that firm to the SEC. 

That raises the cost of using a third-party due diligence firm and 

I think there would be many underwriters, at least if we get back 

into a bull market at some point in the future, that will simply opt 

not to use the third-party due diligence firm. They did this in the 

past. These due diligence firms were widely employed in the 1990s, 

and as the market grew bubbly, they dropped their use because 

they kept learning disquieting facts that they didn’t want to hear 

about. So you can put in boilerplate disclosure that says, we are 

not using a third-party due diligence firm, and hope that in that 

more favorable market, you can get away with this, and I think 

you probably would be able to get away with this. 

How, then, should we deal with encouraging third-party due diligence? I would suggest that we look here at a different level of regulation. No one has been talking much about regulating the users 

of this information, and the users now are closely regulated by 

rules that I think are over-broad and ill conceived. Let me give you 

one example. 

Rule 2(a)(7) of the SEC under the Investment Company Act tells 

money market funds that they cannot buy securities unless they 

are eligible securities, and to be an eligible security, you have to 

have a requisite rating from an NRSRO rating agency. We could 

deregulate much of that, but many of the users of this information 

do want to rely on an NRSRO rating. They have made that very 

clear to the SEC. 

What I think we should say is that to the extent you choose to 

rely on an NRSRO rating, it has to be a rating that is based upon 

third-party due diligence that verified the essential facts. That 
31 

way, we have at least something that is not illusory, that is not a 

hypothetical rating, and that way—because this rule already exists. 

I am not proposing new rules. I am proposing making the existing 

rule meaningful by making it based on third-party due diligence. 

There are other of these rules, but they are in my statement and 

I won’t take it further. The point in doing this is by focusing on 

the user, we are not regulating the rating agency and that allows 

us to sidestep some arguable constitutional problems about whether we are overly regulating commercial speech. I don’t think we 

are, but we aren’t doing it at all if we regulate the user and say, 

you only get the right to do this if you use one of these techniques 

and you have good due diligence. 

Now, let me move on to this issue of liability because I see the 

business-pays model as persisting. I think we need some risk. In 

10 seconds, let me just say that my proposal is not to open the 

flood gates. It is really your proposal. I think you struck a very sensible compromise, because it doesn’t really increase the likelihood 

of litigated outcomes. 

It simply says, your proposal, your bill in April contains a provision that says if credit rating agencies—they can be found to have 

acted recklessly if they give an opinion, a rating, without conducting some due diligence or receiving due diligence from a thirdparty expert. This does not subject them to liability. It just tells 

them there is one easy, safe strategy for avoiding liability and that 

is to make sure that the underwriter pays for and gives you a 

third-party due diligence report that covers the critical facts in 

your model. 

This will not produce a rash of litigation. It will produce behavior 

that avoids litigation and thus this is another technique to get the 

critical core of due diligence back into the ratings process. 

Thank you. I apologize for overstepping my time. 

Senator REED. Thank you, Professor Coffee. 

Professor White. 

STATEMENT OF LAWRENCE J. WHITE, LEONARD E. 

IMPERATORE PROFESSOR OF ECONOMICS, NEW YORK UNIVERSITY 

Mr. WHITE. Thank you, Mr. Chairman, Members of the Committee. My name is Lawrence J. White. I am a Professor of Economics at the NYU Stern School of Business. During 1986 to 1989, 

I was a board member on the Federal Home Loan Bank Board. 

Thank you for the opportunity to testify today on this important 

topic. 

I have appended to the statement for the Committee a longer 

statement that I delivered at the Securities and Exchange Commission’s roundtable on the credit rating agencies on April 15, 2009, 

which I would like to have incorporated for the record into the 

statement that I am presenting today. 

The three large U.S.-based credit rating agencies—Moody’s, 

Standard and Poor’s, and Fitch—and their excessively optimistic 

ratings of subprime residential mortgage-backed securities in the 

middle years of this decade clearly played a central role in the financial debacle of the past 2 years. Given this context, it is understandable that there would be strong political sentiment, as ex-
32 

pressed in the proposals by the Obama administration as well as 

by others, for more extensive regulation of the credit rating agencies in hopes of forestalling future such debacles. 

The advocates of such regulation want figuratively to grab the 

rating agencies by the lapels, to shake them and shout, ‘‘Do a better job.’’ This urge for greater regulation is understandable, but it 

is misguided and potentially quite harmful. 

The heightened regulation of the rating agencies is likely to discourage entry, rigidify a specified set of structures and procedures, 

and discourage innovation in new ways of gathering and assessing 

information, new technologies, new methodologies, new models, including new business models, some of which have been talked 

about earlier this morning, and it may not even achieve the goal 

of inducing better rating from the agencies. It may well be a fool’s 

errand. Ironically, it will also likely create a new protective barrier 

around the incumbent rating agencies. 

There is a better route. That route starts with a recognition that 

the centrality of the three major rating agencies for the bond information process was mandated by more than 70 years—it goes back 

to the 1930s—of prudential financial regulation of banks and other 

financial institutions, in essence, regulatory reliance on ratings, in 

essence, an outsourcing or delegating of safety judgments to these 

third-party credit rating agencies. 

For example, the prohibition on banks holding speculative bonds, 

as determined by the rating agencies’ ratings, imbued these thirdparty judgments about the creditworthiness of bonds with the force 

of law. This problem was compounded when the SEC created the 

category of Nationally Recognized Statistical Rating Organization, 

NRSRO, in 1975, and then the SEC subsequently became a barrier 

to entry into the rating business. 

As of year-end 2000, there were only three NRSROs: Moody’s, 

Standard and Poor’s, and Fitch. It should thus come as no surprise 

that when this literal handful of rating firms stumbled, and stumbled badly, in their excessively optimistic ratings of the subprime 

residential mortgage-backed securities, the consequences were 

quite serious. 

The recognition of the role of financial regulation enforcing the 

centrality of the major rating agencies then leads to an alternative 

prescription. Eliminate the regulatory reliance on ratings, as Senator Bunning suggested earlier this morning. Eliminate their force 

of law, and bring market forces to bear. 

Since the bond markets are primarily institutional markets, as 

Assistant Secretary Barr mentioned earlier today, and not a retail 

securities market, where retail customers do need more help, market forces can be expected to work, and the detailed regulation that 

has been proposed would be unnecessary. Indeed, if regulatory reliance on ratings were eliminated, the entire NRSRO superstructure 

could be dismantled, and the NRSRO category could be eliminated. 

Now, let us be clear. The regulatory requirements that prudentially regulated financial institutions must maintain safe bond 

portfolios should remain in force. That is terrifically important. But 

the burden should be placed directly on the regulated institutions 

to demonstrate and justify to their regulators that their bond portfolios are safe and appropriate, either by doing the research them-
33 

selves or by relying on third-party advisors who might be the incumbent rating agencies, or might be new firms that none of us 

have discovered yet, but could come forth in this more open environment. 

Since financial institutions could then call upon a wider array of 

sources of advice on the safety of their bond portfolios, the bond information market would be opened to innovation and entry and 

new ideas in ways that have not been possible since the 1930s. 

Now, my longer statement goes into greater detail, but since it 

was done on April 15, before the Obama administration’s proposals 

were proposed, I just want to mention a few things about those 

proposals. I will be very brief, Mr. Chairman. 

Senator REED. Thank you, Professor. 

Mr. WHITE. Again, it is understandable they want to do something, but I think the efforts go in the wrong direction and the dangers are substantial because they are going to raise barriers to 

entry and reduce innovation, reduce the possibility of new ideas. 

Something that is especially dangerous is something that Mr. 

Gellert mentioned a few minutes ago: the requirement that all 

credit rating agencies, whether you are just an independent guy offering some advice to a hedge fund or whether you are a fixed-income analyst at a financial services firm, must register as an 

NRSRO. This strikes me as something that is going to discourage 

entry, discourage those new ideas, and that can’t be a direction we 

want to go. 

So let me just say again that the proposals really are wrongheaded and that we really do have a superior route to go, which 

is a greater reliance on the market for information which an institutional bond market can use and use effectively. 

Thank you for this opportunity, and I will be happy to answer 

any questions. 

Senator REED. Thank you. 

Mr. Froeba. 

STATEMENT OF MARK FROEBA, J.D., PRINCIPAL, PF2 

SECURITIES EVALUATIONS, INC. 

Mr. FROEBA. Senator Reed, Senator Shelby, and Members of the 

Committee, my name is Mark Froeba. Thank you for giving me this 

opportunity to talk about rating agency reform. 

Let me give you a brief summary of my background. I am a 1990 

graduate of the Harvard Law School. Barack Obama was 1 year behind me. What a difference a year makes. 

[Laughter.] 

Mr. FROEBA. In 1997, I left the tax group at Skadden, Arps in 

New York where I had been working in part on structured finance 

securities to join the CDO group at Moody’s and I worked there for 

just over 10 years, all of that time in the CDO group. 

Since the beginning of the subprime crisis, there have been many 

proposals for rating agency reform. Most of them are well intentioned. However, few seem likely to accomplish real reform. Real 

reform, in my opinion, must achieve two clear policy goals. It must 

first prevent another rating-related financial crisis like the 

subprime crisis, and it must also restore investor confidence in the 

quality and reliability of credit ratings. 
34 

In my opinion, the rating agency reform provisions of the Investor Protection Act of 2009 are not sufficient in themselves to accomplish either of these goals. However, the Act’s rulemaking authority 

could be used to expand their effectiveness. 

Why are the reform provisions in themselves, in my opinion, insufficient? First, they are not the product of a complete investigation into what actually happened at the rating agencies. Without 

a proper investigation of what happened, not conducted on a theoretical level or in discussions with senior managers, but with the 

analysts who actually assigned the problem ratings in question, we 

cannot be sure the proposed legislation provides solutions designed 

to fix the problems. 

The best way to illustrate my second reason for questioning the 

sufficiency of this proposal is to ask you a simple question. If the 

Investor Protection Act of 2009 had been enacted just as it is 5 

years ago, do you think it would have prevented the subprime crisis? In my opinion, the answer to this question is no. That does not 

mean that the proposals are bad, it just means that they do not 

advance what should be the central policy goal of reform, preventing a future crisis. 

If these proposals are uncertain to prevent a future crisis and restore confidence in credit ratings, what reforms could achieve these 

goals? I have, you will not be surprised to hear, six proposals, and 

I am going to speak really fast or skip some. 

First, put a firewall around rating analysis. The agencies have 

already separated their rating and nonrating businesses. This is 

fine, but not enough. The agencies must also separate the rating 

business from rating analysis. Investors need to believe that rating 

analysis generates a pure opinion about credit quality, not one 

even potentially influenced by business goals, like building market 

share. Even if business goals have never corrupted a single rating, 

the potential for corruption demands a complete separation of rating analysis from bottom-line analysis. 

Investors should see that rating analysis is kept safe from interference by any agenda other than getting the answer right, and the 

best reform proposal will exclude business managers from involvement in any aspect of rating analysis and critically also from any 

role in decisions about analyst pay, performance, or promotions. 

Second, prohibit employee stock ownership and change the way 

rating analysts are compensated. There is a reason why we don’t 

want judges to have a stake in the matters before them, and it is 

not just to make sure judges are fair. We do this so litigants have 

confidence in the system and trust its results. We do this even if 

some or all judges could decide cases fairly without such a rule. 

The same should be true for ratings. Even if employee stock ownership has never actually affected a single rating, it provokes doubt 

that the ratings are disinterested and undermines investor confidence. Investors should have no cause to question whether the interests of rating agency employees align more closely with agency 

shareholders than investors. Reform should ban all forms of employee stock ownership, direct and indirect, by anyone involved in 

rating analysis. 

The same concerns arise with respect to annual bonus compensation and 401(k) contributions. As long as these forms of compensa-
35 

tion are allowed to be based upon how well the company performs 

and are not limited to how well the analyst performs, there will always be doubts about how the rating analyst’s interests align. 

Third, create a remedy for unreasonably bad ratings. Essentially, 

expand the liability of the agencies. I am going to skip my discussion of that because some of that discussion has already occurred. 

My fourth proposal is to change the antitrust laws so agencies 

can cooperate on standards. When rating agencies compete over 

rating standards, everybody loses. Giving them the capacity to get 

together to talk about rating standards may expand our ability to 

prevent the kind of problems that we have had. Imagine how different the world would be today if the agencies could have joined 

forces 3 years ago to refuse to securitize the worst of the subprime 

mortgages. 

My other proposals are to create an independent professional organization for rating analysts, and also to introduce investor-pay 

incentives into the issuer-pay framework, neither of which I have 

time to discuss, but they are described in my statement. Thank 

you. 

Senator REED. Thank you very much, Mr. Froeba. 

Thank you all. This has been a very, I think, informative panel. 

Let me pose a question to all the panel members. I think I know 

Dr. White’s answer. 

[Laughter.] 

Senator REED. The Investor Working Group chaired by former 

SEC Chairman Donaldson and Arthur Levitt has recommended 

that myriad statutes and rules that require a certain investor to 

hold only securities with specific ratings should be eliminated over 

time to clarify that reliance on a rating does not satisfy due diligence efforts. I think Secretary Barr suggested that in one of his 

responses, and this is an issue, frankly, that Senator Bunning has 

raised directly, which is the reliance on these ratings, and the Secretary suggests that on a case by case, they were going to walk 

through the statutes. Just your reaction, Mr. Joynt, and down the 

line. 

Mr. JOYNT. So this has come up in the SEC hearings, as well, 

and my response there, the same response today, which is I think 

it is healthy to go back and look at each of the regulations individually. I think it would not be helpful to have some kind of a blanket dismissal of all uses of ratings and regulations. 

I think, and I have been around a long time, I can think of why 

some of those ratings were put into regulation and they were for 

positive and constructive reasons, to try to limit risk and to be used 

as handy benchmarks for other regulators and boards of directors 

and other things. But to not go back and look at them, I think is 

a mistake. To look at them may help eliminate some of the use of 

ratings in regulation or even update them, because ratings have 

changed over time. They don’t necessarily all mean the same things 

to all the same people. 

I still believe, though, that if ratings were eliminated in regulation, they will be often and frequently used by many institutional 

investors, boards of directors, and investors, because I believe they 

have value independent of whether they are forced to be used by 

regulation. 
36 

Senator REED. Thank you. 

Mr. Gellert. 

Mr. GELLERT. I think looking at removing the NRSRO designation and regulations is actually quite a good idea. I agree that they 

can’t all just be stripped out immediately because that can be disruptive, but looked at in a methodical way relatively expeditiously 

is probably a benefit. I think the Treasury plan calls for a 30- 

month review of this. I think that is probably a bit more time than 

anyone really needs to get started or at least to be able to make 

the statement that this is a road we are marching down. 

But I would point out that it is not just that there is a tendency 

for institutional investors to overrely, or a potential for them to 

overrely and essentially outsource their own credit work. It presents an opportunity to arbitrage the system, because a security 

that meets a certain standard by their regulatory oversight but has 

a higher yield, as we saw during this crisis, is something that they 

can buy and will buy because it is beneficial to them for returns. 

So, in a handful of ways, it can be complicated, but I do think it 

is a good initiative. 

Senator REED. Professor Coffee. 

Mr. COFFEE. I was sort of discussing this in my remarks, because 

I gave you the example of Rule 2(a)(7), which says money market 

funds, you can only buy eligible securities and they have to have 

an investment-grade rating from an NRSRO. I would change that. 

I would change it in the following way. I would not wholly abolish 

the rule, because we can’t dare deregulate all money market funds 

that came this close to failure last fall. There have to be some restrictions. Professor White also, I think, agreed with that. 

I would give institutional investors—— 

Mr. WHITE. There you are, putting words in my mouth again, 

Jack. 

[Laughter.] 

Mr. COFFEE. Anyway, I would give institutional investors a 

choice. They could do it themselves. They could say, we are going 

to conduct our own due diligence and we will have our own prudent 

man fiduciary obligations when we do that, or we can rely on a 

credit rating, but only a credit rating that is supported by due diligence so that the critical facts on which the model relies have been 

verified by someone who is a professional. 

I know what will happen if given this choice. All of the smaller 

institutions would prefer to rely on the rating agency because the 

SEC proposed this last fall, and when they proposed this, they 

nearly got assaulted with pitchforks by the institutional investor 

community, which said, we don’t want to take personal liability. 

But I think they should have the choice. 

I think to encourage competition, we should say, you can do your 

own form of due diligence, but you have greater legal responsibility 

if you do it yourself, or you can rely on those NRSRO ratings which 

are supported by legitimate verification. Given that choice, I think 

the world will be better off and I think it would encourage some 

competition. 

Senator REED. Professor White, I think I know where you come 

down on the big issue, but let me pose a slightly different question, 
37 

and if my time runs out, we will do a second round, but I want to 

recognize Ranking Member Shelby. 

There is an economic, I think, advantage, particularly for a small 

entity, that the Treasurer of Pawtucket, Rhode Island, who wants 

to make an investment, to have something that is shorthand, you 

know, triple-A, A-minus, et cetera, and I would think systemically 

and throughout the economy that the rating agencies have provided some value over time. It is not just a complete sort of desert 

out there. 

So just the issue of—I mean, I think the approach is sort of sequentially looking where we can change, and then a final point 

tying into what Professor Coffee said is that even if we eliminate 

the requirements, the presumption would be that issuers would 

still probably be paying and that, given the choice, most people 

would go to the rating agencies. So just your quick comment on 

that. 

Mr. WHITE. All right. Thank you, Senator. First, you know, your 

larger issue, the larger question you asked about should we strip 

out the regulatory reliance on ratings, and my short answer is, as 

my grandmother would have said, from your lips to God’s ear, or 

perhaps President Obama’s ear. 

But let me now address the issue you just raised. When I advocate eliminating regulatory reliance, first, it can’t be done overnight. That is right. Of course, you need notice and comment, et 

cetera. But also, it would be replaced by placing the direct burden 

on the bond manager at a bank, at a pension fund, at a money 

market mutual fund, to justify the safety of his or her bond portfolio. That is terrifically important. 

And the bond manager justifies the safety of the bond portfolio 

to the regulator either by doing the research him or herself, but not 

everybody is going to be able to do that, especially the smaller institution, or relying on an advisor. The advisor could be one of the 

incumbent rating firms. It might be a paid consultant. It might be 

a special advisory firm that comes into the market. Of course, that 

reliance ought to be approved by the regulator, but you open up the 

process. 

Now, those money market mutual fund responses to the SEC’s 

proposals, ah, they were bleating and saying, oh, not us. Not us. 

We couldn’t do the research ourselves. OK, fine. You can’t do the 

research yourself, but if you don’t even have the expertise to be 

able to figure out who is a reliable advisor and who is not, you 

shouldn’t be running a bond fund in the first place and the SEC 

ought to use its regulatory powers to remove somebody who does 

not have the expertise even to figure out who is a reliable advisor 

or who is not. Again, this is an institutional market. It is not a retail market. 

Senator REED. Thank you, Mr. Froeba. I have a question, but it 

will be in the second round. Thank you. 

Senator Shelby. 

Senator SHELBY. Thank you, Mr. Chairman. 

Mr. Joynt, one of the issues that was identified by the SEC staff 

in last year’s report on credit rating agencies was that the growth 

and complexity of complex structured products overwhelmed the 

rating agencies. What steps have you taken to ensure that the next 
38 

complex product—and there will be some—that is sold in the financial markets does not outpace perhaps your firm’s analytic capabilities in the way that the CDOs and the CLOs did? 

Mr. JOYNT. A complex question, but in today’s market environment, there is very little in the way of new complex instruments 

being issued. So in some way we have sort of a time to reassess. 

Some of the most complex instruments in the markets, CDOsquared and CPDOs, I think we took almost 6 months to analyze 

CPDOs before deciding that we could not rate them with our highest rating, and that was a very difficult process of analysts, modelers, and experienced people with judgment trying to think about 

the subjective aspects of the risk. 

It was mentioned earlier ratings have reflected the probability of 

loss, but some of these products where it was more important to 

think about the severity of the loss, how much you might lose when 

they go bad, and ratings were not and had not and have not been 

structured to address that, and maybe they need to be. We are 

working on that now as well. 

So I would say we have a healthy degree of skepticism about the 

complexity of the instruments. Today we have been asked to rate 

some resecuritizations that were mentioned earlier as well. We 

have only been willing to rate one class of security rather than 

tranche securities because in the tranching process they are creating strips that, if the probability of loss is wrong, you will have 

great severity. So we are uncomfortable assigning ratings of that 

type today. 

So today I would say we are pausing and reassessing how we do 

the analysis and what the ratings mean. 

Senator SHELBY. OK. Professor White, you pointed out that credit rating agencies include disclaimers with their ratings, telling 

users not to rely on credit rating agencies in making investment 

decisions. Likewise, the SEC has directed money market funds not 

to rely solely on ratings by Nationally Recognized Statistical Rating 

Organizations in making their investment decisions. 

Does the fact that regulations require ratings send a signal that 

contradicts these disclaimers? 

Mr. WHITE. It sure sounds and looks like a contradiction to me. 

On the one hand, you have regulations that say pay attention to 

the ratings, and on the other hand, you have the kind of disclaimer—I will quote it directly. This is the S&P disclaimer. ‘‘Any 

user of the information contained herein should not rely on any 

credit rating or other opinion contained herein in making any investment decision.’’ 

Senator SHELBY. Well, why do you want them then if—— 

Mr. WHITE. Well, I do not know whether to laugh or cry, and 

that is why I would step away, and say ‘‘do not rely.’’ If you want 

to voluntarily do so, fine, and you get to decide. Since you are an 

institutional investor, you have some memory, you have some judgment. You can figure out who has been the reliable provider of information, and who has not; who has the business model that you 

can trust and who, oh, I am not so sure. 

That is something that institutional investors should be expected 

to be able to do. 
39 

Senator SHELBY. Professor Coffee, do you have a comment on 

that? 

Mr. COFFEE. Well, my great fear is that the status quo will persist, and the way in which it is most likely to persist is if we deregulate some of these rules, what we will get is most institutional 

investors continue to rely on NRSRO ratings, figuring that is the 

safest if they ever were to get sued. 

What I think we should do simultaneously is give them more options. Let them do it themselves or go to consultants. But to the 

extent that they are relying on the NRSRO alternative, we should 

upgrade that alternative by insisting on due diligence so it is not 

an illusory opinion. That way you give them more options, but they 

are higher-quality options. 

Senator SHELBY. Professor White, Mr. Joynt defends ratings as 

a common, independent risk benchmark that should be retained in 

regulations. Do the failures of the rating agencies over the last several years call into question their value as a benchmark? 

Mr. WHITE. Even the executives of the ratings agencies acknowledge they made mistakes, they stumbled badly. So certainly over 

the past few years, they have not been very good. 

Quite honestly, I am agnostic about the whole issue of what business model, whether it is investor pay or issuer pay, is the right 

model. I think that is something that the institutional bond investor can figure out. 

It is important to remember that the issuer-pay model had been 

around for 30 years, from the early 1970s, and really there had not 

been major problems. 

Senator SHELBY. What happened? 

Mr. WHITE. And then comes the whole structured finance market 

where there are only a handful of issuers, only a handful of 

NRSROs that the issuers can go to. The money is very good, and 

they stumbled, they succumbed. They got careless. 

Senator SHELBY. Greed? 

Mr. WHITE. Greed was there all the time. But there was concern 

about reputation before, and somehow that got swamped. The 

model failed this time around. But it worked for 30 years. That is 

why I am agnostic. This is something that institutional participants can figure out on their own, with oversight by the prudential 

regulators to make sure that at the end of the day they have safe 

and sound bond portfolios. 

Senator SHELBY. Is it possible that ratings for certain instruments, such as more traditional bonds we have talked about, have 

a greater value as benchmarks than ratings provided for more complex and newer structured products, such as CDOs and CLOs? 

Mr. WHITE. They are clearly simpler to rate. The entities are 

more transparent, and the problems were fewer. So, yes, certainly 

the history tells us they were better benchmarks. 

Senator SHELBY. Mr. Gellert, I have a question for you. You note 

that the inclusion of ratings in regulations, quote, your language, 

‘‘has given the Big Three a de facto legal and statutory power over 

many institutional investors and other financial institutions.’’ You 

recommend that references be removed from regulations. We have 

been getting into this. 
40 

Do you believe that the Government’s removal of ratings from its 

regulations would create incentives for the private sector to conduct 

better or greater due diligence? 

Mr. GELLERT. I think it absolutely will. Just outside of the legal 

liability issue, there will be the marketing issues and the investor 

reporting issues for these institutions, because the focus will come 

on them to understand better what types of credit work they are 

doing internally. This ability to arbitrage the system would go 

away to some extent. But there is no question that by embedding, 

really the Big Three’s, but the NRSROs in various regulations 

gives them undue power over the investment decisions and risk 

management decisions of the institutional investor community. 

Senator SHELBY. How do we bring securitization back? How do 

we do this? I mean, it is based on trust, and maybe it is a brick 

at a time. But it worked so well for so long. Professor Coffee, do 

you have a comment? 

Mr. COFFEE. I think this is a case where innovation was corrupted. We had a much simpler kind of asset-backed securitization 

in the 1990s—— 

Senator SHELBY. And it worked, didn’t it? 

Mr. COFFEE. It worked better when it was simpler. Once we 

started bringing in the CDO-squared, no one could understand it. 

And if there is one rule I would suggest to you, it is that if it is 

too opaque to be understood, it really should not be issued. And I 

think the market is going to insist on that. We will probably have 

simpler kinds of asset-backed securitizations which are more credible and which the rating agency can more credibly signal and sample the quality of the underlying collateral. Otherwise, we will see 

frozen housing finance—— 

Senator SHELBY. Without that, there is no trust out there, is 

there? 

Mr. COFFEE. There is no trust because everyone can see that no 

one understands this, including the rating agency. 

Senator SHELBY. Thank you, Mr. Chairman. 

Senator REED. Thank you, Senator Shelby. 

Senator Corker. 

Senator CORKER. Thank you, Mr. Chairman, and I thank each of 

you for your testimony. I really think it has been most enlightening. I think each of you have shed a little different light on the 

issue, and I really appreciate that, especially on this issue. 

Mr. Joynt, you probably deserve a badge of courage in showing 

up. I want to thank you for that. And I also want to thank you for 

taking time in your offices to walk through the issue with us. I 

know that in a market economy this has affected you guys 

downwardly. I know a lot of employees have left the firm as a result just to less work, and I know this is not a good time for rating 

agencies. But I want to ask this question. 

If you listened, I think we were all sort of shocked that there was 

no due diligence really performed, and I think each person has alluded to that in a different way. What is the value proposition that 

the credit agencies, the three large ones, provide the public? 

Mr. JOYNT. So the dialogue about due diligence, if we focus on 

corporate issuers, I think if you think about the rating agencies 

that have recently started up or become NRSROs, almost all of 
41 

them are focused on corporate issuers. None are focused on structured finance, Realpoint only on CMBS. I think that is because 

there is disclosure of good information; they are able to do ratings 

and get investors to pay. They do not need any special information. 

So that is the process I think about when I think about 

securitization and structured finance as well. There should be 

enough public disclosure for many rating agencies, and investors 

also, to be able to use the public information, that it should be reputable, that an issuer and/or his banker has put together as a part 

of arranging a financing. And so I see them as having the due diligence. 

The function of the rating agency, Fitch’s rating agency, is to 

analyze that information, think forward about the potential risk of 

default and ramifications for investors, and try to order that for investors through our rating system, and then publish our research 

that tells them all the factors. 

I think that function—which allows many investors that cannot 

analyze the wide variety of financings that we can because we have 

a staff of 1,900 people—and I think that provides a valuable function. So it should not be the only thing that investors should be 

looking at. I certainly agree with the idea that investors are responsible for their own analysis. 

Senator CORKER. So one of the things we talked about in your 

office was really to focus on the toxic asset issue, which has kind 

of come and gone, but how do you actually value those? That is 

where we spent most of our time. And you guys shared with me 

that you could tell by zip codes what the default rates were going 

to be and all of those kinds of things. 

So moving away from the corporate side and looking at the CDOs 

and these other instruments we are talking about, those kind of 

things were not done on the other hand when you rated these particular securities. Is that correct? 

Mr. JOYNT. No. For mortgage-backed securities, that is the kind 

of analysis we would do. We would not go out and verify the individual loan information provided in the package. But in looking at 

the history and frequency of defaults and severities and problems, 

we could do that as a part of our modeling. 

Unfortunately, the history is not representative of what was 

going to happen and has subsequently happened. 

Senator CORKER. But on those, then, understanding that you 

look at corporate financial statements and those kind of things, but 

on these other types of asset-backed securities, it is hard to understand, in fairness, what the value proposition is that you offer if 

they are not really being offered by a company and you are not actually going out and checking the parts of the country that they are 

being offered from. It is hard to understand that there is really any 

value proposition that is being offered by the credit rating agency. 

Mr. JOYNT. I do not see it that way, so I think originators and 

servicers put together financial packages and package them into 

transactions that we can look at the companies, the origination, the 

servicer, the accounting firm that signed off on their financials, and 

try to think about whether those are representative of what is 

being presented and then analyze that compared to the history and 

what we would project the losses to be. 
42 

Senator CORKER. So it is really more—the companies, of course, 

have no skin in the game. They are out of there after it is done, 

mostly. I know some of them have kept pieces, but the companies— 

so when you look at the companies, they are not standing behind 

it like might be the case with a covered bond. So—— 

Mr. JOYNT. That is true. 

Senator CORKER. OK. 

Mr. JOYNT. But I do not think they are not—it has not been my 

experience, although we have had quite bad experience that some 

of the large important financial institutions doing securitizations 

are not appreciative of the fact that their name is on the 

securitization if they would have originated the product. And so I 

think they are quite involved and/or are servicing the product. So 

I believe they have—not all firms, and some firms, of course, have 

entirely disappeared, so obviously they were doing quite a poor job 

and either did not care about their reputation or just failed. 

Senator CORKER. Mr. Chairman, I am going to ask one more 

question if that is OK. 

We are going to miss Senator Bunning in about a year-and-ahalf. 

[Laughter.] 

Senator BUNNING. What makes you think I will be missed? 

Senator CORKER. I am going to miss you. 

The whole issue, I think one of the things that we have talked 

about some in the past is the business model, and that is that in 

the event you actually had to do due diligence and have these 

third-party efforts take place—which, by the way, I think should 

have to happen if somebody is going to rely upon it. But, in essence, it would really price you ought to the market in a way, 

would it not? Would you speak to that a little bit? And if you had 

to really do due diligence and you had to really know what was in 

that package, you could not charge the fee that you now charge and 

make any money. And I think you alluded to that in our conversations that that would be very problematic. 

Mr. JOYNT. Well, we are not staffed in that way to go audit or 

check every one of the loan packages put together on every single 

family loan that would go into a financing. So we are not staffed 

that was at all. We are not staffed with a national network of auditors or even a system of local auditors. So that is certainly true. 

For CMBS, it is a little bit different where we have been able to 

send analysts to look at large properties. We are still not conducting what—I am very careful about this word ‘‘due diligence’’ 

around lawyers, because I am not a lawyer, but we certainly conduct an amount of diligent investigation into what we are looking 

at for individual properties in commercial real estate. But for consumer assets, broadly spread, we have used a more actuarial approach, assuming that the facts in the files are correct. 

Senator CORKER. And everyone on the panel agrees that there 

should be no regulatory mandate to have to use, even State government, city government, any type of government entity should not 

be mandated to have to have a rating to buy a security. Does everyone agree with that? Everybody agrees with—— 

Mr. COFFEE. I think that there could be other options. 
43 

Senator CORKER. But we should not build in having to use credit 

rating agencies and automatically causing people to believe that 

some work was actually done, due diligence-wise? 

Mr. COFFEE. I think that what some of us are saying is that you 

could certainly have alternatives that did not involve the use of an 

NRSRO agency. But to the extent that there already is this 

reputational capital out there in the public’s mind and they are 

going to want you to have an NRSRO rating, some of us want to 

make that real and not illusory by insisting on due diligence. And 

that due diligence, to answer your earlier question, would probably 

be paid for by the underwriters. If the underwriters could get this 

market jump-started again, they would be happy to pay the cost of 

due diligence. 

Senator CORKER. Thank you all. I appreciate it. 

Senator REED. Thank you, Senator Corker. 

Senator Bunning. 

Senator BUNNING. Thank you. Five minutes turns into 10 in a 

big hurry up here, and that is the only reason—since some of us 

have another meeting to go to. 

This is for anyone who would like to answer it. During the housing boom—the boom—rating agencies rated mortgage-backed securities without verifying any of the information about the mortgages. If they had, maybe they would have detected some of the 

fraud and bad lending practices. 

Do you think rating agencies should be required to verify the information provided to them by the issuer? And I am going to give 

you a caveat. The first mortgage that I ever took, I had to take 

three of my Federal tax returns in with me to verify that I had the 

income that I wrote on my application. You do not have to do any 

of those things right now, and I am asking if you think we ought 

to have a little more verification of what is on the list that the person who is looking for the mortgage at the time—and that is how 

we got into all this mischief with mortgage-backed securities being 

sold into the market without any verification, even though they 

were AAA rated. 

Mr. COFFEE. Let me say you are right, Senator. You probably 

wanted to hear that. You are right. And I have some charts in my 

statement that show that the percentage of liar loans, no-document 

and low-document loans, in subprime mortgages went from in the 

year 2001 about 28 percent to the year 2006 about 51 percent. That 

is a very sharp jump, and no one noticed because no one really 

wanted to look. The loan originators had no interest because they 

got rid of the entire loan. 

Senator BUNNING. But the Federal Reserve was responsible for 

overseeing the banks that made those loans, and/or the mortgage 

brokers, we gave that power to the Fed and just because they did 

not write any regulations, we ran into all this mischief. And so the 

housing bubble and the bursting of it was caused by some not 

doing their homework. 

Mr. COFFEE. Again, you are right, Senator. 

Senator BUNNING. Well, I do not want to be right, because we are 

in a hell of a mess. If we were to require issuers to disclose information to all rating agencies, should that disclosure apply to secu-
44 

rities that have already been rated so that we can get more opinions on the toxic securities already in the system? Please. 

Mr. GELLERT. The short answer is yes. The percentage of new 

issues, particularly in the structured business now, is infinitesimal 

compared to what is outstanding and on people’s books. So back to 

your prior questions of how do we get the securitization market 

moving again, we have to be able to provide to the market greater 

insight into what is already out there. And to just provide the detailed due diligence information and supporting information of 

structured products that come to market today is insufficient. 

And I would just add that one of the areas that gets short shrift 

when we discuss structured products is the collateralized loan obligation asset class. It is equally if not more important than the 

CDOs and other securitized, or structured products, and the information availability is much smaller. And it is much more tightly 

controlled by the rating agencies that currently do rate—— 

Senator BUNNING. I only have 5 minutes. I am not trying to cut 

you off, but I want to ask—because do you think—this is a question 

for anybody. Do you think the rating agencies should be able to be 

sued for errors in their ratings? 

Mr. COFFEE. Because I am probably the one most associated with 

saying there has to be some litigation remedy, let me say I do not 

think it should go that far. I do not think there should be a cause 

of action for negligence. I do not think misjudgments should 

produce litigation. I think it should be for being reckless. And when 

you give a rating with knowing any facts at all, then it is reckless. 

Senator BUNNING. Well, then, that is a cause of—— 

Mr. COFFEE. I think you went beyond that and said should you 

just be sued because you made a misjudgment. 

Senator BUNNING. No, no. If you find negligence, then there is 

a cause of action. 

Mr. COFFEE. Well, not under the Federal securities laws, and I 

do not think we should try to increase anything in Federal law that 

would create a negligence-based cause of action against the rating 

agencies. 

Senator BUNNING. OK. Then, how about this question: Do you 

think that issuers who relied on flawed ratings to sell their product 

should be able to be sued for using those flawed ratings? 

Mr. COFFEE. I think they are going to be sued directly because 

they made fraudulent misstatements, and that is how they are 

being sued. I do not think—I think the plaintiffs’ bar regards the 

rating agencies as a possible additional party to throw in, but they 

have very modest expectations of what they can get from them, and 

they have not gotten any significant settlements. 

Senator BUNNING. Well, the question—I am over time. Thank 

you. 

Senator REED. If you want to take some more time? 

Senator BUNNING. Well, the only thing I wanted to ask is if here 

we have a situation where they were not given enough information 

or they did not investigate far enough with the mortgage-backed 

securities, and they accepted the fact that these were legitimate 

mortgage-backed securities by the banks, then I see where they 

would not be held responsible. But if they did not go into the de-
45 

tails of what kind of mortgages they were selling or were being 

sold, then I think they should be held responsible. 

Mr. COFFEE. And I think that is the line between negligence and 

recklessness. 

Senator BUNNING. Thank you. Thank you very much. 

Senator REED. Thank you, Senator Bunning. 

Mr. Froeba, again, thank you for your testimony but also for your 

insights, because you actually were sort of there in the middle of 

this while at an opportune level, not at the top, not at the bottom, 

but right where the work was being done. 

You mentioned of your six proposals—you suggested the test, and 

it is interesting test: Would it avert the problems we saw? And you 

have suggested that the proposals before us will not accomplish 

that. Of those six, what is the most critical thing that from your 

view we would have to—or one or two that we would have to incorporate in our reforms? 

Mr. FROEBA. In some ways, the most important would be the 

hardest to implement, and that is the idea that you separate the 

analytical function from the management function. Just as in the 

court system or at a university, you want your professors, you want 

your judges to be independent of the people who are sort of managing the process. At the rating agency, you want the analysis to 

be independent of the business decisions. And I think that is probably the key, also the most difficult. 

Another really important one is affecting the way analysts are 

paid. I think analysts should not be—their pay, their compensation, 

their reward should not have anything to do with how the company 

does, because the best answer from the analysts may impact company revenue negatively. You want to encourage them to give that 

negative answer despite the impact it may have to their own financial situation. So those two are important. I think expanding liability is key. 

And, finally, the one that is probably, forgive me for saying it so 

informally—the weirdest proposal is that the rating agencies be allowed to cooperate. If the rating agencies had gotten together 5 

years ago and said we are not going to allow for the securitization 

of liar loans, if they had been able to get together and agree that 

they were all going to do that and they would not feel undercut by 

the competitors, I think we would have seen much of this subprime 

crisis averted. 

Senator REED. Thank you. 

Professor Coffee, I just wanted to follow up on Senator Bunning’s 

line of questioning about liability. As you pointed out, the standard 

for liability under the securities laws is essentially recklessness, it 

is a very—— 

Mr. COFFEE. ‘‘Extreme recklessness.’’ 

Senator REED. ‘‘Extreme recklessness.’’ It is a very high threshold, as it should be. The proposal I have made is not to change that 

liability standard but to change explicitly the pleading standard. 

And I wanted you to—if that is your understanding since you have 

looked at the legislation, if that is the case. And, also, the rationale 

is that until you get to discovery, it is awful hard to understand 

what was done on a factual basis, and just your comments on that. 
46 

Mr. COFFEE. I agree with what you are saying, and I think it is 

a sound proposal. I also think that it will produce very few litigated 

losses for the credit rating agencies because you give them in your 

statute a kind of safe harbor. If they get independent due diligence 

done by a professional, they are going to be safe. So it tells them 

they can avoid litigation if they do what we want them to do, which 

is bring in due diligence. But everything you said is correct. 

Senator REED. Let me, another point, too, and I think it is important, because we specifically point out that their ratings would not 

be considered a forward-looking statement for purposes of Section 

21(e) of the Securities Act, which is the same protection we give to 

accountants, et cetera. That is, I think, important because without 

that they are a liability for ‘‘projecting the future forecasting’’ 

would be, I think, inordinate. Is that another point you would—— 

Mr. COFFEE. I agree with that, too, because we are really talking 

about historical information. If you knew, or should have known if 

you had looked, that half these mortgages were already in default, 

that is not forward-looking. That is really historical facts. 

Senator REED. Secretary Barr suggested one issue, which would 

be suits by corporate issuers against a rating agency for a downgrade. And I guess the question—that was one reason why he suggested the Administration has not incorporated this proposal. Let 

me link two questions together. How likely is that, or your comments on that? But, second, you know, one of the issues, I think, 

in response to the exchange with Mr. Gellert was this notion of 

there are a lot of mortgage-backed securities out there, we should 

share the information with the rating agencies. I would think that 

the accountants who have to certify would have a responsibility at 

this juncture to do exactly what the rating agencies might be able 

to do, which is to go in there and say, ‘‘My God, none of these loans 

are paying,’’ and we have to mark down this item. 

So two comments to that, and then, Mr. Gellert, you can comment. 

Mr. COFFEE. Well, let me say on the first point, which is the litigation question about the corporate issuer, I know a lot about this 

kind of litigation. Those suits were originally brought as defamation suits, and they all lost. And that is when courts started talking about the First Amendment because defamation triggers the 

First Amendment. None of those suits have won at all. And in the 

securities law area, there are other problems. The issuer did not 

purchase or sell. It does not have 10(b)-5 standing. And the issuer 

did not really rely on this because the issuer knows more about 

itself than anyone else, so it cannot say it was misled by the rating. 

That is, I think, a phantom fear that issuers will be able to sue 

rating agencies, but if you are concerned about it, you can expressly deal with that and make sure the statute does not apply 

to them. 

Senator REED. Mr. Gellert, just a quick point about the accountants. Maybe I am imprecise in my analysis, but shouldn’t they 

have a responsibility now if it is publicly traded, if the bank is 

holding this mortgage-backed security and it is underwater, don’t 

they have to write it down? 

Mr. GELLERT. Responsibilities of accountants, sir, are well beyond my expertise. 
47 

Senator REED. OK. That is fair. 

Mr. GELLERT. And certainly have been well covered over the past 

years. I certainly understand the point, and I certainly believe that 

the more information that is available, the more parties can be involved in opining, and that may extend and possibly should extend 

beyond those who are in, these intermediary roles and should extend all the way to the institutional investors who ultimately are 

making decisions and buying these instruments. 

Senator REED. That is a fair point. Thank you. Thank you all. 

Senator Corker, do you have a question? 

Senator CORKER. Yes, sir. I again thank all of your for your testimony. Mr. Joynt, back to you again. 

There has been some discussion about changing the compensation, and, by the way, I want you to know I am one of those that 

is slow to sort of mandate how we do those kind of things. But just 

going to the business model side of it, is that something that is farfetched? Or do you think any of the credit rating agencies have 

thought, well, you know, we will take a bigger fee, but we will take 

it over time based on performance? Has any of that had any kind 

of serious discussion at all at your company level or, to your knowledge, Standard & Poor or others? 

Mr. JOYNT. So the best discussion about that I think was at the 

SEC hearing, and then maybe in subsequent conversations where 

they are trying to think about a better or different payment model. 

It is very difficult for me and our firm to think about how we would 

adopt a separate kind of payment or fee structure without having 

it coordinated with others, so it would be quite problematic. 

You might not realize, but today, when we rate structured 

financings, for example, we do not take in all the income immediately. We defer a portion of the fee into the future to pay for surveillance, continuing surveillance, because if we are not rating any 

new issues, we still have analysts to follow the outstanding transactions. So that could be changed into some kind of success fee or 

some—there are alternatives, I think, that the SEC continues to 

progress and try to think about what could be workable. 

Senator CORKER. So then in answering the question that way, 

you actually would not be opposed to that being mandated by the 

Government or the SEC, as long as everyone was doing it. 

Mr. JOYNT. I am open to the dialogue about it. Each time we get 

a dialogue, there have been weaknesses in each one of the other 

ideas, and, of course, it could be quite a dramatic change in kind 

of the profile for an agency like Fitch. So, for example, in the roulette wheel alternative, if ten rating agencies decide they would 

like to rate a structured financing, I guess each one would only get 

chosen one-tenth of the time. That is quite different from today’s 

business dynamic for our firm. 

So I think, you know, while we are open to the dialogue, I would 

have to at least consider how it would impact our business fortunes. 

Senator CORKER. Professor Coffee, when Professor White—and I 

have enjoyed all the dialogue a great deal. But when he was talking about the particular bond manager assuming the liability of— 

you were shaking your head in the opposite direction his was shaking, and I just wondered if you wanted to respond to that. 
48 

Mr. COFFEE. I mean, I don’t really want to delay this hearing 

further. The change to an issuer-pays model was the early 1970s. 

Asset-backed securitizations don’t really become significant before 

about 1990. What was happening was that the Big Two back 

then—Fitch wasn’t really one of the Big Three at that point—really 

were break-even marginal companies, and as the cost became more 

expensive—let us forget the structure of finance—the cost could be 

as high as three-quarters of a million dollars to rate a very complicated structured finance offering, or at least that is the fee 

charged in a slightly competitive market. 

That is such a high cost that I don’t think that can easily be 

dealt with under a user-pay system. You can’t put all that frontend work in hoping you will get paid later on as a developing startup company. That is why they have primarily focused on corporate 

bonds rather than on this complex structured finance field. 

But all I was just agreeing with is why the system broke down. 

It broke down well before structured finance, and frankly, every 

other gatekeeper you can think of, accountants, investment bankers, lawyers, they are paid by their client, also. It has got certain 

efficient properties. 

Senator CORKER. So it was obviously magnified and multiplied 

with all of these complex securities, but when you say it broke 

down well before, expand on that a little bit. 

Mr. COFFEE. Around 1972 or 1973, Moody’s and Standard and 

Poor’s started insisting that issuers pay them for the rating process. In the old days, Moody’s put out a book, Moody’s Bible, and 

in the world we get into by the 1970s, that is a very slow process 

of publishing a book and there is what the economists would call 

a public goods problem here or a free rider problem. If you sell just 

one copy of the book, 10,000 people can read it and they gain the 

same information. So you had to find some way that you could 

force people to subscribe to you and the marketplace didn’t react 

well to insisting upon you pay a subscription fee. 

Senator CORKER. And yet you have said that you know that is 

not going to change. 

Mr. COFFEE. I think the issuer-pays model, which is the model 

we moved to in the 1970s, will be the predominant model as far 

forward as I can see. I certainly wish to encourage user-pays. I 

think they are a very important check and balance on the system. 

But I think they will primarily be a check and balance on the system and most of the business will be done under an issuer-pays 

business model. 

Mr. GELLERT. A comment, Senator? 

Senator CORKER. Yes, sir? 

Mr. GELLERT. I would just like to point out that if you look at 

the newer agencies, or firms, be they NRSROs or not, they are almost entirely subscription-based or user-based businesses. No one 

else is coming into the market and saying, let us startup a new 

issuer-paid. And the reason for that is that the market share is so 

unbelievably tightly held by three players. So for competitive reasons, for all of the regulatory reasons that we have already discussed, breaking into that business as a new player is a relatively 

futile effort. 
49 

But I would just add to Professor Coffee’s comments that one of 

the reasons that we start out as—a firm like us, like Rapid Ratings—starts out rating individual corporations, is, yes, they are 

simpler than trying to rate structured products, but the availability 

of information is completely different. We rate entirely based on 

disclosed, publicly available financial information for public companies, and private companies, it is the data that is provided to us 

by our customers under contract and confidentiality agreement, 

with full understanding on a bilateral basis that we are not conducting due diligence for them, but if they are a bank that has a 

lending relationship, they supply that information, if it is a corporation that has a counterparty risk relationship, they are receiving that information, they supply it to us. It is about availability 

of information. 

So new competitors, regardless of the revenue model, are not 

going to break into—with a couple of very small exceptions, and 

Real Point happens to be one of them—are going to break into the 

structured business when the payment, as Professor Coffee just 

mentioned, needs to be a front-loaded payment and the information 

is simply not being shared. 

Senator CORKER. I appreciate your comments earlier about the 

unintended consequences of making everyone register. I think that 

was a valuable contribution. But let us move down that path just 

a little bit, the one you are on. 

We visited the offices of Second Market. I know that they are setting up a sort of a public auction process for securities and they 

are doing a great job and they are being very successful, and I hope 

they are because they have come up with a brilliant idea. At the 

same time, as I looked at what they were disclosing on some of 

these—again, as you have just mentioned, there is not as much information as one would like—if one—and I have read op-eds recently and publications where disclosure on these securities ought 

to be broadly given—if that was the case, are you saying that an 

entity like yours actually would rate many of these more complex 

securities? I mean, that is a lot of work for all these securities 

being offered. Is that something you say you would pursue? 

Mr. GELLERT. I am saying that we would have the choice, and 

that would be a business choice that we would have, and we would 

make it as we make any other business choice. There are other 

independent, non-NRSRO research firms that are staffed not in an 

analytical, quantitative way that we are, but staffed with enough 

people to be able to execute that type of analysis—not on all structured products, of course, but on individual asset class by asset 

class, CLOs being one of them—and be able to provide an extremely good alternative despite the fact that not all of us would 

be staffed and certainly would be able to say, day one, we will go 

ahead and we will get into the market to do all of—to wholesale— 

get into the structured product rating business. 

Senator CORKER. You wanted to mention something. 

Mr. FROEBA. Yes. I just wanted to say you can combine issuerpay and investor-pay. They don’t have to be exclusive. And you 

would do it by simply giving the investors the opportunity to pick 

which agency an issuer uses. It is the power of the issuer to decide 

who would rate that became the source of, I think the big problems 
50 

in the last few years. They could pit the agencies against each 

other. And if you just take that power away from them, much of 

the problem is solved. Combine the two. It can’t be done. I don’t 

think it would be insurmountable. 

Senator CORKER. Mr. Chairman, thank you, and each of you. One 

of the great privileges we have here is to hear from intelligent people like you often and we thank you very much. I appreciate it. 

Senator REED. Thank you, Senator Corker. 

Gentlemen, thank you for excellent testimony. My colleagues 

may have additional questions and I would ask them to submit 

them by August 12 and ask you to respond as quickly as you can. 

All statements of my colleagues will be made part of the record and 

your statements will be made fully part of the record. 

Thank you very much, and the hearing is adjourned. 

[Whereupon, at 12:17 p.m., the hearing was adjourned.] 

[Prepared statements, responses to written questions, and additional material supplied for the record follow:] 
51 

PREPARED STATEMENT OF SENATOR RICHARD C. SHELBY 

Thank you, Mr. Chairman. 

The nature of today’s credit rating industry reflects decades of regulatory missteps 

rather than market preferences. Over the years, the Government granted special 

regulatory status to a small number of rating agencies and protected those firms 

from potential competitors. 

Beginning in 1975, the Securities and Exchange Commission began embedding 

NRSRO ratings into certain key regulations. Once credit ratings acquired regulatory 

status, they crept into State regulations and private investment guidelines. 

The staff of the SEC controlled access to the prized ‘‘nationally recognized statistical rating organization’’ or NRSRO designation by subjecting potential entrants to 

a vague set of criteria and an incredibly slow time line. 

The SEC did little to oversee NRSROs once so designated. Nevertheless, because 

of the doors they opened, ratings from an NRSRO became an excuse for some investors to stop doing their own due diligence. 

Widespread overreliance on ratings meant that the effects of poor quality or inadequately updated ratings could ripple through the markets. 

By encouraging reliance on a small number of big credit rating agencies, bureaucrats at the SEC exposed the economic system to tremendous risk. 

Our current financial crisis, which was caused in part by the credit rating agencies’ failure to appreciate the risks associated with complex structured products, 

demonstrates just how big that systemic risk was. 

The troubles caused by the SEC’s flawed regime, however, did not come as a surprise. 

When I was Chairman of this Committee, we acted to address the problem after 

the SEC failed to take action on its own. I felt that the industry’s heavy concentration and high profits were symptoms of an industry in serious need of reform. 

We then passed the Credit Rating Agency Reform Act of 2006. The Act set forth 

clear standards for the NRSRO application process. It also gave the SEC authority 

to regulate disclosures and conflicts of interest, as well as unfair and abusive practices. 

Unfortunately, the law that we passed in 2006 did not have time to take root before the problems that they were intended to remedy took their toll. 

The SEC adopted rules pursuant to that legislation in June of 2007. Over the following months, the number of NRSROs doubled, just as the performance of many 

‘‘highly rated’’ subprime securities revealed that such securities were not as safe as 

the rating agencies said they were. 

Today, we will consider a legislative proposal by the Administration to revisit the 

regulation of credit rating agencies. 

In determining whether new legislative steps are required, we should keep in 

mind that the 2006 reforms are still working their way through the system. That 

doesn’t mean, however, that we shouldn’t consider further changes. Every option 

should be on the table. 

One option is to remove rating mandates from regulations. Another is materially 

improving disclosure. As with any regulatory reform, however, we must also be 

mindful of unintended consequences. 

I strongly believe that the credit rating agencies played a pivotal role in the collapse of our financial markets. Any regulatory reform effort must take that into consideration. 

Thank you, Mr. Chairman. 

PREPARED STATEMENT OF SENATOR JACK REED 

I am very pleased Chairman Dodd and Ranking Member Shelby have chosen to 

have a hearing examining proposals to enhance the regulation of credit rating agencies. I want to thank all of our witnesses for taking time out of their busy schedules 

today to testify on this important issue. 

As most of you know, in late May I introduced S. 1073, the Rating Accountability 

and Transparency Enhancement (RATE) Act. The purpose of the RATE Act is to 

strengthen the Securities and Exchange Commission’s (SEC) oversight of credit rating agencies and improve the accountability and accuracy of credit ratings. 

Credit ratings have taken on systemic importance in our financial system, and 

have become critical to capital formation, investor confidence, and the efficient performance of the United States economy. However, during the past year we have witnessed a significant amount of market instability stemming in part from the failure 

of these agencies to accurately measure the risks associated with mortgage-backed 

securities and other more complex products. 
52 

As the Chairman of the Securities, Insurance, and Investment Subcommittee, I 

held a hearing in September of 2007 to examine the role of credit rating agencies 

in the mortgage crisis, and these issues were also addressed at a hearing by the 

full Committee last year. From these hearings, it is clear that problems at credit 

rating agencies contributed to the significant financial sector instability our country 

has been experiencing. In fact, an SEC investigation last summer found that credit 

rating agencies such as Moody’s, Standard & Poor’s, and Fitch Ratings conducted 

weak analyses and failed to maintain appropriate independence from the issuers 

whose securities they rated. 

According to a mortgage industry trade publication, the three major credit rating 

agencies have each downgraded more than half of the subprime mortgage-backed securities they originally rated between 2005 and 2007. Ratings agencies made these 

mistakes in part because of conflicts of interest and other problems with internal 

controls, underscoring the need for enhanced oversight of this industry. 

Credit rating agencies are in the business of providing investors with unbiased 

analysis, but the current incentive structure gives them too much leeway to hand 

out unjustifiably favorable ratings. Let’s be clear: Not every rating is suspect and 

these firms provide crucial information for investors and the marketplace, but credit 

rating agencies like any other industry should be held accountable if they knowingly 

or recklessly mislead investors. My bill includes carefully crafted language that provides investors and other credit rating users with the ability to pursue 10(b)5 fraud 

claims under Federal securities laws. As we will discuss at this morning’s hearing, 

my bill does not change the fraud standard. Rather it tailors the pleading standard 

so that investors can take action when a rating agency recklessly fails to review key 

information in developing the rating. 

The RATE Act would also give the SEC strong new authority to oversee and hold 

rating agencies accountable for conflicts of interest and other internal control deficiencies that have weakened ratings in the past. 

It also enhances disclosure requirements to allow investors and others to learn 

about the methodologies, assumptions, fees, and amount of due diligence associated 

with ratings. And it requires rating agencies to notify users and promptly update 

ratings when model or methodology changes occur. Finally, the bill requires ratings 

agencies to have independent compliance officers, and to take other actions to prevent potential conflicts of interest. 

I am pleased that the credit rating agency draft legislation that the Administration has transmitted to Congress includes many of my provisions to improve the accountability and transparency of credit ratings, and I look forward to working with 

everyone on the Committee on this issue as we move forward with drafting a regulatory modernization bill. 

PREPARED STATEMENT OF MICHAEL S. BARR 

ASSISTANT SECRETARY FOR FINANCIAL INSTITUTIONS, 

DEPARTMENT OF THE TREASURY

AUGUST 5, 2009 

Chairman Dodd, Ranking Member Shelby, and Members of the Committee, thank 

you for the opportunity to testify before you today about the Administration’s plan 

for financial regulatory reform. 

On June 17, President Obama unveiled a sweeping set of regulatory reforms to 

lay the foundation for a safer, more stable financial system; one that properly delivers the benefits of market-driven financial innovation while safeguarding against 

the dangers of market-driven excess. 

In the weeks since the release of those proposals, the Administration has worked 

with Congress in testimony and briefings with your staff to explain and refine our 

legislation. 

Today, I want to first speak in broad terms about the forces that led us into the 

current crisis and the key objectives of our reform proposal. I will then turn to discuss the role that third party credit ratings and rating agencies played in creating 

a system where risks built up without being accounted for or properly understood. 

And how these ratings contributed to a system that proved far too fragile in the face 

of changes in the economic outlook and uncertainty in financial markets. 

This Committee provided strong leadership to enact the first registration and regulation of rating agencies in 2006, and the proposals that I will discuss today build 

on that foundation. 
53 

Where Our Economy Stands Today 

President Obama inherited an economic and financial crisis more serious than 

any President since Franklin Roosevelt. Over the last 7 months, the President has 

responded forcefully with a historic economic stimulus package, with a multiprong 

effort to stabilize our financial and housing sectors, and, in June, with a sweeping 

set of reforms to make the financial system more stable, more resilient, and safer 

for consumers and investors. 

We cannot be complacent; the history of major financial crises includes many false 

dawns and periods of optimism even in the midst of the worst downturns. But I 

think you will agree that the sense of free fall that surrounded the economic statistics earlier this spring has now abated. Even amidst much continued uncertainty, 

we must reflect on the extraordinary path our economy and financial system have 

taken over the past 2 years, and take this opportunity to restore confidence in the 

system through fundamental reform. We cannot afford to wait. 

Forces Leading to the Crisis 

At many turns in our history, we have seen a pattern of tremendous growth supported by financial innovation. As we consider financial reform, we need to be mindful of the fact that those markets with the most innovation and the fastest growth 

seemed to be at the center of the current crisis. 

But in this cycle, as in many cycles past, growth often hid key underlying risks, 

and innovation often outpaced the capacity of risk managers, boards of directors, 

regulators, rating agencies, and the market as a whole to understand and respond. 

Securitization helped banks move credit risk off of their books and supply more 

capital to housing markets. It also widened the gaps between borrowers, lenders, 

and investors—as lenders lowered underwriting standards since the securitized 

loans would be sold to others in the market, while market demand for securitized 

assets lowered the incentives for due diligence. 

Rapidly expanding markets for hedging and risk protection allowed for better 

management of corporate balance sheets, enabling businesses to focus on their core 

missions; credit protection allowed financial institutions to provide more capital to 

business and families that needed it, but a lack of transparency hid the movement 

of exposures. When the downturn suddenly exposed liquidity vulnerabilities and 

large unmanaged counterparty risks, the uncertainty disrupted even the most deeply liquid and highly collateralized markets at the center of our financial system. 

It is useful to think about our response to this crisis in terms of cycles of innovation. New products develop slowly while market participants are unsure of their 

value or their risks. As they grow, however, the excitement and enthusiasm can 

overwhelm normal risk management systems. Participants assume too soon that 

they really ‘‘know how they work,’’ and these new products, applied widely without 

thought to new contexts—and often carrying more risk—flood the market. The cycle 

turns, as this one did, with a vengeance, when that lack of understanding and that 

excess is exposed. But past experience shows that innovation survives and thrives 

again after reform of the regulatory infrastructure renews investor confidence. 

Innovation creates products that serve the needs of consumers, and growth brings 

new players into the system. But innovation demands a system of regulation that 

protects our financial system from catastrophic failure, protects consumers and investors from widespread harm and ensures that they have the information they 

need to make appropriate choices. 

Rather than focus on the old, ‘‘more regulation’’ versus ‘‘less regulation’’ debate, 

the questions we have asked are: why have certain types of innovation contributed 

in certain contexts to outsized risks? Why was our system ill-equipped to monitor, 

mitigate and respond to those risks? 

Our system failed to provide transparency in key markets, especially fast developing ones. Rapid growth hid misaligned incentives that people didn’t recognize. 

Throughout our system we had inadequate capital and liquidity buffers—as both 

market participants and regulators failed to account for new risks appropriately. 

The apparent short-term rewards in new products and rapidly growing markets created incentives for risk-taking that overwhelmed private sector gatekeepers, and 

swamped those parts of the system that were supposed to mitigate risk. And households took on risks that they did not fully understand and could ill-afford. 

Our proposals identify sweeping reforms to the regulation of our financial system, 

to address an underlying crisis of confidence—for consumers and for market participants. We must create a financial system that is safer and fairer; more stable and 

more resilient. 
54 

Protecting Consumers 

We need strong and consistent regulation and supervision of consumer financial 

services and investment markets to restore consumer confidence. In early July, we 

delivered the first major portion of our legislative proposals to the Congress, proposing to create a Consumer Financial Protection Agency (CFPA). 

We all aspire to the same objectives for consumer protection regulation: independence, accountability, effectiveness, and balance—a system that promotes financial 

inclusion and preserves choice. The question is how to achieve that. A successful 

regulatory structure for consumer protection requires mission focus, marketwide 

coverage, and consolidated authority. 

Today’s system has none of these qualities. It fragments jurisdiction and authority 

for consumer protection over many Federal regulators, which have higher priorities 

than protecting consumers. Banks can choose the least restrictive supervisor among 

several different banking agencies. Nonbank providers avoid Federal supervision altogether; no Federal consumer compliance examiner ever lands at their doorsteps. 

Fragmentation of rule writing, supervision, and enforcement leads to finger-pointing 

in place of action and makes actions taken less effective. 

The President’s proposal for one agency for one marketplace with one mission— 

protecting consumers—will resolve these problems. The Consumer Financial Protection Agency will create a level playing field for all providers, regardless of their 

charter or corporate form. It will ensure high and uniform standards across the 

market. It will support financial literacy for all Americans. It will prohibit misleading sales pitches and hidden traps, but there will be profits made on a level 

playing field where banks and nonbanks can compete on the basis of price and quality. 

If we create one Federal regulator with consolidated authority, then we will be 

able to leave behind regulatory arbitrage and interagency finger pointing. And we 

will be assured of accountability. 

Our proposal ensures, not limits, consumer choice; preserves, not stifles, innovation; strengthens, not weakens, depository institutions; reduces, not increases, regulatory costs; empowers, not undermines, consumers; and increases, not reduces, national regulatory uniformity. 

Systemic Risk 

Much of the discussion of reform over the past 2 years—both in our proposals and 

among other commentators—has focused on both the nature of and proper response 

to systemic risk. 

To address these risks, our proposals focus on three major tasks: (1) providing an 

effective system for monitoring risks as they arise and coordinating a response; (2) 

creating a single point of accountability for tougher and more consistent supervision 

of the largest and most interconnected institutions; and (3) tailoring the system of 

regulation to cover the full range of risks and actors in the financial system, so that 

risks can no longer build up completely outside of supervision and monitoring. 

Many have asked whether we need a ‘‘systemic risk regulator’’ or a ‘‘super regulator’’ that can look out for new risks and immediately take action to address them 

or order other regulators to do so. That is not what we are proposing. We cannot 

have a system that depends on the foresight of a single institution or a single person 

to identify and prevent risks. That’s why we have proposed that the critical role of 

monitoring for emerging risks and coordinating policy responses be vested in a Financial Services Oversight Council. 

At the same time, a council of independent regulators with divergent missions will 

not have operational coherence and cannot be held accountable for supervision of 

individual financial firms. That’s why we propose an evolution in the Federal Reserve’s power to provide consolidated supervision and regulation of any financial 

firm whose combination of size, leverage, and interconnectedness could pose a threat 

to financial stability if it failed. The financial crisis has demonstrated the crucial 

importance of having a consolidated supervisor and regulator for all ‘‘Tier 1 Financial Holding Companies,’’ with the regulator having the authority and responsibility 

to regulate these firms not just to protect their individual safety and soundness but 

to protect the entire financial system. 

This crisis has also clearly demonstrated that risks to the system can emerge from 

all corners of the financial markets and from any of our financial institutions. Our 

approach is to bring these institutions and markets into a comprehensive system of 

regulation, where risks are disclosed and monitored by regulators as necessary. Secretary Geithner has testified about the need to bring all over-the-counter derivatives 

markets into a comprehensive regulatory framework. In the next few days we will 

deliver legislative text to this Committee that would accomplish that goal. We have 

delivered proposed legislation that would strengthen the regulation of securitization 
55 

markets, expand regulatory authority for clearing, payment, and settlement systems, and require registration of hedge funds. 

Basic Reform of Capital, Supervision, and Resolution Authority 

As Secretary Geithner has said, the three most important things to lower risk in 

the financial system are ‘‘capital, capital, capital.’’ We need to make our financial 

system safer and more resilient. We cannot rely on perfect foresight—whether of 

regulators or firms. Higher capital charges can insulate the system from the buildup of risk without limiting activities in the markets. That’s why we have launched 

a review of the capital regime and have proposed raising capital and liquidity standards across the board, including higher standards for financial holding companies, 

and even higher standards for Tier 1 Financial Holding Companies—to account for 

the additional risk that the largest and most interconnected firms could pose to our 

system. 

Making the system safe for innovation means financial firms should raise the 

amount of capital that they hold as a buffer against potential future losses. It also 

means creating a more uniform system of regulation so that risks cannot build up 

due to inadequate regulatory oversight. To strengthen banking regulation, we propose removing the central source of arbitrage among depository institutions. Our 

proposed National Bank Supervisor would consolidate the Office of Thrift Supervision and the Office of the Comptroller of the Currency. We will also close loopholes 

in the Bank Holding Company Act that allow firms to own insured depository institutions yet escape consolidated supervision and regulation. 

Financial activity involves risk, and the fact is that we will not be able to identify 

all risks or prevent all future crises. We learned through painful experience that 

during times of great stress, the disorderly failure of a large, interconnected institution can threaten the stability of the entire financial system. While we have a tested 

and effective system for resolving failing banks, there is still no effective legal mechanism to resolve a nonbank financial institution or bank holding company. We have 

proposed to fill this gap in our legal framework with a mechanism modeled on our 

existing system under the We have proposed to fill this gap in our legal framework 

with a mechanism modeled on our existing system under the Federal Deposit Insurance Corporation (FDIC). 

Finally, both our financial system and this crisis have been global in scope. Our 

solutions have been and must continue to be global. International reforms must support our efforts at home, including strengthening the capital framework; improving 

oversight of global financial markets; coordinating supervision of internationally active firms; and enhancing crisis management tools. We will not wait for the international community to act before we reform at home, but nor will we be satisfied 

with an international race to the bottom on regulatory standards. 

Credit Ratings and Fragility 

It’s worthwhile to begin our discussion on credit ratings with a basic explanation 

of the role that they play in our economy. Rating agencies solve a basic market failure. In a market with borrowers and lenders, borrowers know more about their own 

financial prospects than lenders do. Especially in the capital markets, where a lender is likely purchasing just a small portion of the borrower’s debt in the form of a 

bond or asset-backed security—it can be inefficient, difficult and costly for a lender 

to get all the information they need to evaluate the credit worthiness of the borrower. And therefore lenders will not lend as much as they could, especially to lesser 

known borrowers such as smaller municipalities; or lenders will offer higher rates 

to offset the uncertainty. Credit rating agencies provide a third party rating based 

on access to more information about the borrower than a lender may be able to access, and on accumulated experience in evaluating credit. By issuing a rating of the 

creditworthiness of a borrower, they can validate due diligence performed by lenders 

and enhance the ability of borrowers to raise funds. Further, the fact the credit rating agencies rate a wide variety of credit instruments and companies allowed debt 

investors to have the benefit of a consistent, relative assessment of credit risk across 

different potential investments. 

This role is critical to municipalities and companies to access the capital markets, 

and rating agencies have facilitated the growth of securitization markets, increasing 

the availability of mortgages, auto loans, and small business loans. 

Credit ratings also played an enabling role in the buildup of risk and contributed 

to the deep fragility that was exposed in the past 2 years. As I discussed before, 

the current crisis had many causes but a major theme in each was that risk—complex and often misunderstood—was allowed to build up in ways that the supervisors 

and regulators were unable to monitor, prevent or respond to effectively. Earnings 
56 

from rapid growth driven by innovation overwhelmed the will or ability to maintain 

robust internal risk management systems. 

As the Members of this Committee know, the highest rating given by rating agencies is ‘‘triple-A.’’ An easy way to understand the importance of a triple-A rating for 

a borrower or an investor is that this label is the same one given to the U.S. Government. It means that the rating agency estimates that the probability of default— 

or the debt investor losing money—in the following year is extremely remote. 

The ‘‘triple-A’’ designation was therefore highly valued, but perversely, rather 

than preserve this designation for the few, the amount of securities and borrowers 

that were granted this designation became much more prevalent as borrowers and 

issuers were able to convince the rating agencies that innovation in the structured 

credit market allowed for the creation of nearly riskless credit investments. Market 

practices such as ‘‘ratings shopping’’ before contracting for a rating, and the creation 

of consulting relationships may have contributed to conflicts of interest and upward 

pressure on ratings. 

Rating agencies have a long track record evaluating the risks of corporate, municipal, and sovereign bonds. These ratings are based on the judgment of rating agencies about the credit worthiness of a borrower and are usually based on confidential 

information that is not generally available to the market, including an assessment 

of the borrower’s income, ability to meet payments, and their track record for doing 

so. Evaluating a structured finance product is a fundamentally different type of analysis. Asset-backed securities represent a right to the cash flows from a large bundle 

of smaller assets. In this way an investor can finance a small portion of hundreds 

or thousands of loans, rather than directly lending to a single borrower. This structure diversifies the investor’s risk with respect to a given borrower’s default and 

averages out the performance of the investment to be equal to a more general class 

of borrowers. It also allows more investors to participate in the market, since the 

investor’s capital no longer needs to be tied to the origination of a loan. 

Certain asset-backed securities also relied on a process of ‘‘tranching’’—slicing up 

the distribution of potential losses to further modify the return of the security to 

meet the needs of different investors. This process relied on quantitative models and 

therefore could produce any probability of default. Credit ratings lacked transparency with regard to the true risks that a rating measured, the core assumptions 

that informed the rating and the potential conflicts of interest in the generation of 

that rating. This was particularly acute for ratings on asset-backed securities, where 

the concentrated systematic risk of senior tranches and resecuritizations are quite 

different from the more idiosyncratic risks of corporate bonds. As we discovered in 

the past 2 years, the risks of asset-backed securities are much more highly correlated to general economic performance than other types of bonds. The more complicated products are also sensitive to the assumptions in the quantitative models 

used to create these products. 

Investors, as described earlier, relied on the rating agencies’ ability to assess risk 

on a similar scale across instruments. They therefore saw highly rated instruments 

and borrowers as generally similar even though the investments themselves ranged 

from basic corporate bonds to highly complex bonds backed by loans or other assetbacked securities. Investors, and even regulatory bodies, rather than using ratings 

as one of many tools in their credit decisions, began to rely entirely on the ratings 

and performed little or no due diligence. Further, investors ventured into products 

they understood less and less because they carried the ‘‘seal of approval’’ from the 

rating agencies. This reliance gave the ratings agencies an extraordinary amount of 

influence over the fixed income markets and the stability of these markets came to 

depend, to a large degree, on the robustness of these ratings. 

Ultimately, this led to a toxic combination of overreliance on a system for rating 

credit that was not transparent and highly conflicted. Many of the initial ratings 

made during this period turned out to be overly optimistic. When it became clear 

that ‘‘triple A’’ securities were not as riskless as advertised, it caused a great 

amount of disruption in the fixed income markets. 

One of the central examples of these problems is in the market for Collateralized 

Debt Obligations or ‘‘CDOs.’’ These products are created by pooling a group of debt 

instruments, often mortgage loans, then slicing up the economic value of the cash 

flows to create tailored combinations of risk and return. The senior tranches would 

have the first right to payments, while the most junior tranche—often called the 

‘‘equity’’ tranche—would not be paid until all others had been paid first. These new 

products were highly complex and difficult for most investors to evaluate on their 

own. Rating agencies stepped into this gap and provided validation for the sale of 

these products, because their quantitative models and assumptions often determined that the most senior tranches could be rated triple-A. Without this designa-
57 

1SIFMA, CDO Global Issuance Data. 

tion, many pension funds, insurance companies, mutual funds, and banks would 

never have been willing to invest. Many investors did not realize that the ratings 

were highly dependent on the economic cycle or that the ratings for many CDOs 

backed by subprime mortgage bonds assumed that there would never be a nationwide decline in housing prices. This complexity was often ignored as the quarterly 

issuance of CDOs more than quadrupled from 2004 to mid-2007, reaching $140 billion in the second quarter of 2007. 1 But following a wave of CDO downgrades in 

July 2007, the market for CDOs dried up and new issuance collapsed as investors 

lost confidence in the rating agencies and investors realized they themselves did not 

understand these investments. 

The reforms proposed by this Administration recognize the market failure that 

the credit rating agencies help to remedy, but also address the deep problems 

caused by the manner in which these agencies operated and the overreliance on 

their judgments. 

Reform of the Credit Rating System 

This Committee, under the leadership of Senator Shelby, Senator Dodd, and others, took strong steps to improve regulation of rating agencies in 2006. That legislation succeeded in increasing competition in the industry, in giving much more explicit authority to the SEC to require agencies to manage and disclose conflicts of 

interest, and helping ensure the existence and compliance with internal controls by 

the agencies. 

This authority has already been used by the SEC over the past year to strengthen 

regulation and enforcement. The Administration strongly supports the actions that 

the SEC has taken and we will continue to work closely with the SEC to support 

strong regulation of credit rating agencies. 

But flaws and conflicts revealed in the current crisis highlight the need for us to 

go further as more needs to be done. 

Our legislative proposal directly addresses three primary problems in the role of 

credit rating agencies: lack of transparency, ratings shopping, and conflicts of interest. It also recognizes the problem of overreliance on credit ratings and calls for additional study on this matter as well as reducing the overreliance on ratings. While 

there were clear failures in credit rating agency methodologies, our proposals continue to endorse the divide established by this Committee in 2006: The Government 

should not be in the business of regulating or evaluating the methodologies themselves, or the performance of ratings. To do so would put the Government in the 

position of validating private sector actors and would likely exacerbate over-reliance 

on ratings. However, the Government should make sure that rating agencies perform the services that they claim to perform and our proposal authorizes the SEC 

to audit the rating agencies to make sure that they are complying with their own 

stated procedures. 

Lack of Transparency 

The lack of transparency in credit rating methodologies and risks weakened the 

ability of investors to perform due diligence, while broad acceptance of ratings as 

suitable guidelines for investment weakened the incentives to do so. These two 

trends contributed significantly to the fragility of the financial system. 

Our proposals address transparency both in the context of rating agency disclosure as well as stronger disclosure requirements in securitization markets more generally. An agency determines a rating with a proprietary risk model that takes account of a large number of factors. While we do not advocate the release of the proprietary models, we do believe that all rating agencies should be required to give 

investors a clear sense of the variety of risk factors considered and assumptions 

made. 

For instance, there are a number of ways to obtain a high rating for an assetbacked security that are not transparent to investors. First, there is the quality of 

the underlying assets—a bundle of prime mortgage loans will have higher credit 

worthiness than a bundle of subprime mortgage loans, all things being equal. Second, the rating agency could consider the quality and reliability of the data—fully 

documented mortgages or consumer credit instruments with a longer performance 

history (like auto loans) give greater certainty to the rating. Finally, if the security 

uses tranching or subordination, then giving a greater proportion of the economic 

value to a certain class of investors will raise the credit rating for that class. In the 

current system, there is no requirement that these factors be disclosed or compared 

for investors along with the credit rating. 
58 

2 Benmelech and Dlugosz 2009, ‘‘The Credit Rating Crisis.’’ 

Our proposals would require far more transparency of both qualitative and quantitative information so that investors can carry out their own due diligence more effectively. To facilitate investor analysis, we will require that each rating be supported by a public report containing assessments of data reliability, the probability 

of default, the estimated severity of loss in the event of default, and the sensitivity 

of a rating to changes in assumptions. The format of this report will make it easy 

to compare these data across different securities and institutions. The reports will 

increase market discipline by providing clearer estimates of the risks posed by different investments. 

The history of rating agencies assessments in corporate, municipal, and sovereign 

bonds allowed them to expand their business models to evaluate structured finance 

products without proving that they had the necessary expertise to evaluate those 

products. The use of an identical rating system for corporate, sovereign, and structured securities allowed investors to purchase these products under their existing 

investment standards with respect to ratings. The identical rating systems also allowed regulators to use existing guidelines without the need to consider the different risks posed by these new financial instruments. Our proposals address the 

disparate risks directly by requiring that rating agencies use ratings symbols that 

distinguish between structured and unstructured financial products. It is our hope 

that this will cause supervisors and investors to examine carefully their guidelines 

to ensure that their investment strategy is appropriate and specific. 

Ratings Shopping 

Currently, an issuer may attempt to ‘‘shop’’ among rating agencies by soliciting 

‘‘preliminary ratings’’ from multiple agencies and enlisting the agency that provides 

the highest preliminary rating. Consistently, this agency also provides a high final 

rating. 

A number of commentators have argued that either the existence or threat of such 

‘‘ratings shopping’’ by issuers played an important role in structured products leading up to the crisis. A recent Harvard University study contains supporting evidence, finding that structured finance issues that were only rated by a single rating 

agency have been more likely to be downgraded than issues that were rated by two 

or more agencies. 2 Our proposal would shed light on this practice by requiring an 

issuer to disclose all of the preliminary ratings it had received from different credit 

rating agencies so that investors could see how much the issuer had ‘‘shopped’’ and 

whether the final rating exceeded one or more preliminary ratings. The prospect of 

such disclosures should also deter ratings shopping in the first place. In addition, 

the SEC has proposed a beneficial rule that would require agencies to disclose the 

rating history—of upgrades and downgrades—so that the market can assess the 

long-term quality of ratings. 

As an additional check against rating shopping, the Administration supports a 

proposed SEC rule that would require issuers to provide the same data they provide 

to one credit rating agency as the basis of a contracted rating to all other credit 

rating agencies. This will allow other credit rating agencies to provide additional, 

independent analyses of the issuer to the market. Such ‘‘unsolicited’’ ratings, have 

been ineffective because investors understand that these unsolicited ratings are not 

based on the same information as the fully contracted ratings, especially for structured products that are often complex and require detailed information to assess. 

By requiring full disclosure to all rating agencies, this rule would limit any potential 

benefit from rating shopping and should increase the amount of informed, but independent, research on credit instruments. 

Conflicts of Interest 

Our proposals include strong provisions to prevent and manage conflicts of interest, which we identify as a major problem of the current regime. Many of our proposals are aligned with specific provisions proposed by Senator Reed. Our approach 

is to solve these problems within the current framework rather than prohibiting 

specific models of rating agency compensation as some have advocated. Both issuer 

pay and investor pay models exist today and we do not believe it is the place of 

Government to prescribe allowable business models in the free market. Our proposal 

will make it simple for investors to understand the conflicts in any rating that they 

read and allow them to make their own judgment of its relevance to their investment decision. 

Most directly, we would ban rating agencies from providing consulting services to 

issuers that they also rate. While these consulting contracts do not currently form 

a huge proportion of the revenue of the top rating agencies, they are an undeniable 
59 

source of conflict since they allow for issuers and raters to work closely together and 

develop economic ties that are not related to the direct rating of securities. For instance, today a rating agency may consult with an issuer on how to structure and 

evaluate asset-backed securities, and then separately be paid by the issuer to rate 

the same securities created. This Committee was at the center of a similar effort 

that banned these types of cross-relationships for audit firms in the passage of the 

Sarbanes-Oxley Act of 2002, which also required a study of issues with credit rating 

agencies. Today, we propose that these cross-relationships be simply prohibited. 

Our proposals also strengthen disclosure and management of conflicts of interest. 

The legislation will prohibit or require the management and disclosure of conflicts 

arising from the way a rating agency is paid, its business relationships, its affiliations, or other sources. Each rating will be required to include a disclosure of the 

fees paid for the particular rating, as well as the total fees paid to the rating agency 

by the issuer in the previous 2 years. This disclosure will give the market the information it needs to assess potential bias of the rating agency. The legislation also 

requires agencies to designate a compliance officer, with explicit requirements that 

this officer report directly to the board or the senior officer, and that the compliance 

officer have the authority to address any conflicts that arise within the agency. Rating agencies will be required to institute reviews of ratings in cases where their employees go work for issuers, to reduce potential conflicts from a ‘‘revolving door.’’ 

Strengthen and Build on SEC Supervision 

Under the authority created by this Committee in 2006, the SEC has already 

begun to address many problems with rating agencies. The Treasury supports these 

actions and has included in our legislative proposal additional authority to strengthen and support SEC regulation of rating agencies. 

The Commission has allocated resources to establish a branch of examiners dedicated specifically to conducting examination oversight of credit rating agencies, 

which would conduct routine, special, and cause examinations. Our proposed legislation would strengthen this effort and create a dedicated office for supervision of rating agencies within the Commission. Under the legislation, the SEC will require 

each rating agency to establish and document its internal controls and processes— 

and will examine each rating agency for compliance. 

In line with the principle of consistent regulation and enforcement, our proposal 

will make registration mandatory for all credit rating agencies—ensuring that these 

firms cannot evade our efforts to strengthen regulation. 

In response to the credit market turmoil, in February the SEC took a series of 

actions with the goal of enhancing the usefulness of rating agencies’ disclosures to 

investors, strengthening the integrity of the ratings process, and more effectively addressing the potential for conflicts of interest inherent in the ratings process for 

structured finance products. 

Specifically, the SEC adopted several measures designed to increase the transparency of the rating agencies’ rating methodologies, strengthen the rating agencies’ 

disclosure of ratings performance, prohibit the rating agencies from engaging in certain practices that create conflicts of interest, and enhance the rating agencies’ recordkeeping and reporting obligations to assist the SEC in performing its regulatory 

and oversight functions. We support these measures. 

Conclusion 

In the weeks since we released our plan for reform, we have been criticized by 

some for going too far and by some for not going far enough. These charges are 

stuck in a debate that presumes that regulation—and efficient and innovative markets—are at odds. In fact, the opposite is true. Markets rely on faith and trust. We 

must restore honesty and integrity to our financial system. These proposals maintain space for growth, innovation, and change, but require that regulation and oversight adapt as well. Markets require clear rules of the road. Consumers’ confidence 

is based on the trust and fair dealing of financial institutions. Regulation must be 

consistent, comprehensive, and accountable. The President’s plan lays a new foundation for financial regulation that will once again help to make our markets vital and 

strong. 

Thank you very much. 
60 

PREPARED STATEMENT OF STEPHEN W. JOYNT 

PRESIDENT AND CHIEF EXECUTIVE OFFICER, 

FITCH RATINGS

AUGUST 5, 2009 

While overall macroeconomic conditions remain difficult, it seems the period of the 

most intense market stress has passed. This is due to both a variety of Government 

initiatives here and abroad aimed at restoring financial market stability as well actions taken by companies individually to shore up their balance sheets and reduce 

risk. Having said that, important sectors in the fixed income markets remain effectively closed and certain sectors, such as commercial mortgage-backed securities, are 

experiencing greater performance strain on their underlying assets. 

During this time, the focus of Fitch Ratings has been on implementing a broad 

and deep range of initiatives that enhance the reliability and transparency of our 

rating opinions and related analytics. More specifically, our primary focus is on vigorously reviewing our analytical approaches and changing ratings to reflect the current risk profile of securities we rate. In many cases, that continues to generate a 

significant number of downgrades in structured securities, but also affects other sectors, such as banks and insurance. We are releasing our updated ratings and research transparently and publicly and we are communicating directly with the market the latest information and analysis we have. 

In parallel, we have been introducing a range of new policies and procedures— 

and updating existing ones—to reflect the evolving regulatory frameworks within 

which credit rating agencies operate globally. 

In each of these areas, we have been as transparent as possible and broadly engaged with a wide range of market participants, including policy makers and regulators. We are happy to expand upon any of these topics. 

That said, the primary focus of today’s hearing is to examine proposals to enhance 

the regulation of credit rating agencies, or ‘‘where do we go from here.’’ Clearly, 

credit rating agencies continue to be a topic of interest in the market and in the 

regulatory communities. Senator Reed has introduced a bill this year—the ‘‘Rating 

Accountability and Transparency Enhancement Act of 2009.’’ The House Financial 

Services Committee held a hearing in May 2009 on topics similar to today’s hearing. 

The SEC has issued new rules and considered many important questions in its 

roundtable discussion in April. Most recently the Treasury sent legislation to Congress that reflected the Administration’s perspectives on credit rating agency reform. Outside of the U.S., the EU recently enacted a registration and oversight system and related rules for credit rating agencies. Other nations are considering similar measures. 

As this Committee considers these topics, we would like to offer our perspective 

on several important issues. The bodies referenced above have touched on many of 

these themes in their proposals and discussions. Let me reiterate that Fitch is committed to engaging on all of these matters in a thoughtful, balanced, constructive, 

and non-self-serving manner. At the same time, some perceptions and proposals continue to circulate that warrant further consideration, clarification, or in some cases 

‘‘reality checking.’’ 

Managing Conflicts of Interest. The majority of Fitch’s revenues are fees paid by 

issuers for assigning and maintaining ratings. This is supplemented by fees paid by 

a variety of market participants for research subscriptions. The primary benefit of 

this model is that it enables Fitch to be in a position to offer analytical coverage 

on every asset class in every capital market—and to make our rating opinions freely 

available to the market in real time, thus enabling the market to freely and fully 

assess the quality of our work. Fitch has long acknowledged the potential conflicts 

of being an issuer-paid rating agency. Fitch believes that the potential conflicts of 

interest in the ‘‘issuer pays’’ model have been, and continue to be, effectively managed through a broad range of policies, procedures, and organizational structures 

aimed at reinforcing the objectivity, integrity, and independence of its credit ratings, 

combined with enhanced and ongoing regulatory oversight. In recent months, Fitch 

has introduced new policies, and revised many existing ones, focused on these 

issues. A few examples of our relevant policies and procedures are below: 

• Business development is separated from credit analysis, to keep each group focused on its core task. 

• Employees involved in the assignment of the resulting ratings do not handle 

fees discussions for an issuer or transaction. 

• No analyst or group of analysts is directly compensated on the revenues related 

to their ratings. 
61 

• Rating analysts are prohibited from advising issuers and underwriters on structuring transactions and focus solely on developing and communicating our opinion on the credit fundamentals associated with a given structure. 

• Ratings are determined using a committee structure, not by a single analyst. 

These committees include a mandatory independent member. 

• Cross-group committees and an independent internal review function review all 

ratings criteria. 

• Fitch has introduced the new role of group credit officer in each of its rating 

groups. 

• Fitch has established and enforces a Code of Conduct (consistent with IOSCO’s 

and updated in February 2009) and ancillary policies to specifically address potential conflicts. 

• Fitch has relocated all of its nonrating operations into a separate division, Fitch 

Solutions, which operates behind a firewall. 

No payment model would be completely immune to conflicts of interest, whether 

from investors, issuers, governments, or regulators. An ‘‘investor pays’’ model also 

contains direct conflicts, given that most major investors have a vested financial interest in the level of ratings and many are rated entities. A move to a complete ‘‘investor pays’’ model, by definition making the ratings a subscription product, could 

also remove ratings from the public domain. This would conflict with investor and 

policy makers’ call for ratings to be broadly available, thereby allowing the market 

to openly judge ratings performance. 

Disclosure of Ratings Methodologies. The definitions for all of Fitch’s ratings and 

rating scales are regularly reviewed and updated, publicly disclosed and freely available on our Web site. The most recent update to our ratings definitions is set forth 

in a March 2009 report entitled ‘‘Definitions of Ratings and Other Scales.’’ In addition, the criteria that details Fitch’s analytical approach to rating issues and issuers 

in every region and asset class are also regularly reviewed and updated, and freely 

available on our Web site on a centralized ‘‘criteria homepage.’’ In select cases where 

Fitch is considering what it believes to be a material shift in our thinking regarding 

our analytical approach to a given sector, we normally release our thinking to the 

market as an ‘‘exposure draft.’’ In such a case, we solicit feedback from market participants and engage in transparent discussions about our approach—such as oneon-one meetings, webcasts and conference calls—and we have done so repeatedly in 

the last few years. In addition, the processes we follow internally in developing and 

approving such methodology updates are also fully codified, consistent with SEC 

and IOSCO rules, and freely available. Finally, we develop and publish an enormous 

number of rating commentaries (over 15,000 in 2008) and research reports that 

summarize our opinions on issues, issuers and market sectors as part of our efforts 

to ensure the market is aware of our perspective. Those in the market that allege 

that our ratings are a ‘‘black box’’ must not be fully aware of the information we 

make available, or they do not fully appreciate the concept that the rating itself is 

not a simplistic mathematical output, but rather a committee decision based on a 

range of quantitative and qualitative factors. For every rating action we take, we 

publish the corresponding rationale and make that freely available to the market. 

We do not believe that everyone will agree with all of our opinions, but we are committed to ensuring the market has the opportunity to discuss them. 

Issuer Disclosure and Due Diligence in Structured Finance. Some market participants, in reviewing the performance of ratings in structured finance markets, have 

noted that limits on the amount of information that is disclosed to the market by 

issuers and underwriters has made the market over-reliant on rating agencies for 

analysis and evaluation of structured securities. The argument follows that the market would benefit if additional information on structured securities (such as asset 

specific data on residential and commercial mortgage backed securities) were made 

broadly and readily available to investors, thereby enabling them to have access to 

the same information that mandated rating agencies have in developing and maintaining our rating opinions. Fitch fully supports the concept of greater disclosure of 

such information. A related benefit of additional issuer disclosure is that it addresses the issue of ratings shopping. Greater disclosure would enable nonmandated 

NRSROs to issue ratings on structured securities if they so choose, thus providing 

the market with greater variety of opinion and an important check on any perceived 

‘‘ratings inflation.’’ We also believe that responsibility for disclosing such information should rest fully with the issuers and the underwriters, not with rating agencies. Quite simply, it is their information on their transactions, so they should disclose it. 
62 

Furthermore, Fitch notes that the disclosure of additional information is of questionable value if the accuracy and reliability of the information is suspect. That goes 

to the issue of due diligence. While rating agencies have taken a number of steps 

to increase our assessments of the quality of the information we are provided in assigning our ratings, including adopting policies that state that we will not rate 

issues if we deem the quality of the information to be insufficient, due diligence is 

a specific and defined legal concept. Due diligence is not currently, nor should be, 

the responsibility of credit rating agencies. Consistent with existing securities laws, 

the burden of due diligence belongs on issuers and underwriters. In that regard, we 

support the concept that issuers and underwriters ought to be required to conduct 

rigorous due diligence on the underlying assets that comprise asset backed and 

mortgage backed securities offered or sold in the U.S. Fitch believes Congress 

should consider amending the securities law to require such due diligence on underlying assets for all ABS and MBS securities offered or sold in the U.S., whether or 

not the securities are registered under Section 5 or sold pursuant to an exemption 

from such registration. Congress ought not to hold rating agencies responsible for 

such due diligence or for requiring that others do it. Rather, Congress should mandate that the SEC enact rules to require issuers and underwriters to perform such 

due diligence—make public the findings—and enforce the rules they enact. 

Regulation and Transparency. Stated simply and clearly, Fitch supports fair and 

balanced oversight and registration of credit rating agencies and believes the market will benefit from globally consistent rules for credit rating agencies that foster 

transparency, disclosure of ratings and methodologies, and management of conflicts 

of interest. 

The dialogue on changes to rating agency regulation continues to follow two primary—and not necessarily consistent—themes. The first is the imposition of additional rules and regulations that are manifested in a range of new or enhanced policies and procedures. This has been the primary thrust of recent SEC rulemaking 

and of the recently passed EU rules. Fitch is or will be fully compliant with these 

new rules. 

At the same time, a number of commentators have spoken on the topic of the market’s perceived over-reliance on credit ratings. To a certain extent, we agree with 

this premise, insofar as some market participants clearly used ratings as a substitute for—as opposed to a complement to—their own fundamental credit analysis. 

One proposed remedy for this is to eliminate the use of ratings in regulation or to 

eliminate the NRSRO concept altogether. While deceivingly simple, we believe this 

proposal warrants several comments. Ratings have been used constructively in 

many places in regulation, as they are an important common benchmark. From a 

regulatory point of view, the question of what would be used in place of credit ratings is rarely answered satisfactorily. Simply having regulators ‘‘do it themselves’’ 

has a range of practical implications and unintended consequences. As does the notion of allowing regulated financial entities to assess the credit risk of the securities 

completely on their own without reference to any independent external risk benchmarks. In many cases, if you eliminate the use of ‘‘NRSRO’’ ratings in regulation, 

company and industry participants will likely develop or maintain their own guidelines and use credit ratings anyway. We believe they will default to the largest 

‘‘brand name’’ rating agencies (Moody’s and S&P), which is not a positive if one of 

your objectives is increasing competition and thereby fostering a better work product. Note that the SEC proposed a variation on this theme in 2008 with respect to 

money market funds and their use of ratings but chose not to move forward, in part 

based on significant feedback supporting the use of ratings in money market regulations from the fund industry itself. Some have suggested replacing ratings with 

market prices for debt—either bond spreads or CDS spreads. While these may reflect the market’s sense of price at a given point, recall from the events of the last 

2 years that not all securities are liquid, that bid-ask spreads can widen materially 

in times of stress and that market prices by definition are inherently more volatile 

than a fundamentally driven credit rating. However, if one is serious about eliminating ratings in regulation, we suggest you transition to elimination over an intermediate time frame with careful consideration of each regulation, rather than 

wholesale elimination. A better solution is continued recognition and oversight of 

NRSROs with the goal of improving the performance and usefulness of ratings. 

Speaking of competition and regulation, the SEC also has approved a wide range 

of new NRSROs. Some are established with global reach, resources and coverage, 

while others are focused geographically or by sector, have modest resources, and/ 

or coverage and ratings history that are more limited. Given the divergent profiles, 

it is quite a challenge to consider the issues we are discussing today. For example, 

we do not believe the definitions and meanings of ratings are all the same among 

NRSROs, let alone the levels of the ratings themselves. We also believe it is signifi-
63 

1See, Written Statement of Eugene Volokh, Gary T. Schwartz Professor of Law, University 

of California, Los Angeles, School of Law before Subcommittee on Capital Markets, Insurance, 

and Government Sponsored Enterprises of the House Committee on Financial Services at Approaches To Improving Credit Rating Agency Regulation, May 19, 2009, at pp. 9–10 available 

at http://www.house.gov/apps/list/hearing/financialsvcsldem/volokh.pdf (‘‘Professor Volokh 

Statement’’). 2 Nathan Koppel, ‘‘Credit Raters Plead the First; Will It Fly?’’ The Wall Street Journal, April 

21, 2009, C1 (quoting Professor Eugene Volokh). 3See, Professor Volokh Statement, at pp. 2–3. 

cant that a verifiable record of performance is not publicly available from all 

NRSROs and that not all ratings are publicly available in real time. Specifically, 

the market benefits from the differences of opinion as expressed by the different ratings assigned by credit rating agencies. Usually, the initial rating assigned by Fitch 

will be proven reliable. The same is of course true of any other agency. However, 

if some NRSROs need not disclose all of their ratings, that dynamic merely allows 

them to ‘‘cherry-pick’’ the selected ratings where they believe they were ‘‘first’’ or 

‘‘better’’ without the obligation to provide the information that enables the market 

to fully compare and contrast the opinions and performance of the NRSROs based 

on all of their ratings. If a goal is improvement of the reliability of credit ratings 

through increased competition and transparency, we believe all oversight requirements should be applied consistently and equally to all NRSROs. 

A final point on regulation: The Treasury’s proposal includes the concept of mandatory registration for credit rating agencies. Fitch, along with the other recognized 

NRSROs, is already registered and subject to explicit SEC regulatory oversight. We 

believe the mandatory registration concept is unnecessary and unwarranted and is 

not consistent with basic free speech principals. 1

Accountability and Liability. While we understand and agree with the notion that 

we should be accountable for what we do, we disagree with the idea that the imposition of greater liability will achieve that. Some of the discussion on liability is based 

on misperceptions, and those points are noted below. More fundamentally, we struggle with the notion of what it is that we should be held liable for. Specifically, a 

credit rating is an opinion about future events—the likelihood that an issue or 

issuer will meet its credit obligations as they come due. Imposing a specific liability 

standard for failing to accurately predict the future in every case strikes us as an 

unwise approach. 

The first misconception is that rating agencies are free from liability and hide behind the First Amendment to shield them from legitimate securities law liability. 

Rating agencies may be held liable for securities fraud just as any person or entity 

may be (including accountants, lawyers, officers, directors, and securities analysts) 

to the extent that a rating agency intentionally or recklessly makes a material 

misstatement or omission in connection with the purchase or sale of a security. Of 

course, a plaintiff must prove securities fraud against a rating agency just as 

against any other defendant. The reality of U.S. securities law is that any plaintiff 

may make a claim against a rating agency under the antifraud provisions of the securities law, just as they can against accountants, lawyers, officers, directors and 

securities analysts, but they must prove their claims to the standard required under 

the securities law. 

Some also have criticized rating agencies for what they perceive as taking undue 

advantage of the First Amendment and its protection of free speech. We believe this 

is an overblown argument that fails to acknowledge key facts about the nature of 

ratings. We publish all of our ratings, accompanied by detailed published commentary about the companies and securities we rate. Fitch’s ratings are available 

free to anyone who has access to the Internet. The companies and securities we rate 

are of significant interest to investors of all types and other parties interested in 

the securities and the capital markets. Hundreds of investors, fiduciaries, government entities and other interested parties subscribe to our published commentary 

and thousands access our Web site daily. We believe Fitch enjoys the same freespeech rights as any other person or entity to comment on matters of public interest 

and to ‘‘make informed, thoughtful predictions about the future. That is no different 

from what newspapers or scholars do.’’ 2 We further believe that the manner in 

which we are paid and the nature of the securities we rate do not affect the essence 

of what we do or the free-speech rights we enjoy in connection with our work. 3

A second misconception centers on where the responsibility for full and complete 

disclosure about companies and securities, and appropriate due diligence to ensure 

the accuracy and adequacy thereof, should be placed. As discussed above, these obligations are today, and have been since the enactment of the earliest U.S. securities 

law, the sole responsibility of issuers, their officers and directors and underwriters. 
64 

The obligation to enforce these responsibilities falls squarely on the shoulders of the 

Securities and Exchange Commission and the courts. 

Some have proposed that rating agencies should be liable not merely for material 

misstatement, but for the investigation of rated securities and the verification of information. In one proposed bill, rating agencies would be liable for knowingly or 

recklessly failing to conduct such investigation or verification, which will cause rating agencies to be judged by whether, in hindsight, they could have reasonably done 

more. Because a plaintiff could base a claim on ‘‘you had to have known more could 

be done,’’ the effect is negligence based private rights of action. Even a requirement 

to plead with particularity might not be at all protective in this context. In hindsight, it will always look like a rating agency could have reasonably foreseen future 

problems with different assumptions and stress testing. 

While we believe some proposals are ill advised, Fitch has been and will continue 

to be constructively engaged with policy makers and regulators as they consider important ideas and questions about the oversight of credit rating agencies. Fitch has 

taken a number of important analytical and procedural steps already and we acknowledge there is more to do. We remain committed to enhancing the reliability 

and transparency of our ratings, and welcome all worthwhile ideas that aim to help 

us achieve that. 

PREPARED STATEMENT OF JAMES H. GELLERT 

PRESIDENT AND CHIEF EXECUTIVE OFFICER, 

RAPID RATINGS INTERNATIONAL, INC. 

AUGUST 5, 2009 

Overview 

Rapid Ratings International, Inc. (Rapid Ratings) would like to thank the U.S. 

Senate Committee on Banking, Housing, and Urban Affairs for inviting us to provide testimony to the critical subject of Rating Agency regulation. 

This is an essential topic for the global financial markets, U.S. citizens and residents who have been directly and indirectly affected by the actions of the large, incumbent rating agencies, and those newer ratings firms, like ours, that have built 

a viable alternative to the status quo. 

Rapid Ratings is a subscriber-paid firm. We utilize a proprietary, software-based 

system to rate the financial health of thousands of public and private companies and 

financial institutions quarterly. We use only financial statements, no market inputs, 

no analysts, and have no contact in the rating process with issuers, bankers or advisors. Our ratings far outperformed the traditional issuer-paid rating agencies in innumerable cases such as Enron, GM, Delphi, Parmalat, LyondellBasell, Pilgrim’s 

Pride, Linens ’N Things, and almost the entire U.S. Homebuilding industry. 

Currently, we are not a Nationally Recognized Statistical Rating Organization 

(NRSRO). We have not applied for the NRSRO status and do not have immediate 

plans to do so. At present, there are too many mixed messages coming from the 

SEC, Treasury and Congress for me to recommend to our shareholder that the designation is in their best interests. The Treasury proposal’s requirement that all ratings firms would be required to register is another curve ball in an already changing 

playing field. 

That said, we believe that reform in our industry is necessary and must happen 

with a sense of urgency. However, we caution that speed for speed’s sake may have 

significant, and counterproductive, unintended consequences. 

U.S. legislation and regulations have both global and national effects, hard lessons reinforced over the last 2 years. Despite years of legislative action on corporate 

governance, Sarbanes Oxley (2002), and the Credit Rating Agency Reform Act 

(2006), through a combination of conflict of interest, self-interest and, unfortunately, 

entrenched regulatory protection, issuer-paid rating agencies (principally S&P, 

Moody’s, and Fitch (the ‘‘Big Three’’)) facilitated a toxic asset flood that deluged the 

global markets, contributing to the worst economic crisis in 80 years. 

The SEC has been wrestling with new rules and rule amendments and has made 

some headway in areas of curbing conflicts of interest. Though not attacking and 

seeking to end the clearly conflicted issuer-pay revenue model, the Commission is 

taking some positive initiatives to curb the more egregious behavior evidenced by 

these conflicts. The new Department of Treasury proposal, however, takes multiple 

steps in the wrong direction and threatens to further solidify the entrenched position held by the Big Three, erecting further hurdles to competition in this industry. 

The Treasury proposals are misdirected in 5 areas: 
65 

1Spectrum Sports, Inc. v. McQuillan: ‘‘The purpose of the [Sherman] Act is not to protect 

businesses from the working of the market; it is to protect the public from the failure of the 

market. The law directs itself not against conduct which is competitive, even severely so, but 

against conduct which unfairly tends to destroy competition itself.’’ 

1. One-size does not fit all: Proposals designed to fix major deficiencies in the 

issuer-paid business model should not be loaded indiscriminately on to subscriber-paid agencies, thus increasing their costs, increasing barriers to entry, 

and reducing competition. 

2. Disclosure rules affecting intellectual property: The new rules must avoid requiring the forced disclosure of proprietary intellectual property. Appropriate 

safeguards must be introduced to protect intellectual property. 

3. Accuracy: It is unreasonable to believe the SEC can effectively be the arbiter 

on accuracy in the ratings industry. The market will decide very effectively 

which ratings are more accurate through usage of competing credit rating 

agencies (CRAs), as long as there are not barriers to entry protecting S&P, 

Moody’s, and Fitch, and disadvantaging new entrants or small rating agencies. 

4. Forcing NRSRO registration on all companies issuing ratings will force compliance costs on new CRAs thus erecting further barriers, potentially force small 

CRAs out of business and deter potential new capital sources entering this industry, all thereby undermining the growth of innovative and more accurate 

ratings technology. The vast number of firms captured by this sweeping net 

would not only confuse users of ratings, potentially hundreds of new agencies 

would be designated that would not have qualified as NRSROs under the Credit Rating Agency Reform Act of 2006. All of these would fuel the use of the 

largest brand names, and solidify regulatory protection of S&P, Moody’s, and 

Fitch. 

5. Rating Disclosure: Requiring subscriber-based rating agencies to disclose their 

history of ratings can undermine the subscriber-based business model which is 

predicated on selling current and past ratings to investors. The Treasury proposal covers all types of rating agencies and for 100 percent of their ratings. 

This erects a major barrier to competition by subscriber-based CRAs against 

the issuer-paid CRAs by stripping them of their revenues. This proposal may 

violate antitrust laws because the proposal undermines competition. 1

The Big Three have lobbied heavily to promote the notion that all business models 

carry conflicts of interest and therefore that theirs is no worse than any other. Can 

conflicts occur in other business models? Sure. Have conflicts in other business models contributed to a catastrophic financial disaster that taxpayers will be paying for 

dearly for years to come? No. This red herring cannot drive new legislation. The 

problem is not the potential behavior of the subscriber-paid rating agencies; rather 

it is the misbehaviors of the issuer-paid rating agencies that have already occurred. 

Effective legislation and regulatory framework must focus on reforming the 

issuer-paid model’s most negative features, providing oversight of the NRSROs that 

prevent the self-interested behavior that contributed to the current financial crises 

and creating an even playing field for competition. The latter has two major components: fostering (or at least not inhibiting) new players, methodologies, and innovation; and, equivalent disclosure of data used by other NRSROs for rating the highly 

complex instruments The Big Three have demonstrated are in dire need of alternative sources of opinion. 

Innovation and responsible alternatives to a status quo are both highly American 

traits. For true reform to have a fighting chance, these themes must be protected 

by the legislative framework for the ratings industry and we must be critically 

aware of how the unintended consequences of poorly implemented regulations can 

leave us with a broken system that has proven it is not deserving of protection. 

Much of the current legislative effort, including the SEC’s newest Rule Amendments, reproposed rule amendments, Treasury’s proposal and initiatives which we 

understand are underway on the Hill, are all concentrating on largely the same 

group of issues: 

• Ratings shopping 

• The consultative relationships between the issuer-paid rating agencies and 

issuers and their bankers 

• Access to the information used in due diligence of structured products 

• Disclosure of ratings history and actions 

• Ratings symbology for structured product ratings 

• New payment structures for ratings 
66 

• What entities should register as NRSROs 

• The existence of ratings in regulations 

Largely neglected in the proposals, rules and acts are the following: 

• Should the issuer-paid revenue model be abolished? 

• The consequences of rules targeting essentially three issuer-paid firms on the 

subscriber-paid businesses that are growing to provide competition and alternatives to investors 

• Accuracy of ratings 
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1See, Frank Partnoy, ‘‘How and Why Credit Rating Agencies Are Not Like Other Gatekeepers’’, (http://ssrn.com/abstract=900257) (May 2006). 2See, Bo Becker and Todd J. Milbourn, ‘‘Reputation and Competition: Evidence From the 

Credit Rating Industry’’, (Harv. Bus. School Fin. Working Paper No. 09-051) (2008) (available 

at http://ssrn.com/abstract=1278150) (finding that the percentage of investment grade ratings 

went up and the percentage of noninvestment grade ratings went down after competition intensified in the industry, beginning in the late 1990s). 

PREPARED STATEMENT OF JOHN C. COFFEE, JR. 

ADOLF A. BERLE PROFESSOR OF LAW, 

COLUMBIA UNIVERSITY LAW SCHOOL

AUGUST 5, 2009 

Chairman Dodd, Ranking Member Shelby, and fellow Senators: I am honored to 

be back before this Committee to discuss the proposed ‘‘Investor Protection Act of 

2009’’ and its provisions in Subtitle C (Improvement to the Regulation of Credit Rating Agencies). Frankly, I have Yogi Berra’s sense of ‘‘de ́ja` vu all over again’’ in reviewing this legislation, because it borrows very heavily from legislation introduced 

earlier this year by Senator Reed, which he called the ‘‘Rating Accountability and 

Transparency Enhancement Act of 2009.’’ Senator Reed (and his staff) crafted an 

important and constructive piece of legislation, and the Administration has wisely 

adopted most of it. 

Nonetheless, there are two respects in which the Administration’s proposals in my 

judgment fall short. Unless these two problems are better addressed, I am afraid 

that the current and unsatisfactory status quo will persist. Credit rating agencies 

are unlike the other major gatekeepers of the financial markets (e.g., accountants, 

investment banks, and securities analysts) in two critical respects: 

1. Unlike other gatekeepers, the credit rating agencies do not perform due diligence or make its performance a precondition of their ratings. In contrast, accountants are, quite literally, bean counters who do conduct audits. But the 

credit rating agencies do not make any significant effort to verify the facts on 

which their models rely (as they freely conceded to this Committee in earlier 

testimony here). Rather, they simply accept the representations and data provided them by issuers, loan originators, and underwriters. The problem this 

presents is obvious and fundamental: no model, however well designed, can 

outperform its information inputs—‘‘Garbage In–Garbage Out.’’ Although the 

Administration’s bill does address the need for due diligence, its current form 

(unlike the Reed bill) may actually discourage third party due diligence. Ultimately, unless the users of credit ratings believe that ratings are based on the 

real facts and not just a hypothetical set of facts, the credibility of ratings, particularly in the field of structured finance, will remain tarnished, and private 

housing finance in the U.S. will remain starved and underfunded because it 

will be denied access to the broader capital markets. 

2. Credit rating agencies have long and uniquely been immune from liability to 

their users. Unlike accountants or investment banks, they have never been 

held liable. At the same time, because the ‘‘issuer pays’’ business model of the 

ratings agencies seems likely to persist (despite the creative efforts of many 

who have sought to develop a feasible ‘‘user pays’’ model), we have to face the 

simple reality that the rating agencies have a built-in bias: they are a watchdog paid by the entities they are expected to watch. Because the ratings agencies receive an estimated 90 percent of their revenues from issuers who are 

paying for their ratings, 1 the agencies will predictably continue to have a 

strong desire to please the client who pays them. Moreover, the market for ratings has become more competitive, and the latest empirical research finds that, 

with greater competition, there has come an increased tendency to inflate ratings. 2 This is predictable—unless there is some countervailing pressure on the 

gatekeeper. In the case of accountants and underwriters, there clearly is such 

countervailing pressure in the form of the threat of liability under the Federal 

securities laws. But that threat has never had any discernable impact on the 

credit rating agencies. Let me make clear that I do not want to subject credit 

rating agencies to class action litigation every time a rating proves to be inaccurate. Rather, the goal should be more modest: to use a litigation threat to 

induce the rating agencies not to remain willfully ignorant and to insist that 

due diligence be conducted and certified to them with regard to structured finance offerings. 
86 

3See, Allen Ferrell, Jennifer Bethel, and Gang Hu, ‘‘Legal and Economic Issues in Litigation 

Arising From the 2007–2008 Credit Crisis’’, (Harvard Law & Economics Discussion Paper No. 

612, Harvard Law School Program in Risk Regulation Research Paper No. 08-5) at Table 4. 4See, E. Scott Reckard, ‘‘Subprime Mortgage Watchdogs Kept on Leash; Loan Checkers Say 

Their Warnings of Risk Were Met With Indifference’’, Los Angeles Times, March 17, 2008, at 

C-1. 5 Id. 

6 Id. 

I. The Disappearance of Due Diligence 

A rapid deterioration in underwriting standards for subprime mortgage loans occurred over a very short period, beginning around 2001. As the chart set forth below 

shows, low or no-document loans (also known in today’s parlance as ‘‘liar’s loans’’) 

rose from 28.5 percent in 2001 to 50.7 percent in 2005. 3

Concomitantly, interest-only loans (on which no amortization of principal occurred) 

rose from 0 percent in 2001 to 37.8 percent in 2005. These changes should have 

prompted the ratings agencies to downgrade their ratings on securitizations based 

on such loans—but they didn’t. As the housing bubble inflated, the ratings agencies 

slept. 

Two explanations are possible for their lack of response: (1) the ratings agencies 

willfully ignored this change, or (2) they managed not to learn about this decline, 

because issuers did not tell them and they made no independent inquiry. Prior to 

2000, the ratings agencies did have a reliable source of information about the quality of the collateral in securitization pools. During this period prior to 2000, investment banks did considerable due diligence on asset-backed securitizations by outsourcing this task to specialized ‘‘due diligence’’ firms. These firms (of which Clayton 

Holdings, Inc. was probably the best known) would send squads of loan reviewers 

(sometimes a dozen or more) to sample the loans in a securitized portfolio, checking 

credit scores and documentation. But the intensity of this due diligence review declined over recent years. The Los Angeles Times quotes the CEO of Clayton Holdings 

to the effect that: 

Early in the decade, a securities firm might have asked Clayton to review 

25 percent to 40 percent of the subprime loans in a pool, compared with 

typically 10 percent in 2006 . . . 4

The President of a leading rival due diligence firm, the Bohan Group, made an even 

more revealing comparison: 

By contrast, loan buyers who kept the mortgages as an investment instead 

of packaging them into securities would have 50 percent to 100 percent of 

the loans examined, Bohan President Mark Hughes said. 5

In short, lenders who retained the loans checked the borrowers carefully, but the 

investment banks decreased their investment in due diligence, making only an increasingly cursory effort as the bubble inflated. 

The actual loan reviewers employed by these firms also told the above-quoted Los 

Angeles Times reporter that supervisors in these firms would often change documentation in order to avoid ‘‘red-flagging mortgages.’’ These employees also report 

regularly encountering inflated documentation and ‘‘liar’s loans,’’ but, even when 

they rejected loans, ‘‘loan buyers often bought the rejected mortgages anyway.’’ 6 In 

short, even when the watchdog barked, no one at the investment banks truly paid 

attention, and no one told the rating agencies. 
87 

7See, 17 C.F.R. §270.3a-7. 8See, 17 C.F.R. §270.2a-7. 

If mortgage-backed securitizations are again to become credible, ratings agencies 

must be able to distinguish (and verify) whether an asset pool consists mainly of 

‘‘liar’s loans’’ or is instead composed of loans made to creditworthy borrowers. This 

requires the restoration of due diligence—presumably by independent, third party 

due diligence firms. 

Both the Administration bill and the earlier Reed bill make an effort to restore 

due diligence, but the impact of the Administration’s bill is uncertain and possibly 

even counterproductive. In proposed Section 932(s)(3)(D) (‘‘Transparency of Credit 

Rating Methodologies and Information Reviewed’’), the Administration bill requires 

disclosure of: 

whether and to what extent third party due diligence services have been 

utilized, and a description of the information that such thirty party reviewed in conducting due diligence services. 

Then, in Section 932(s)(5) (Due Diligence Services), the Administration bill requires 

that where 

third-party due diligence services are employed by a nationally recognized 

statistical rating organization or an issuer or underwriter, the firm providing the due diligence services shall provide to the [NRSRO] written certification of the due diligence, which shall be subject to review by the Commission. 

This makes great sense—except for the fact that it is optional. The issuer or underwriter (who will likely be the parties retaining and compensating the due diligence firm) may decide that it is easier not to retain such an outside firm than to 

have to describe its procedures and the information it reviewed and then provide 

a certification to the ratings agency. In full compliance with §932(s)(3)(D), it could 

answer that third party firms were not used. To make this appear more palatable, 

the underwriter might describe some internal review procedures that were followed 

by its own staff (which would not trigger any mandatory certification to the rating 

agency). In short, given the choice, issuers and underwriters might prefer the easier 

course of doing nothing, and thus the current opacity surrounding structured finance offerings would persist. To be sure, some rating agencies might insist on third 

party due diligence (at least for a period of time), but they might thereby place 

themselves at a competitive disadvantage and lose business until they gave in. 

How then can the use of third party due diligence be more effectively encouraged? 

One very feasible approach might be to focus on the users of credit ratings, for example by instructing mutual funds and other institutional investors that they could 

not rely on a rating issued by an NRSRO for purposes of their own need to comply 

with their own ‘‘prudent man’’ fiduciary obligations unless the ratings was explicitly 

based on third party due diligence. This would avoid any conceivable Constitutional 

issue, because Congress would not be mandating procedures for the NRSRO, but instead would be telling institutional investors what they needed to rely upon. To illustrate this approach, let me give two examples: Under current Rule 3a-7 under 

the Investment Company Act exempts fixed-income securities issued by a special 

purpose vehicle from the Investment Company Act if, at the time of sale, the securities are rated in one of four highest categories of investment quality by an NRSRO. 7

Congress could simply instruct the SEC that such an exemption should also require 

that the requisite investment grade rating be based on third party due diligence 

that was certified to the rating agency pursuant to Section 932(s)(5). Similarly, Rule 

2a-7 (‘‘Money Market Funds’’) under the same Act defines an ‘‘Eligible Security’’ as 

one that has a specified rating given by an NRSRO. 8 If this rule required that the 

rating be based in addition on a due diligence certification, money market funds 

would be effectively required to demand that NRSROs receive such certifications. 

The attraction of this approach is that it does not mandate what the NRSRO must 

do, but instead tells the users of ratings what they must have. Effectively, issuers, 

underwriters and NRSROs would know that they had to use a due diligence firm 

to verify the critical information assumed by the rating agency’s model in they intended to sell the offering to these institutions. 

A second approach to this same end could be achieved through the reformulation 

of liability rules, as next described. 

II. Using Liability To Compel Due Diligence 

The most serious failing in the proposed legislation is that it ducks the issue of 

enforcement and relies solely on SEC monitoring and disclosure. Even if we assume 
88 

9 Recently, a number of securities class actions have included rating agencies as defendants. 

In a few cases, Federal courts have refused to grant motions to dismiss sought by the ratings 

agency. See, e.g., In re Moody’s Corp. Sec. Litig., 599 F. Supp. 2d 493 (S.D.N.Y. 2009); In re 

National Century Financial Enterprises Inc. Invest. Litig., 580 F. Supp. 2d 630 (S.D. Ohio 2008). 

But this simply means that the plaintiff has survived the first round in a long fight. My discussions with plaintiffs attorneys suggest that they see the underwriters as the ‘‘deep pocket’’ defendant in these cases and are not expecting significant contributions from the rating agencies, 

given the many legal obstacles to suing them. 10See, Newby v. Enron Corporation, 511 F. Supp. 2d 741, 815–817 (S.D. Tex. 2005). 11See, Staff of the S. Comm. on Governmental Affairs, 107 Cong., Report: Financial Oversight 

of Enron: The SEC and Private-Sector Watchdogs (Comm. Print Oct. 8, 2002) at 104–05. In particular, Rule 436(g) under the Securities Act of 1933 specifically exempts the ratings agencies 

from liability as an expert under Section 11 of that Act. 12See, Frank Partnoy, ‘‘The Paradox of Credit Ratings’’, In Ratings, Rating Agencies, and the 

Global Financial System, (Richard Levich, et al., eds. 2002) at 79; See, also First Equity Corp. 

v. Standard & Poor’s Corp., 869 F.3d 175 (2d Cir. 1999) (rejecting common law theories under 

New York and Florida law). 13See, Section 15E(c)(2) of the Securities Exchange Act of 1934 (discussed infra), 15 U.S.C. 

§78o-7(c)(2). 

that the SEC will always be vigilant (which may be a heroic assumption after the 

Madoff debacle), the SEC is not given any clear authority to mandate due diligence. 

Moreover, over the last decade, we have seen the rating agencies behave in a manner that approached willful ignorance about changes in the credit environment that 

were clear to almost everyone else. 

Here, a balance must be struck. Ratings agencies appear never to have been held 

liable under the Federal securities laws. 9 Even in the Enron litigation, a proceeding in which underwriters paid over $7 billion in settlements, the credit rating agencies 

escaped liability. 10 Although it is not possible to be aware of every possible settlement in Federal or State court, recent surveys by legal scholars continue to reach 

this same conclusion. See, e.g., Frank Partnoy, Rethinking Regulation of Credit Rating Agencies: An Institutional Investor Perspective (Council of Institutional Investors White Paper April 2009) at 14–15; Kenneth Kettering,‘‘ Securitization and Its 

Discontents: The Dynamics of Financial Product Development’’, 29 Cardozo L. Rev. 

1553, 1687–93 (2008); Arthur R. Pinto, ‘‘Control and Responsibility of Credit Rating 

Agencies in the U.S.’’, 54 Am. J. Comp. L. 341, 351–356 (2006). As a Congressional 

staff study found in 2002, the rating agencies that qualify as NRSROs are legislatively shielded from liability under the Federal securities laws. 11 The First Amendment defense is only one of many defenses relied upon by the industry, and probably 

not the most important. Yet, although many tort law theories have been attempted 

by plaintiffs, ‘‘the only common element . . . is that the rating agencies win.’’ 12

Since the 2006 legislation, the ratings industry now takes the position that that legislation preempted State tort law and thus precludes even fraud actions based on 

the common law. 13 In short, while a settlement may have been paid somewhere in 

the recent flurry of litigation, the risk of liability for ratings agencies remains remote. 

This does not mean, however, that we should seek to maximize liability. Clearly, 

the rating agencies cannot be insurers of credit quality and could conceivably be 

drowned under a sea of liability if the liability rules were greatly liberalized. Precisely for that reason, Senator Reed’s bill struck a very sensible compromise in my 

judgment. It created a standard of liability for the rating agencies, but one with 

which they easily could comply (if they tried). Specifically, his bill contained a Section 4 (‘‘State of Mind in Private Actions’’) that permitted an action against a credit 

rating agency where: 

the complaint shall state with particularity facts giving rise to a strong inference that the [rating agency] knowingly or recklessly failed either to conduct a reasonable investigation of the rated security with respect to the factual elements relied upon by its own methodology for evaluating credit risk, 

or to obtain reasonable verification of such factual elements (which 

verification may be based on a sampling technique that does not amount 

to an audit) from other sources that it considered to be competent and that 

were independent of the issuer and underwriter. 

This language does not truly expose rating agencies to any serious risk of liability— 

at least if they either conduct a reasonable investigation themselves or obtain 

verification from others (such as a due diligence firm) that they reasonably believed 

to be competent and independent. 

Given the express certification requirement in the proposed legislation, this language could be picked up and incorporated into an updated revision of the above 

language in the Reed bill, so that a rating agency would be fully protected when 
89 

it received such a certification from an independent due diligence firm that covered 

the basic factual elements in its model. Arguably, this entire liability provision could 

be limited to structured finance offerings, which is where the real problems lie. 

The case for this limited litigation threat is that it is unsafe and unsound to let 

rating agencies remain willfully ignorant. Over the last decade, they have essentially been issuing hypothetical ratings in structured finance transactions based on 

hypothetical assumed facts provided them by issuers and underwriters. Such conduct is inherently reckless; the damage that it caused is self-evident, and the proposed language would end this state of affairs (without creating anything approaching liability for negligence). 

III. Drafting Suggestions 

There are some ambiguities and inconsistencies in the draft bill that should be 

corrected: 

1. First, there is a clear inconsistency between the amendment to Section 

15E(c)(2), which would continue to state that: 

Notwithstanding any other provision of law, neither the Commission nor 

any State (or political subdivision thereof) may regulate the substance of 

credit ratings or the procedures and methodologies by which any [NRSRO] 

determines credit ratings. 

and proposed Section 932(r), which provides that: 

The Commission shall prescribe rules . . . with respect to the procedures 

and methodologies, including qualitative and quantitative models, used by 

[NRSROs] that require each [NRSRO] to . . . 

This conflict is dangerous, and it might be cured in part by stating in §15E(c)(2) 

that: ‘‘except as otherwise specifically provided in this title, neither the Commission 

nor any State . . . may regulate . . . .’’ Even more importantly, Congress should 

realize that, whatever it may have intended, the ratings industry is arguing in court 

that this language in Section 15E(c) also preempts common law claims for fraud and 

negligence. If Congress did not intend to preempt the common law, it should correct 

this looming misinterpretation and limits its preemption provision so that it does 

not reach the common law. If fraud can be proven under State law or Blue Sky statutes, such an action should not be preempted. 

2. Under existing Section 15E(d), the SEC may censure, suspend (and now fine) 

an NRSRO for limited reasons only. The last and residual clause (Section 15E(d)(5)) 

says that such discipline or suspension may be invoked if the NRSRO ‘‘fails to maintain adequate financial and managerial resources to consistently produce credit ratings with integrity.’’ This is too high a standard and also too narrow a standard. 

With the revisions to be made by this legislation, an NRSRO will also be expected 

to maintain conflict of interest policies and to comply with the SEC’s new procedural 

and disclosure rules under Sections 932 and 933. Hence, this Section should be 

broadened to read: 

(5) failed to (i) operate in substantial compliance with the rules promulgated by the Commission, (ii) maintain adequate financial and managerial 

resources to consistently produce credit ratings with integrity, or (iii) demonstrate sufficient competence or accuracy to justify continued reliance by 

investors upon its ratings. 

The last clause would also entitle the Commission to discipline, suspend, or revoke 

the registration of a ratings agency that was systematically inaccurate or inferior 

over a sustained period. An incompetent ratings agency does not merit tenure. 

3. Proposed §934 requires the SEC to adopt rules requiring issuers to disclose 

‘‘preliminary credit ratings received’’ from NRSROs. Because the term ‘‘preliminary 

credit rating’’ is not defined, this rule could be easily sidestepped if the NRSRO gave 

the issuer instead a general (or even a specific) description of how it would evaluate 

the issuer’s credit, but not an actual or tentative rating. Hence, it would be advisable to broaden this section so that it required disclosure of ‘‘preliminary credit ratings or any other assessment or information that informed the issuer of the likely 

range within which it would be rated or the likely outcome of the rating process.’’ 

4. If we want the ratings agency to rely on more than the facts provided by the 

issuer or underwriter, consideration should be given to expanding the required disclosures under §932(s)(3)(E). For example, the new form specified by that Section 

should require disclosure of: 

(E) a description of all relevant data, from whatever source learned or received, about any obligor, issuer, security, or money market instrument 

that was used and relied upon, or considered but not relied upon, for the 
90 

1 Because of subsequent prodding by the Congress, and then the specific barrier-reduction provisions of the Credit Rating Agency Reform Act of 2006, there are now ten NRSROs. 

purpose of determining the credit rating, indicating the source of such information; 

This is an admittedly broad provision, but aimed at making it more difficult for the 

rating agency to ignore information from third parties. 

5. Consideration should be given to requiring the new compliance officer (which 

each NRSRO will be required to employ under this legislation) to provide any credible information that it learns indicating fraudulent or unlawful behavior to an appropriate law enforcement agency and/or the SEC. This is in effect a mandatory 

whistle-blowing provision, and exceptions could be created to cover circumstances 

when the compliance officer concluded that the information was false or unreliable. 

PREPARED STATEMENT OF LAWRENCE J. WHITE 

LEONARD E. IMPERATORE PROFESSOR OF ECONOMICS, 

NEW YORK UNIVERSITY

AUGUST 5, 2009 

Chairman Dodd, Ranking Member Shelby, and Members of the Committee: My 

name is Lawrence J. White, and I am a Professor of Economics at the NYU Stern 

School of Business. During 1986–1989 I served as a Board Member on the Federal 

Home Loan Bank Board. Thank you for the opportunity to testify today on this important topic. I have appended to this statement for the Committee a longer Statement that I delivered at the Securities and Exchange Commission’s (SEC) ‘‘Roundtable’’ on the credit rating agencies on April 15, 2009, which I would like to have 

incorporated for the record into the statement that I am presenting today. 

The three large U.S.-based credit rating agencies—Moody’s, Standard & Poor’s, 

and Fitch—and their excessively optimistic ratings of subprime residential mortgage-backed securities (RMBS) in the middle years of this decade played a central 

role in the financial debacle of the past 2 years. Given this context and history, it 

is understandable that there would be strong political sentiment—as expressed in 

the proposals by the Obama administration, as well as by others—for more extensive regulation of the credit rating agencies in hopes of forestalling future such 

debacles. The advocates of such regulation want (figuratively) to grab the rating 

agencies by the lapels, shake them, and shout ‘‘Do a better job!’’ 

This urge for greater regulation is understandable—but it is misguided and potentially quite harmful. The heightened regulation of the rating agencies is likely to 

discourage entry, rigidify a specified set of structures and procedures, and discourage innovation in new ways of gathering and assessing information, new technologies, new methodologies, and new models (including new business models)—and 

may well not achieve the goal of inducing better ratings from the agencies. Ironically, it will also likely create a protective barrier around the incumbent credit rating agencies. 

There is a better route. That route starts with the recognition that the centrality 

of the three major rating agencies for the bond information process was mandated 

by more than 70 years of prudential financial regulation of banks and other financial institutions. In essence, regulatory reliance on ratings—for example, the prohibition on banks’ holding ‘‘speculative’’ bonds, as determined by the rating agencies’ 

ratings—imbued these third-party judgments about the creditworthiness of bonds 

with the force of law! This problem was compounded when the SEC created the category of ‘‘nationally recognized statistical rating organization’’ (NRSRO) in 1975 and 

subsequently became a barrier to entry into the rating business. As of year-end 2000 

there were only three NRSROs: Moody’s, Standard & Poor’s, and Fitch. 1

It should thus come as no surprise that when this (literal) handful of rating firms 

stumbled badly in their excessively optimistic ratings of the subprime RMBS, the 

consequences were quite serious. 

This recognition of the role of financial regulation in forcing the centrality of the 

major rating agencies then leads to an alternative prescription: Eliminate regulatory 

reliance on ratings—eliminate the ratings’ force of law—and bring market forces to 

bear. Since the bond markets are primarily institutional markets (and not a retail 

securities market, where retail customers are likely to need more help), market 

forces can be expected to work—and the detailed regulation that has been proposed 

would be unnecessary. Indeed, if regulatory reliance on ratings were eliminated, the 
91 

2 It is worth noting that three smaller U.S.-based NRSRO rating agencies have ‘‘investor 

pays’’ business models and that the ‘‘investor pays’’ model was the original model for John 

Moody and for the industry more generally, until the major rating agencies switched to the 

‘‘issuer pays’’ model in the early 1970s. 3 It is important to remember, however, that the major credit rating agencies switched to the 

‘‘issuer pays’’ model in the early 1970s, and that the serious problems only arose three decades 

later. Apparently, the agencies’ concerns for their long-run reputations and the transparency 

and multiplicity of issuers prior to the current decade all served to keep the potential conflictof-interest problems in check during those three intervening decades. 4This complaint has been present for decades. It surfaced strongly in the wake of the Enron 

bankruptcy in November 2001, with the revelation that the major rating agencies had maintained ‘‘investment grade’’ ratings on Enron’s debt until 5 days before that company’s bankContinued 

entire NRSRO superstructure could be dismantled, and the NRSRO category could 

be eliminated. 

The regulatory requirements that prudentially regulated financial institutions 

must maintain safe bond portfolios should remain in force. But the burden should 

be placed directly on the regulated institutions to demonstrate and justify to their 

regulators that their bond portfolios are safe and appropriate—either by doing the 

research themselves, or by relying on third-party advisors. Since financial institutions could then call upon a wider array of sources of advice on the safety of their 

bond portfolios, the bond information market would be opened to innovation and 

entry in ways that have not been possible since the 1930s. 

My appended April 15 Statement for the SEC provides greater elaboration on 

many of these points. Since that Statement preceded the Obama administration’s 

specific proposals for further regulation of the credit rating agencies, I will expand 

here on the drawbacks of those proposals. 

The proposals—as found initially in the Administration’s Financial Regulatory Reform: A New Foundation (p. 46) that was released in mid June, and then in the 

specific legislative proposals that were released on July 21—are devoted primarily 

to efforts to increase the transparency of ratings and to address issues of conflicts 

of interest. The latter arise largely from the major rating agencies’ business model 

of relying on payments from the bond issuers in return for rating their bonds. 2

These proposals expand and elaborate on a set of regulations that the SEC has recently implemented. 

Again, the underlying urge to ‘‘do something’’ in the wake of the mistakes of the 

major credit rating agencies during the middle years of this decade is understandable. Further, the ‘‘issuer pays’’ business model of those rating agencies presents an 

obvious set of potential conflict-of-interest problems that appear to be crying out for 

correction. 3

Nevertheless, the dangers of the proposals are substantial. They ask the SEC to 

delve ever deeper into the processes and procedures and methodologies of credit ratings—of providing judgments about the creditworthiness of bonds and bond issuers. 

In so doing, the proposals (if enacted) are likely to rigidify the industry along the 

lines of whatever specific implementing regulations that the SEC devises, as well 

as raising the costs of being a credit rating agency. In so doing, the proposals will 

discourage entry and innovation in new ways of gathering and assessing information, in new methodologies, in new technologies, and in new models—including new 

business models. 

There is one especially worrisome provision in the specific legislation that was 

proposed in July (and that was absent in the earlier June proposals) that is guaranteed to discourage entry: the requirement that all credit rating agencies should register as NRSROs with the SEC. This requirement would seem to encompass the 

independent consultant who offers bond investment recommendations to clients 

(such as hedge funds or bond mutual funds), as well as any financial services company that employs fixed income analysts whose recommendations become part of 

the services that the company offers to clients. 

This provision, if enacted, will surely discourage entry into the broader bond information business, as well as encouraging the exit of existing providers of information. 

Ironically, it will likely become a new protective barrier around the incumbent credit 

rating agencies (when, again ironically, the Credit Rating Agency Reform Act of 

2006 was intended to tear down the earlier barrier to entry that the SEC had erected when it create the NRSRO category in 1975). This can’t be a good way of encouraging new and better information for the bond market. 

Further, it is far from clear that the proposals will actually achieve their goal of 

improving ratings. One common complaint against the large agencies is that they 

are slow to adjust their ratings in response to new information. 4 But this appears 
92 

ruptcy filing. More recently, the major agencies had ‘‘investment grade’’ ratings on Lehman 

Brothers’ debt on the day that it filed for bankruptcy. 

* Lawrence J. White is professor of economics at the NYU Stern School of Business. During 

1986–1989 he was a board member on the Federal Home Loan Bank Board. This statement 

draws heavily on a forthcoming article, ‘‘The Credit Rating Agencies and the Subprime Debacle’’, 

in the journal Critical Review. 

to be a business culture phenomenon for the agencies (which was present, as well, 

in the pre-1970’s era when the rating agencies had an ‘‘investor pays’’ business 

model). As for the kind of over-optimism about the RMBS in this decade that subsequently created such serious problems, the rating agencies were far from alone in 

‘‘drinking the Kool-Aid’’ that housing prices could only increase and that even 

subprime mortgages consequently would not have problems. It is far from clear that 

the proposed regulations would have curbed such herd behavior. Also, the incumbent rating agencies are quite aware of the damage to their reputations that have 

occurred and have announced measures—including increased transparency and enhanced efforts to address potential conflicts—to repair that damage. 

The Obama administration’s proposals do—briefly—entertain the possibility of reducing regulatory reliance on ratings. But this seems to be largely lip service, embodied in promises that the Administration will examine the possibilities. The only 

specific provision on this point in the proposed legislation is a requirement for the 

U.S. Government Accountability Office (GAO) to undertake a study and deliver a 

report. Also, the reference in the proposals is to ‘‘reduction’’ rather than to elimination; and there seems to be no recognition that even a reduction of regulatory reliance on ratings would represent a movement in the opposite direction from increasing the regulation of the credit rating agencies. 

In sum, the proposals of the Obama administration with respect to the reform of 

the credit rating agencies are deeply flawed and wrongheaded. There is a better 

route: Eliminate regulatory reliance on ratings—eliminate the force of law that has 

been accorded to these third-party judgments. The institutional participants in the 

bond markets could then more readily (with appropriate oversight by financial regulators) make use of a wider set of providers of information, and the bond information market would be opened to new ideas and new entry in a way that has not 

been possible for over 70 years. 

Thank you again for the opportunity to appear before this Committee, and I 

would be happy to respond to any questions from the Committee. 

Attachment 

STATEMENT BY LAWRENCE J. WHITE* FOR THE SECURITIES AND EXCHANGE

COMMISSION ‘‘ROUNDTABLE TO EXAMINE OVERSIGHT OF CREDIT RATING AGENCIES’’ 

Washington, DC——April 15, 2009 

Summary 

The three major credit rating agencies—Moody’s, Standard & Poor’s, and Fitch— 

played a central role in the subprime mortgage debacle of 2007–2008. That centrality was not accidental. Seven decades of financial regulation propelled these rating agencies into the center of the bond information market, by elevating their judgments about the creditworthiness of bonds so that those judgments attained the 

force of law. The Securities and Exchange Commission exacerbated this problem by 

erecting a barrier to entry into the credit rating business in 1975. Understanding 

this history is crucial for any reasoned debate about the future course of public policy with respect to the rating agencies. 

The Securities and Exchange Commission has recently (in December 2008) taken 

modest steps to expand its regulation of the industry. Further regulatory efforts by 

the SEC and/or the Congress would not be surprising. 

There is, however, another direction in which public policy could proceed: Financial regulators could withdraw their delegation of safety judgments to the credit rating agencies. The goal of safe bond portfolios for regulated financial institutions 

would remain. But the financial institutions would bear the burden of justifying the 

safety of their bond portfolios to their regulators. The bond information market 

would be opened to new ideas about rating methodologies, technologies, and business models and to new entry in ways that have not been possible since the 1930s. 

‘‘an insured State savings association . . . may not acquire or retain any 

corporate debt securities not of investment grade.’’ 12 Code of Federal Regulations §362.11 
93 

1Overviews of the credit rating industry can be found in, e.g., Cantor and Packer (1995), 

Partnoy (1999, 2002), Richardson and White (2009), Sylla (2002), and White (2002, 2002–2003, 

2006, 2007). 2The rating agencies favor that term because it allows them to claim that they are ‘‘publishers’’ and thus enjoy the protections of the First Amendment of the U.S. Constitution (e.g., 

when the agencies are sued by investors and issuers who claim that they have been injured by 

the actions of the agencies). 3For short-term obligations, such as commercial paper, a separate set of ratings is used. 

4Dun & Bradstreet bought Moody’s firm in 1962; subsequently, in 2000, Dun & Bradstreet 

spun off Moody’s as a free-standing corporation. 5Poor’s and Standard merged in 1941, to form S&P; S&P was absorbed by McGraw-Hill in 

1966. 6Fitch merged with IBCA (a British firm) in 1997, and the combined firm was subsequently 

bought by FIMILAC, a French business services conglomerate. 

‘‘any user of the information contained herein should not rely on any credit 

rating or other opinion contained herein in making any investment decision.’’ The usual disclaimer that is printed at the bottom of Standard & 

Poor’s credit ratings 

Introduction 

The U.S. subprime residential mortgage debacle of 2007–2008, and the world financial crisis that has followed, will surely be seen as a defining event for the U.S. 

economy—and for much of the world economy as well—for many decades in the future. Among the central players in that debacle were the three large U.S.-based 

credit rating agencies: Moody’s, Standard & Poor’s (S&P), and Fitch. 

These three agencies’ initially favorable ratings were crucial for the successful 

sale of the bonds that were securitized from subprime residential mortgages and 

other debt obligations. The sale of these bonds, in turn, were an important underpinning for the U.S. housing boom of 1998–2006—with a self-reinforcing price-rise 

bubble. When house prices ceased rising in mid 2006 and then began to decline, the 

default rates on the mortgages underlying these bonds rose sharply, and those initial ratings proved to be excessively optimistic—especially for the bonds that were 

based on mortgages that were originated in 2005 and 2006. The mortgage bonds collapsed, bringing down the U.S. financial system and many other countries’ financial 

systems as well. 

The role of the major rating agencies has received a considerable amount of attention in Congressional hearings and in the media. Less attention has been paid to 

the specifics of the regulatory structure that propelled these companies to the center 

of the U.S. bond markets. But an understanding of that structure is essential for 

any reasoned debate about the future course of public policy with respect to the rating agencies. 1

Background 

A central concern of any lender—including investors in bonds—is whether a potential or actual borrower is likely to repay the loan. Lenders therefore usually 

spend considerable amounts of time and effort in gathering information about the 

creditworthiness of prospective borrowers and also in gathering information about 

the actions of borrowers after loans have been made. 

The credit rating agencies offer judgments—they prefer the word ‘‘opinions’’ 2— 

about the credit quality of bonds that are issued by corporations, governments (including U.S. State and local governments, as well as ‘‘sovereign’’ issuers abroad), 

and (most recently) mortgage securitizers. These judgments come in the form of ratings, which are usually a letter grade. The best known scale is that used by S&P 

and some other rating agencies: AAA, AA, A, BBB, BB, etc., with pluses and 

minuses as well. 3 Credit rating agencies are thus one potential source of such information for bond investors; but they are far from the only potential source. 

The history of the credit rating agencies and their interactions with financial regulators is crucial for an understanding of how the agencies attained their current 

central position in the market for bond information. 

Some History 

John Moody published the first publicly available bond ratings (mostly concerning 

railroad bonds) in 1909. Moody’s firm 4 was followed by Poor’s Publishing Company 

in 1916, the Standard Statistics Company in 1922, 5 and the Fitch Publishing Company in 1924. 6 These firms’ bond ratings were sold to bond investors, in thick rating 

manuals. In the language of modern corporate strategy, their ‘‘business model’’ was 

one of ‘‘investor pays.’’ In an era before the Securities and Exchange Commission 

(SEC) was created (in 1934) and began requiring corporations to issue standardized 
94 

7This rule still applies to banks today. This rule did not apply to savings institutions until 

1989. Its application to savings institutions in 1989 forced them to sell substantial holdings of 

‘‘junk bonds’’ (i.e., below investment grade) at the time, causing a major slump in the junk bond 

market. 8 Also, in the early 1990s, the SEC again made use of the NRSROs’ ratings when it established safety requirements for the short-term bonds (e.g., commercial paper) that are held by 

money market mutual funds. 9The SEC bestowed the NRSRO designation on Duff & Phelps in 1982, on McCarthy, Crisanti 

& Maffei in 1983, on IBCA in 1991, and on Thomson BankWatch in 1992. 

financial statements, Moody and the firms that subsequently entered were clearly 

meeting a market demand for their information services. 

A major change in the relationship between the credit rating agencies and the 

U.S. bond markets occurred in the 1930s. Eager to encourage banks to invest only 

in safe bonds, bank regulators issued a set of regulations that culminated in a 1936 

decree that prohibited banks from investing in ‘‘speculative investment securities’’ 

as determined by ‘‘recognized rating manuals.’’ ‘‘Speculative’’ securities were bonds 

that were below ‘‘investment grade.’’ Thus, banks were restricted to holding only 

bonds that were ‘‘investment grade’’ (e.g., bonds that were rated BBB or better on 

the S&P scale). 7

This regulatory action importantly changed the dynamic of the bond information 

market. Banks were no longer free to act on information about bonds from any 

source that they deemed reliable (albeit within constraints imposed by oversight by 

bank regulators). They were instead forced to use the judgments of the publishers 

of the ‘‘recognized rating manuals’’ (i.e., Moody’s, Poor’s, Standard, and Fitch). Further, since banks were important participants in the bond markets, perforce other 

participants would want to pay attention to the bond raters’ pronouncements as 

well. 

On the regulatory side of this process, rather than the bank regulators’ using 

their own internal resources to form judgments about the safety of the bonds held 

by banks (which the bank regulators continued to do with respect to the other kinds 

of loans made by banks), the regulators had effectively delegated—‘‘outsourced’’ 

(again using the language of modern corporate strategy)—to the rating agencies 

their safety judgments about bonds that were suitable for banks’ portfolios. Equivalently, the creditworthiness judgments of these third-party raters had attained the 

force of law. 

In the following decades, the insurance regulators of the 48 (and eventually 50) 

States followed a similar path: The State regulators wanted their regulated insurance companies to have adequate capital (in essence, net worth) that was commensurate with the riskiness of the companies’ investments. To achieve this goal, the 

regulators established minimum capital requirements that were geared to the ratings on the bonds in which the insurance companies invested—the ratings, of 

course, coming from that same small group of rating agencies. Once again, an important set of regulators had delegated their safety decisions to the credit rating 

agencies. And in the 1970s, Federal pension regulators pursued a similar strategy. 

These additional delegations of safety judgments to the rating agencies meant 

that the latter’s centrality for bond market information was further strengthened. 

The SEC crystallized the rating agencies’ centrality in 1975. In that year the SEC 

decided to set minimum capital requirements for broker-dealers (i.e., securities 

firms). Following the pattern of the other financial regulators, it wanted those capital requirements to be sensitive to the riskiness of the broker-dealers’ asset portfolios and hence wanted to use bond ratings as the indicators of risk. But it worried 

that references to ‘‘recognized rating manuals’’ were too vague and that a ‘‘bogus’’ 

rating firm might arise that would promise ‘‘AAA’’ ratings to those companies that 

would suitably reward it and ‘‘DDD’’ ratings to those that would not; and if a 

broker-dealer chose to claim that those ratings were ‘‘recognized,’’ the SEC might 

have difficulties challenging this assertion. 

To deal with this problem, the SEC created a wholly new category—‘‘nationally 

recognized statistical rating organization’’ (NRSRO)—and immediately ‘‘grandfathered’’ Moody’s, S&P, and Fitch into the category. The SEC declared that only 

the ratings of NRSROs were valid for the determination of the broker-dealers’ capital requirements. The other financial regulators soon adopted the SEC’s NRSRO 

category and the rating agencies within it as the relevant sources of the ratings that 

were required for evaluations of the bond portfolios of their regulated financial institutions. 8

Over the next 25 years the SEC designated only four additional firms as 

NRSROs; 9 but mergers among the entrants and with Fitch caused the number of 

NRSROs to return to the original three by year-end 2000. In essence, the SEC had 

become a significant barrier to entry into the bond rating business, because the 
95 

10The SEC’s barriers were not absolute. A few smaller rating firms—notably KMV, EganJones, and Lace Financial—were able to survive, despite the absence of NRSRO designations. 

KMV was absorbed by Moody’s in 2000. 11Other examples of ‘‘two-sided’’ information markets include newspapers and magazines, 

where business models range from ‘‘subscription revenues only’’ (e.g., Consumer Reports) to ‘‘a 

mix of subscription revenues plus advertising revenues’’ (most newspapers and magazines) to 

‘‘advertising revenues only’’ (e.g., The Village Voice, some metropolitan ‘‘giveaway’’ daily newspapers, and some suburban weekly ‘‘shoppers’’). 12Skreta and Veldkamp (2008) develop a model in which the ability of issuers to choose 

among potential raters leads to overly optimistic ratings, even if the raters are all trying honestly to estimate the creditworthiness of the issuers. In their model, the raters can only make 

estimates of the creditworthiness of the issuers, which means that their estimates will have errors. If the estimates are (on average) correct and the errors are distributed symmetrically (i.e., 

the raters are honest but less than perfect), but the issuers can choose which rating to purchase, 

the issuers will systematically choose the most optimistic. In an important sense, it is the 

issuers’ ability to select the rater that creates the conflict of interest. 13The rating agencies were similarly slow to recognize the weakened financial condition of 

WorldCom, and were subsequently grilled about that as well. 

NRSRO designation was important for any potential entrant. Without the NRSRO 

designation, any would-be bond rater would likely be ignored by most financial institutions; and, since the financial institutions would ignore the would-be bond rater, 

so would bond issuers. 10

In addition, the SEC was remarkably opaque in its designation process. It never 

established criteria for a firm to be designated as a NRSRO, never established a 

formal application and review process, and never provided any justification or explanation for why it ‘‘anointed’’ some firms with the designation and refused to do so 

for others. 

One other piece of history is important: In the early 1970s the basic business 

model of the large rating agencies changed. In place of the ‘‘investor pays’’ model 

that had been established by John Moody in 1909, the agencies converted to an 

‘‘issuer pays’’ model, whereby the entity that is issuing the bonds also pays the rating firm to rate the bonds. 

The reasons for this change of business model have not been established definitively. Among the candidates are: 

a. The rating firms feared that their sales of rating manuals would suffer from 

the consequences of the high-speed photocopy machine (which was just entering widespread use), which would allow too many investors to free-ride by obtaining photocopies from their friends; 

b. The bankruptcy of the Penn-Central Railroad in 1970 shocked the bond markets and made issuers more conscious of the need to assure bond investors that 

they (the issuers) really were low risk, and they were willing to pay the credit 

rating firms for the opportunity to have the latter vouch for them (but that 

same shock should have also made investors more willing to pay to find out 

which bonds were really safer, and which were not); 

c. The bond rating firms may have belatedly realized that the financial regulations described above meant that bond issuers needed the ‘‘blessing’’ of one or 

more NRSROs in order to get their bonds into the portfolios of financial institutions, and the issuers should be willing to pay for the privilege; and 

d. The bond rating business, like many information industries, involves a ‘‘twosided market,’’ where payments can come from one or both sides of the market; 

in such markets, which side actually pays can be quite idiosyncratic. 11

Regardless of the reason, the change to the ‘‘issuer pays’’ business model opened 

the door to potential conflicts of interest: A rating agency might shade its rating upward so as to keep the issuer happy and forestall the issuer’s taking its rating business to a different rating agency. 12

Recent Events of the Current Decade 

The NRSRO system was one of the less-well-known features of Federal financial 

regulation, and it might have remained in that semisecretive state had the Enron 

bankruptcy of November 2001 not occurred. In the wake of the Enron bankruptcy, 

however, the media and then Congressional staffers noticed that the three major 

rating agencies had maintained ‘‘investment grade’’ ratings on Enron’s bonds until 

5 days before that company declared bankruptcy. This notoriety led to the 

Congress’s ‘‘discovery’’ of the NRSRO system and to Congressional hearings in 

which the SEC and the rating agencies were repeatedly asked how the latter could 

have been so slow to recognize Enron’s weakened financial condition. 13
96 

14See, Federal Register, 74 (February 9, 2009), pp. 6456–6484. 15Most recently, the major rating agencies still had ‘‘investment grade’’ ratings on Lehman 

Brothers’ commercial paper on the day that Lehman declared bankruptcy in September 2008. 16This delay in changing ratings has been a deliberate strategy by the major rating agencies. 

They profess to try to provide a long-term perspective—to ‘‘rate through the cycle’’—rather than 

providing an up-to-the-minute assessment. But this means that these rating agencies will always be slow to identify a secular trend in a bond’s creditworthiness, since there will always 

be a delay in perceiving that any particular movement isn’t just the initial part of a reversible 

cycle but instead is the beginning of a sustained decline or improvement. It may be that this 

sluggishness is a response to the desires of their investor clients to avoid frequent (and costly) 

adjustments in their portfolios; See, e.g., Altman and Rijken (2004, 2006); those adjustments, 

however, might well be mandated by the regulatory requirements discussed above. It may also 

be the case that the agencies’ ratings changes are sluggish (especially downward) so as not to 

anger issuers (which is another aspect of the potential conflict-of-interest problem). And the absence of frequent changes also allows the agencies to maintain smaller staffs. Except for the 

regulatory mandates, however, the agencies’ sluggishness would be inconsequential, since the 

credit default swap (CDS) market provides real time market-based judgments about the credit 

quality of bonds. 

The Sarbanes-Oxley Act of 2002 included a provision that required the SEC to 

send a report to Congress on the credit rating industry and the NRSRO system. The 

SEC duly did so; but the report simply raised a series of questions rather than directly addressing the issues of the SEC as a barrier to entry and the enhanced role 

of the three incumbent credit rating agencies, which (as explained above) was due 

to the financial regulators’ delegations of safety judgments (and which the SEC’s 

NRSRO framework had strengthened). 

In early 2003 the SEC designated a fourth NRSRO (Dominion Bond Rating Services, a Canadian credit rating firm), and in early 2005 the SEC designated a fifth 

NRSRO (A.M. Best, an insurance company rating specialist). The SEC’s procedures 

remained opaque, however, and there were still no announced criteria for the designation of a NRSRO. 

Tiring of the SEC’s persistence as a barrier to entry (and also the SEC’s opaqueness in procedure), the Congress passed the Credit Rating Agency Reform Act 

(CRARA), which was signed into law in September 2006. The Act specifically instructed the SEC to cease being a barrier to entry, specified the criteria that the 

SEC should use in designating new NRSROs, insisted on transparency and due 

process in the SEC’s decisions with respect to NRSRO designations, and provided 

the SEC with limited powers to oversee the incumbent NRSROs—but specifically 

forbade the SEC from influencing the ratings or the business models of the 

NRSROs. 

In response to the legislation, the SEC designated three new NRSROs in 2007 

(Japan Credit Rating Agency; Rating and Information, Inc. [of Japan]; and EganJones) and another two NRSROs in 2008 (Lace Financial, and Realpoint). The total 

number of NRSROs is currently ten. 

Finally, in response to the growing criticism (in the media and in Congressional 

hearings) of the three large bond raters’ errors in their initial, excessively optimistic 

ratings of the complex mortgage-related securities (especially for the securities that 

were issued and rated in 2005 and 2006) and their subsequent tardiness in downgrading those securities, the SEC in December 2008 promulgated regulations that 

placed mild restrictions on the conflicts of interest that can arise under the rating 

agencies’ ‘‘issuer pays’’ business model and that required greater transparency in 

the construction of ratings. 14 Political pressures to do more—possibly even to ban 

legislatively the ‘‘issuer pays’’ model—remain strong. 

An Assessment 

It is clear that the three dominant credit rating firms have received a considerable boost from financial regulators. Starting in the 1930s, financial regulators insisted that the credit rating firms be the central source of information about the 

creditworthiness of bonds in U.S. financial markets. Reinforcing this centrality was 

the SEC’s creation of the NRSRO category in 1975 and the SEC’s subsequent protective barrier around the incumbent NRSROs, which effectively ensured the dominance of Moody’s, S&P, and Fitch. Further, the industry’s change to the ‘‘issuer 

pays’’ business model in the early 1970s meant that potential problems of conflict 

of interest were likely to arise, sooner or later. Finally, the major agencies’ tardiness 

in changing their ratings—best exemplified by the Enron incident mentioned 

above 15—has been an additional source of periodic concern. 16

The regulatory boosts that the major rating agencies received, starting in the 

1930s, were certainly not the only reason for the persistent fewness in the credit 

rating industry. The market for bond information is one where economies of scale, 

the advantages of experience, and brand name reputation are important features. 
97 

17The Skreta and Veldkamp (2008) model predicts that greater complexity of rated bonds 

leads to a greater range of errors among (even honest) raters and thus to the ability of the 

issuers to select raters that are even more optimistic. 18The debacle is discussed extensively in Gorton (2008), Acharya and Richardson (2009), 

Coval, et al. (2009), and Mayer, et al. (2009). 19This importance extended to the development of other financing structures, such as ‘‘structured investment vehicles’’ (SIVs), whereby a financial institution might sponsor the creation of 

an entity that bought tranches of the CDOs and financed their purchase through the issuance 

of short-term ‘‘asset-backed’’ commercial paper (ABCP). If the CDO tranches in a SIV were highly rated, then the ABCP could also be highly rated. (Interest rate risk and liquidity risk were 

apparently ignored in the ratings.) 20For banks and savings institutions, in addition to the absolute prohibition on holding bonds 

that were below investment grade, there was a further important impact of ratings: Mortgagebacked securities (MBS)—including CDOs—that were issued by nongovernmental entities and 

rated AA or better qualified for the same reduced capital requirements (1.6 percent of asset 

value) as applied to the MBS issued by Fannie Mae and Freddie Mac the instead of the higher 

(4 percent) capital requirements that applied to mortgages and lower rated mortgage securities. 

The credit rating industry was never going to be a commodity business of thousands 

(or even just hundreds) of small-scale producers, akin to wheat farming or textiles. 

Nevertheless, the regulatory history recounted above surely contributed heavily to 

the dominance of the three major rating agencies. The SEC’s belated efforts to allow 

wider entry during the current decade were too little and too late. The advantages 

of the ‘‘Big Three’s’’ incumbency could not quickly be overcome by the entrants 

(three of which were headquartered outside the U.S., one of which was a U.S. insurance company specialist, and three of which were small U.S. firms). 

It is not surprising that a tight, protected oligopoly might become lazy and complacent. The ‘‘issuer pays’’ model opened the door to potential abuses. Though this 

potential problem had been present in the industry since the early 1970s, the relative transparency of the corporations and governments whose debt was being rated 

apparently kept the problem in check. Also, there were thousands of corporate and 

Government bond issuers, so the threat of any single issuer (if it was displeased by 

an agency’s rating) to take its business to a different rating agency was not potent. 

The complexity and opaqueness of the mortgage-related securities that required 

ratings in the current decade, however, created new opportunities and apparently 

irresistible temptations. 17 Further, the rating agencies were much more involved in 

the creation of these mortgage-related securities: The agencies’ decisions as to what 

kinds of mortgages (and other kinds of debt) would earn what levels of ratings for 

what sizes of ‘‘tranches’’ (or slices) of these securities were crucial for determining 

the levels of profitability of these securitizations for their issuers. Finally, unlike the 

market for rating corporate and Government debt, the market for rating mortgagerelated securities involved only a handful of investment banks as securitizers with 

high volumes. An investment bank that was displeased with an agency’s rating on 

any specific security had a more powerful threat—to move all of its securitization 

business to a different rating agency—than would any individual corporate or Government issuer. 

Fueling the Subprime Debacle 

The U.S. housing boom that began in the late 1990s and ran through mid 2006 

was fueled, to a substantial extent, by subprime mortgage lending. 18 In turn, the 

securitization of the subprime mortgage loans, in collateralized debt obligations 

(CDOs) and other mortgage-related securities, importantly encouraged the subprime 

lending. 19 And crucial for the securitization were the favorable ratings that were 

bestowed on these mortgage-related securities. 

Favorable ratings were important for at least two reasons: First, as has been discussed above, ratings had the force of law with respect to regulated financial institutions’ abilities and incentives (via capital requirements) to invest in bonds. 20 More 

favorable ratings on larger fractions of the tranches that flowed from any given 

package of mortgage securities thus meant that these larger fractions could more 

readily be bought by regulated financial institutions Second, the generally favorable 

reputations that the credit rating agencies had established in their corporate and 

Government bond ratings meant that many bond purchasers—regulated and nonregulated—were inclined to trust the agencies’ ratings on the mortgage-related, 

even (or, perhaps, especially) if the market yields on the mortgage-related securities 

were higher than on comparably rated corporate bonds. 

Driving all of this, of course, was the profit model of the securitizers (packagers) 

of the mortgages: For any given package of underlying mortgages (with their contractually specified yields) to be securitized, the securitizers made higher profits if 

they attained higher ratings on a larger percentage of the tranches of securities that 

were issued against those mortgages. This was so because the higher rated tranches 
98 

21This oversight would be an appropriate aspect of the safety-and-soundness regulation of 

such institutions. For a justification of safety-and-soundness regulation for these kinds of institutions, see, White (1991). 22 Again, this is necessary because the regulator has the goal that the regulated institution 

should maintain a safe bond portfolio (or have appropriate capital for the risks). 23This seems a reasonable assumption, since the bond market is, for the most part, one where 

financial institutions are the major buying and selling entities. It is not a market where ‘‘widows 

and orphans’’ are likely to be major participants. 

would carry lower interest rates that needed to be paid to the purchasers of/investors in those tranches, leaving a greater spread for the securitizers. It is not surprising, then, that the securitizers would be prepared to pressure the rating agencies, including threats to choose a different agency, to deliver those favorable ratings. 

A Counterfactual Musing 

It is worth ‘‘musing’’ about how the bond information industry’s structure would 

look today if financial regulators hadn’t succumbed (starting in the 1930s) to the 

temptation to outsource their safety decisions and thus allowing the credit rating 

agencies’ judgments to attain the force of law. Suppose, instead, that regulators had 

persisted in their goals of having safe bonds in the portfolios of their regulated institutions (or that, as in the case of insurance companies and broker-dealers, an institution’s capital requirement would be geared to the riskiness of the bonds that it 

held) but that those safety judgments remained the responsibility of the regulated 

institution, with oversight by regulators. 21

In this counterfactual world, banks (and insurance companies, etc.) would have a 

far wider choice as to where and from whom they could seek advice as to the safety 

of bonds that they might hold in their portfolios. Some institutions might choose to 

do the necessary research on bonds themselves, or rely primarily on the information 

yielded by the credit default swap market. Or they might turn to outside advisors 

that they considered to be reliable—based on the track record of the advisor, the 

business model of the advisor (including the possibilities of conflicts of interest), the 

other activities of the advisor (which might pose potential conflicts), and anything 

else that the institution considered relevant. Such advisors might include the credit 

rating agencies. But the category of advisors might also expand to include investment banks (if they could erect credible ‘‘Chinese walls’’) or industry analysts or upstart advisory firms that are currently unknown. 

The end-result—the safety of the institution’s bond portfolio—would continue to 

be subject to review by the institution’s regulator. 22 That review might also include 

a review of the institution’s choice of bond-information advisor (or the choice to do 

the research in-house)—although that choice is (at best) a secondary matter, since 

the safety of the bond portfolio itself (regardless of where the information comes 

from) is the primary goal of the regulator. Nevertheless, it seems highly likely that 

the bond information market would be opened to new ideas—about ratings business 

models, methodologies, and technologies—and to new entry in ways that have not 

actually been possible since the 1930s. 

It is also worth asking whether, in this counterfactual world, the ‘‘issuer pays’’ 

business model could survive. The answer rests on whether bond buyers are able 

to ascertain which advisors do provide reliable advice (as does any model short of 

relying on Government regulation to ensure accurate ratings). If the bond buyers 

can so ascertain, 23 then they would be willing to pay higher prices (and thus accept 

lower interest yields) on the bonds of any given underlying quality that are ‘‘rated’’ 

by these reliable advisors. In turn, issuers—even in an ‘‘issuer pays’’ framework— 

would seek to hire these recognized-to-be-reliable advisers, since the issuers would 

thereby be able to pay lower interest rates on the bonds that they issue. 

That the ‘‘issuer pays’’ business model could survive in this counterfactual world 

is no guarantee that it would survive. That outcome would be determined by the 

competitive process. 

Conclusion 

Whither the credit rating industry and its regulation? The central role—forced by 

seven decades of financial regulation—that the three major credit rating agencies 

played in the subprime debacle has brought extensive public attention to the industry and its practices. The Securities and Exchange Commission has recently (in December 2008) taken modest steps to expand its regulation of the industry. Further 

regulatory efforts by the SEC and/or the Congress would not be surprising. 

There is, however, another direction in which public policy could proceed. That direction is suggested by the ‘‘counterfactual musing’’ of the previous section: Financial regulators could withdraw their delegation of safety judgments to the credit rat-
99 

24The SEC proposed regulations along these lines in July 2008; See, Federal Register, 73 

(July 11, 2008), pp. 40088–40106, 40106–40124, and 40124–40142. No final action has been 

taken on these proposals. 

ing agencies. 24 The policy goal of safe bond portfolios for regulated financial institutions would remain. But the financial institutions would bear the burden of justifying the safety of their bond portfolios to their regulators. The bond information 

market would be opened to new ideas about rating methodologies, technologies, and 

business models and to new entry in ways that have not been possible since the 

1930s. 

Participants in this public policy debate should ask themselves the following questions: Is a regulatory system that delegates important safety judgments about bonds 

to third parties in the best interests of the regulated institutions and of the bond 

markets more generally? Will more extensive SEC regulation of the rating agencies 

actually succeed in forcing the rating agencies to make better judgments in the future? Would such regulation have consequences for flexibility, innovation, and entry 

in the bond information market? Or instead, could the financial institutions be 

trusted to seek their own sources of information about the creditworthiness of 

bonds, so long as financial regulators oversee the safety of those bond portfolios? 

References 

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To Repair a Failed System. New York: Wiley, 2009. 

Altman, Edward I., and Herbert A. Rijken, ‘‘How Rating Agencies Achieve Rating 

Stability’’, Journal of Banking & Finance, 28 (November 2004), pp. 2679–2714. 

Altman, Edward I., and Herbert A. Rijken, ‘‘A Point-in-Time Perspective on 

Through-the-Cycle Ratings’’, Financial Analysts Journal, 62 (January–February 

2006), pp. 54–70. 

Cantor, Richard, and Frank Packer, ‘‘The Credit Rating Industry’’, Journal of Fixed 

Income, 5 (December 1995), pp. 10–34. 

Coval, Joshua, Jakub Jurek, and Erik Stafford, ‘‘The Economics of Structured Finance’’, Journal of Economic Perspectives, 23 (Winter 2009), pp. 3–25. 

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2008; available at http://www.nber.org/papers/w14358. 

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Defaults’’, Journal of Economic Perspectives, 23 (Winter 2009), pp. 27–50. 

Partnoy, Frank, ‘‘The Siskel and Ebert of Financial Markets: Two Thumbs Down for 

the Credit Rating Agencies’’, Washington University Law Quarterly, 77 No. 3 

(1999), pp. 619–712. 

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Reinhart, and Giovanni Majnoni, eds., Ratings, Rating Agencies, and the Global 

Financial System. Boston: Kluwer, 2002, pp. 65–84. 

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Financial Stability: How To Repair a Failed System. New York: Wiley, 2009, pp. 

101–115. 

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Theory of Ratings Inflation’’, Working Paper #EC-08-28, Stern School of Business, 

New York University, October 2008. 

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M. Levich, Carmen Reinhart, and Giovanni Majnoni, eds., Ratings, Rating Agencies, and the Global Financial System. Boston: Kluwer, 2002, pp. 19–40. 

White, Lawrence J., The S&L Debacle: Public Policy Lessons for Bank and Thrift 

Regulation. New York: Oxford University Press, 1991. 

White, Lawrence J., ‘‘The Credit Rating Industry: An Industrial Organization Analysis’’, In Richard M. Levich, Carmen Reinhart, and Giovanni Majnoni, eds., Ratings, Rating Agencies, and the Global Financial System. Boston: Kluwer, 2002, pp. 

41–63. 

White, Lawrence J., ‘‘The SEC’s Other Problem’’, Regulation, 25 (Winter 2002– 

2003), pp. 38–42. 

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Regulation of the Bond Rating Industry’’, Policy Brief #2006-PB-05, Networks Financial Institute, Indiana State University, 2006. 

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(Spring 2007), pp. 48–52. 
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1The opinions and views expressed in this document are those of Mark Froeba, who is appearing before the Committee on his own behalf and as a private citizen, and are not intended 

to represent the views or opinions of any organization. 

PREPARED STATEMENT OF MARK FROEBA, J.D. 

PRINCIPAL, PF2 SECURITIES EVALUATIONS, INC. 

AUGUST 5, 2009 

Chairman Dodd, Senator Shelby, and Members of the Committee: My name is 

Mark Froeba and I am a lawyer based in New York City. I am pleased to be here 

today and it is an honor to testify before you on the important topic of rating agency 

reform. Thank you for giving me this opportunity. 1

Let me give you a brief summary of my background. I am a 1990 graduate of the 

Harvard Law School. In 1997, I left the tax group at Skadden, Arps in New York, 

where I had been working in part on structured finance securities, to join the CDO 

group at Moody’s. I worked at Moody’s for just over 10 years, all of that time in 

the CDO group. I left Moody’s in 2007 as a Senior Vice President. At that time, I 

was Team Leader of the CLO team, cochair of most CLO rating committees and 

jointly responsible for evaluating all new CLO rating guidelines. 

Since the beginning of the subprime crisis, there have been many proposals for 

rating agency reform. Most of these proposals are well-intentioned and would probably do little harm. However, few seem likely to accomplish real reform. Real reform 

must achieve two clear policy goals: 

• PREVENT another rating-related financial crisis like the subprime crisis; 

• RESTORE investor confidence in the quality and reliability of credit ratings. 

In my opinion, the rating agency reform provisions of the Investor Protection Act 

of 2009 are not sufficient—in themselves—to accomplish either of these goals. However, the Act’s rule-making authority could be used to expand their effectiveness. 

Why are the reform provisions in themselves insufficient? 

First, they are not the product of a complete investigation into what actually happened at the rating agencies. If you repair damage to a ceiling caused by a leaky 

roof but don’t repair the roof, the damage will just keep coming back. In this case, 

as long as we do not have a precise understanding of how things went so wrong, 

we cannot really be confident the reform proposals will do what is needed to prevent 

things from going wrong again. (Of course, this cuts both ways. Just as we do not 

know without an investigation whether the reform proposals go far enough, we also 

do not know whether they go too far.) 

It is true that some work has been done to discover what actually happened at 

each of the rating agencies, but much could still be learned, especially from the analysts who assigned the problem ratings. Any thorough investigation must include 

confidential interviews with as many of these analysts as possible from each of the 

major rating agencies. By these interviews, investigators will gain an intimate 

knowledge of how each rating agency actually worked, not how it was supposed to 

work on paper. More importantly, they will uncover exactly what the people closest 

to the process think caused so many ratings to be so significantly wrong. What questions should be asked? 

• Who is responsible for what happened and why? 

• Was there ever any pressure exerted upon you or your colleagues, direct or indirect, to subordinate rating analysis to business considerations? 

• If so, how was the pressure exerted? 

Even if these questions seem to insinuate malfeasance, they are questions the rating 

agencies will welcome because the answers they expect will do much to restore confidence in their integrity. 

In summary, without a proper investigation of what happened—not conducted on 

a theoretical level, or in discussions with senior managers but with the analysts who 

actually assigned the ratings in question—we cannot be sure the proposed legislation provides solutions designed to fix the real problems. 

The best way to illustrate my second reason for questioning the sufficiency of this 

proposal is to ask you a simple question. If Investor Protection Act of 2009 had been 

enacted, just as it is, 5 years ago, do you think it would have prevented the 

subprime crisis? In my view, the answer to this question is very clearly ‘‘No.’’ That 

does not mean that these proposals are bad. It just means that they do not advance 

what should be one of the central policy goals of rating agency reform: preventing 
101 

a future crisis in the financial system triggered at least in part by problem credit 

ratings. 

If these reform proposals are uncertain to prevent a future crisis and to restore 

confidence in the credit ratings, what reforms could achieve these goals? 

To answer this question, we should first consider the regulatory context in which 

the rating agencies found themselves just before the subprime crisis. First, they enjoyed an effective monopoly on the sale of credit opinions. Second, and more importantly, they enjoyed the benefit of very substantial Government-sanctioned demand 

for their monopoly product. (A buggy whip monopoly is a lot more valuable if Government safety regulations require one in every new car). Third, the agencies enjoyed nearly complete immunity from liability for injuries caused by their monopoly 

product. Fourth, worried about the monopoly power created by the regulations of 

one branch of Government, another branch encouraged vigorous competition among 

the rating agencies. This mix of regulatory ‘‘carrots’’ and ‘‘sticks’’ in the period leading up to the subprime meltdown may have contributed to making it worse than 

it might have been. Thus, a third goal of rating agency reform should be to untangle 

these conflicting regulatory incentives. Here are some proposals that I believe will 

help with all three reform goals. 

First, put a ‘‘fire wall’’ around ratings analysis. The agencies have already separated their rating and nonrating businesses. This is fine but not enough. The agencies must also separate the rating business from rating analysis. Investors need to 

believe that rating analysis generates a pure opinion about credit quality, not one 

even potentially influenced by business goals (like building market share). Even if 

business goals have never corrupted a single rating, the potential for corruption demands a complete separation of rating analysis from bottom-line analysis. Investors 

should see that rating analysis is virtually barricaded into an ‘‘ivory tower,’’ and 

kept safe from interference by any agenda other than getting the answer right. The 

best reform proposal must exclude business managers from involvement in any aspect of rating analysis and, critically also, from any role in decisions about analyst 

pay, performance, and promotions. 

Second, prohibit employee stock ownership and change the way rating analysts are 

compensated. There’s a reason why we don’t want judges to have a stake in the matters before them and it’s not just to make sure judges are fair. We do this so that 

litigants have confidence in the system and trust its results. We do this even if some 

or all judges could decide cases fairly without the rule. The same should be true 

for ratings. Even if employee stock ownership has never actually affected a single 

rating, it provokes doubt that ratings are disinterested and undermines investor 

confidence. Investors should have no cause to question whether the interests of rating agency employees align more closely with agency shareholders than investors. 

Reform should ban all forms of employee stock ownership (direct and indirect) by 

anyone involved in rating analysis. These same concerns arise with respect to annual bonus compensation and 401(K) contributions. As long as these forms of compensation are allowed to be based upon how well the company performs (and are 

not limited to how well the analyst performs), there will always be doubts about 

how the rating analysts’ interests align. 

Third, create a remedy for unreasonably bad ratings. As noted above, the rating 

agencies have long understood (based upon decisions of the courts) that they will 

not be held liable for injuries caused by ‘‘bad’’ ratings. Investors know this. Why 

change the law to create a remedy if bad ratings arguably cause huge losses? The 

goal is not to give aggrieved investors a cash ‘‘windfall.’’ The goal is to restore confidence—especially in sophisticated investors—that the agencies cannot assign bad 

ratings with impunity. The current system allows the cost of bad ratings to be shifted to parties other than the agencies (ultimately to taxpayers). Reform must shift 

the cost of unreasonably bad ratings back to the agencies and their shareholders. 

If investors believe that the agencies fear the cost of assigning unreasonably bad 

ratings, then they will trust self interest (even if not integrity) to produce ratings 

that are reasonably good. 

My former Moody’s colleague, Dr. Gary Witt of Temple University, believes that 

a special system of penalties might also be useful for certain types of rated instruments. Where a governmental body relies upon ratings for regulatory risk assessment of financial institutions—e.g., the SEC (broker-dealers and money funds), the 

Federal Reserve (banks), the NAIC (insurance companies) and other regulatory organizations within and outside the U.S.—the Government has a compelling interest 

and an affirmative duty to regulate the performance of such ratings. Even if other 

types of ratings might be protected from lawsuits by the first amendment, these ratings are published specifically for use by the Government in assessing risk of regulated financial institutions and should be subject to special oversight, including the 
102 

measurement of rating accuracy and the imposition of financial penalties for poor 

performance. 

Fourth, change the antitrust laws so agencies can cooperate on standards. When 

rating agencies compete over rating standards, everybody loses (even them). Eight 

years ago, one rating agency was compelled to plead guilty to felony obstruction of 

justice. The criminal conduct at issue there related back to practices (assigning unsolicited ratings) actually worth reconsidering today. Once viewed as anticompetitive, this and other practices, if properly regulated, might help the agencies resist 

competition over rating standards. Indeed, the rating problems that arose in the 

subprime crisis are almost inconceivable in an environment where antitrust rules 

do not interfere with rating agency cooperation over standards. Imagine how different the world would be today if the agencies could have joined forces 3 years ago 

to refuse to securitize the worst of the subprime mortgages. Of course, cooperation 

over rating analysis would not apply to business management which should remain 

fully subject to all antitrust limitations. 

Fifth, create an independent professional organization for rating analysts. Every 

rating agency employs ‘‘rating analysts’’ but there are no independent standards 

governing this ‘‘profession’’: there are no minimum educational requirements, there 

is no common code of ethical conduct, and there is no continuing education obligation. Even where each agency has its own standards for these things, the standards 

differ widely from agency to agency. One agency may assign a senior analyst with 

a Ph.D. in statistics to rate a complex transaction; another might assign a junior 

analyst with a BA in international relations to the same transaction. The staffing 

decision might appear to investors as yet another tool to manipulate the rating outcome. Creating one independent professional organization to which rating analysts 

from all rating agencies must belong will ensure uniform standards—especially ethical standards—across all the rating agencies. It would also provide a forum external to the agencies where rating analysts might bring confidential complaints about 

ethical concerns. An independent organization could track and report the nature 

and number of these complaints and alert regulators if there are patterns in the 

complaints, problems at particular agencies, and even whether there are problems 

with particular managers at one rating agency. Finally, such an organization should 

have the power to discipline analysts for unethical behavior. 

Sixth, introduce ‘‘investor-pay’’ incentives into an ‘‘issuer-pay’’ framework. Students 

of the history of rating agencies know that, at one point, rating agencies were paid 

by investors not by issuers of the securities rated by the agency. Investors subscribed to periodic rating reports and these subscription fees paid for the ratings. 

By the late 1960s this business model was not working and the agencies gradually 

shifted away from an investor-pay model to an issuer-pay model. In this model, the 

party or entity applying for a rating pays for the rating. 

Critics fault this model because it shifts the attention (and allegedly, the allegiance) of the rating agencies not only away from the ultimate consumer of the rating, the investor, but also toward the party whose interests may strongly conflict 

with the investor, the issuer. According to this view of the process, the power of the 

issuer to take the rating business to a competitor became the tool by which the rating agencies were induced to compete with each other on rating standards. For example, an issuer tells rating agency (X) that its competitor (Y) has lowered its subordination levels for some structured security, e.g., from 4.5 percent to 4.3 percent. 

The issuer urges X to change its standards or lose the issuer’s business. Of course, 

at the same time, the issuer is telling Y that X has lowered subordination levels 

and urging Y to adopt the lower standards. It isn’t hard to see how a spiral of declining rating standards could be triggered under this model. 

There are those who believe that real rating agency reform requires a return to 

an investor-pay model. But there may be a third way, a business model that preserves the issuer-pay ‘‘delivery system’’ (the issuer still gets the bill for the rating) 

but incorporates the incentives of the investor-pay model. How would this work? 

First, issuers seeking a credit rating would be required to provide the same information to every rating agency that has ‘‘registered’’ to rate a particular type of security or transaction. Thus, if there are five rating agencies registered to rate CDOs, 

all five would receive exactly the same information about a new CDO from the 

issuer. Second, the potential investors in the new security or transaction would decide which agencies get paid to rate the security. During the marketing phase of 

the transaction, investors would compare the ratings proposed by all of the rating 

agencies and the investors would then select the agencies to rate the transaction. 

It would be at this point that the rating agencies would once again be competing 

with each other for the interest of the investors. The issuers’ power to corrupt the 

process by selecting the rating agency would be eliminated. Finally, every rating 
103 

agency would be free to publish ratings of the transaction, regardless of whether it 

was selected to be paid for the rating by investors. 

It would also be possible to use such a system to create demand for ratings from 

new rating agencies. To do so, investors (or issuers if they are still making the selection) would be required to pick two agencies for every transaction: (1) only one from 

the list of agencies with more than 50 percent market share for the asset type in 

question and (2) one or more from the list of agencies with less than 50 percent 

market share for the asset type in question. In this way, newer agencies would have 

an easier time breaking into a business with extremely high barriers to entry. 

These and other reforms are necessary not only to restore investor confidence in 

ratings (without regard to whether they actually redress past malfeasance) but also 

to prevent future ratings-related financial crises. 
104 

RESPONSES TO WRITTEN QUESTIONS OF SENATOR BENNETT 

FROM MICHAEL S. BARR 

Q.1. Pursuant to proposed section 1002(9) of the President’s White 

Paper on Financial Regulatory Reform, would CFPA’s authority extend to those who market financial products and services? For example, could a newspaper be covered under the ‘‘direct or indirect’’ 

language if it allows an advertisement for a financial activity to be 

placed within it? Similarly, would a Web site Portal (such as 

Yahoo!) be covered if it features advertising of financial products or 

services? Lastly, would a broker be covered if it provided a list to 

a financial institution for direct marketing purposes? 

A.1. Under the proposed CFPA Act, the CFPA would have limited 

jurisdiction to regulate persons engaged in a ‘‘financial activity, in 

connection with the provision of a consumer financial product or 

service.’’ The wide range of persons and entities described in your 

questions typically are currently subject to Federal regulation and 

enforcement by the Federal Trade Commission (FTC) under the 

FTC Act or must comply with ‘‘enumerated consumer laws,’’ authorities that would be transferred to the CFPA. In this way, the 

proposed CFPA Act would not alter the basic landscape governing 

existing Federal laws regarding consumer financial products or 

services that currently apply to those persons and entities. 

We believe that reform of the Federal regulatory structure for 

consumer protection for financial products and services requires 

three elements: mission focus, marketwide coverage, and consolidated authority. The authorities for rulemaking, supervision, and 

enforcement for consumer financial products and services are presently scattered among a number of different Federal agencies, including the Board of Governors of the Federal Reserve System 

(Federal Reserve Board), the Federal Deposit Insurance Corporation, the Federal Trade Commission, the Department of Housing 

and Urban Development, the Office of the Comptroller of the Currency (OCC), the Office of Thrift Supervision, and the National 

Credit Union Administration. 

Our proposal to establish the CFPA is not designed to establish 

a new layer of Federal authority on top of this presently balkanized 

Federal structure. Rather, the proposed CFPA Act is intended to 

consolidate Federal authority over the marketplace for consumer financial products and services to ensure consistent standards and 

a level playing field across the marketplace. 

Accordingly, many of the persons or entities described in your 

question would be ‘‘covered persons’’ in connection with the provision of consumer financial products or services. For example, banks 

that extend credit to consumers to be used primarily for personal, 

family, or household purposes would be ‘‘providing consumer financial products and services’’ within the meaning of the proposed 

CFPA Act. Likewise, a consumer reporting agency would be a covered person when providing consumer reports (including credit 

scores) or ‘‘identity theft products,’’ such as credit monitoring services—both of which would be ‘‘financial product[s] or service[s]’’ 

under the proposed CFPA Act—to consumers to be used primarily 

for personal, family, or household purposes. Similarly, under our 

proposal, a retailer that sells ‘‘prepaid gift cards’’ (which would be 

a type of ‘‘stored value’’ product) to consumers to be used primarily 
105 

for personal, family, or household purposes would be a ‘‘covered 

person’’ with respect to that activity, but not with respect to the 

sale of other, nonfinancial products or services. 

In general, the following entities, as described in your question, 

would be subject to the jurisdiction of the CFPA under an ‘‘enumerated consumer law,’’ under the proposed CFPA Act in connection 

with providing a covered financial product or service to consumers 

to be used primarily for personal, family, or household purposes, or 

under two or more of those laws, with respect to the following products or services: banks (deposit products (CDs; savings accounts); 

demand deposit accounts; home mortgage loans (first or second 

liens, as well as home equity loans); credit card loans; financial 

lease structures; personal loans; student loans; vehicle financing 

(auto, motorcycle, and boat loans); sales of credit insurance products; sales of mortgage life insurance products; financial advice and 

educational publications; appraisal services; money transfer and 

payments; ACH activity; checks and check processing; and reporting information about customers to other lenders); retailers (credit 

card loans; other unsecured loans (e.g., deferred payment plans); financial leasing arrangements; leasing of property to consumers to 

be used primarily for personal, family, or household purposes, including communication equipment, photocopies, vehicles, audio-visual equipment, subject to certain conditions as described in the proposed CFPA Act; sale of prepaid gift cards; and ATM services); retailers or specialized merchandise and services (secured financing; 

unsecured financing; extended payment plans; and financial leasing of real and personal property); consumer reporting agencies 

(consumer reports; identity theft products (e.g., monitoring) and 

processing and transmission of credit scores); insurance companies 

and insurance agents (credit insurance products; financial advice 

and publications; sales of covered insurance products; and financial 

advice, unless an insurance company or insurance agent is subject 

to an exemption as a person regulated by the Securities and Exchange Commission (SEC) or a person regulated by the Commodity 

Futures Trading Commission (CFTC)); stockbrokers, if not subject 

to an exemption under the proposed CFPA Act as a person regulated by the SEC or a person regulated by the CFTC (financial advice; brokering loans (e.g., home mortgages to clients); brokering 

deposits; sweeps; and sales of unregistered or exempt securities); 

attorneys (providing financial advice, which we presume is outside 

the scope of the attorney–client relationship; real estate settlement 

services conduct outside the scope of the attorney–client relationship; and acting as custodians); manufacturers (financing of products (e.g., homes; automobiles and other vehicles; appliances; computers); and leasing of real and personal property to consumers to 

be used primarily for personal, family, or household purposes, subject to certain conditions as described in the proposed CFPA Act); 

real estate agents (financial advice; financing assistance and referrals; title insurance agency and underwriting; and providing real 

estate settlement services); educational institutions (originating/ 

brokering student loans; providing financial advice to individual 

consumers, as described in the proposed CFPA Act); hospitals, physicians, and other medical service providers (arranging for financing of medical services; collection of unpaid bills, to the extent that 
106 

the debt collection relates to a consumer financial product or service, such as a credit extended by the medical service provider itself 

to finance the medical services; dealing in or transmitting consumer credit information; and leasing of medical equipment to consumers to be used primarily for personal, family, or household purposes, subject to certain conditions as described in the proposed 

CFPA Act); accountants (providing tax planning and/or personal 

tax-preparation services). 

Although the proposed CFPA would be authorized to regulate essential aspects of the marketplace for ‘‘consumer financial products 

and services,’’ the CFPA would not have unlimited authority under 

the proposed CFPA Act and there would be no basis for many of 

the entities described in your question to be regulated as ‘‘covered 

persons.’’ For example, the proposed CFPA Act would not regulate 

retailers with respect to the provision of typical ‘‘refer-a-friend’’ programs, which customarily involve only the processing of personally 

identifiable information, such as an e-mail address, disclosed by a 

consumer herself for marketing purposes, and do not involve the 

provision of ‘‘financial data processing’’ services by retailers to consumers. Neither lay-away plans nor extended warranties, which 

typically are governed under State laws as part of sales transactions for the products themselves, are listed in the Act’s definition of ‘‘financial activity.’’ Attorneys who communicate with consumers as agents of financial services providers (and are not providing services to consumers such as acting as a mortgage broker) 

would not be subject to the jurisdiction of the CFPA because, in 

that capacity, the attorneys would be providing services to the providers, not to consumers. Moreover, the provision of real estate settlement services by an attorney to a consumer within the scope of 

the attorney–client relationship should not be regulated by the 

CFPA because the proposed CFPA Act is not intended to alter the 

regulation of the practice of law by the State courts. Even though 

an educational institution that originates or brokers loans to students to be used primarily for personal, family or household purposes would be a ‘‘covered person’’ with respect to those activities, 

processing ‘‘grant applications’’ or offering ‘‘study abroad programs’’ 

are activities outside the scope of the proposed CFPA Act. 

In addition, the following entities, as described in your question, 

would not be subject to the jurisdiction of the CFPA, either under 

either an enumerated consumer law or under the proposed CFPA 

Act, with respect to the following products or services: banks (factoring; sales of annuities; and sales of investment products (other 

than interest-bearing deposits, such as CDs)); retailers (consumer 

deposits, assuming that a retailer is prohibited by law from accepting ‘‘deposits’’ and that the deposits described in your question 

refer to a deposit for the purchase of a commercial product or service; refer a friend programs; exchanges of customer lists, unless 

such an exchange is covered by the requirements under the 

Gramm-Leach-Bliley Act (GLBA); the use of ‘‘vanity’’ cards or similar payment plans, including ‘‘lay-away’’ plans; and discount cards) 

retailers or specialized merchandise and services; insurance companies and insurance agents (except with respect to credit insurance 

products, financial advice and publications, sales of covered insurance products, and financial advice, as discussed above); stock-
107 

brokers, if covered by an exemption under the proposed CFPA Act 

as a person regulated by the SEC or a person regulated by the 

CFTC (financial advice; brokering deposits in money market mutual funds, such as sweeps products; and sales of unregistered or 

exempt securities); attorneys (real estate settlement services conducted within the scope of the attorney–client relationship; collection of own debts, unless the debt collection relates to a consumer 

financial product or service, such as a credit extended by an attorney herself to finance her legal services; takers and holders of deposits, assuming that an attorney is prohibited by law from accepting ‘‘deposits’’ and that the deposits described in your letter refer 

to deposits in connection with purchases of legal services; and subletting office space); manufacturers (deposit-taking activities, assuming that a manufacturer is prohibited by law from accepting 

‘‘deposits’’ and that the deposit-taking activities described in your 

letter refer to deposits for purchases of commercial products or 

services); real estate agents (sales of real property; ‘‘deposit taking 

activities,’’ assuming that a real estate agent is prohibited by law 

from accepting ‘‘deposits’’ and that the deposit-taking activities described in your letter refer to the receipt of deposits for purchases 

of property, such as receipt of a check of a consumer-payor as a deposit for the consumer’s purchase of a house); educational institutions (providing financial literacy training/information to students, 

unless the training is provided to a particular consumer on individual financial matters, as described in the proposed CFPA Act; 

study abroad programs; processing grant applications; and tuition/ 

scholarship grants); hospitals, physicians, and other medical service providers (deposit-taking activities, assuming that a hospital, 

physician, or medical service provider is prohibited by law from accepting ‘‘deposits’’ and that the deposit-taking activities described 

in your letter refer to the receipt of deposits for purchases of medical services; and processing insurance-related payments and activities); accountants (except with respect to providing tax planning 

and/or personal tax-preparation services, as described above). 

The CFPA will not regulate the media or subject the media to 

fees. 

A ‘‘broker’’ providing a ‘‘list to a financial institution for direct 

marketing purposes’’ (or another party not affiliated with the 

broker) would be covered by the notice and opt-out requirements of 

the GLBA, as applicable, if the list contains nonpublic personal information about consumers, and potentially may be subject to the 

Fair Credit Reporting Act (FCRA) for such activity. 

Q.2. Under proposed section 1002(9), would a credit card payment 

processor, or money transmitter, that arranges a payment in connection with the delivery of a financial product or service that violates a regulation promulgated by CFPA be liable for monetary 

damages or any other punitive action? Does one need to establish 

scienter on the part of the transmitter or processor, or is mere involvement in the processing a sufficient nexus? 

A.2. Under the proposed CFPA Act, the CFPA would be authorized 

to enforce the requirements of the CFPA Act with respect to a credit card payment processor or money transmitter, each a ‘‘covered 

person,’’ in accordance with the provisions of the CFPA Act, which 
108 

would include civil money penalties for violations under certain circumstances. However, the proposed CFPA Act expressly provides 

that ‘‘[n]othing [in the section regarding remedies] shall be construed as authorizing the imposition of exemplary or punitive damages.’’ Depending on the circumstances of a violation, or the remedies sought, ‘‘mere involvement’’ by a covered person in a violation 

should not be a sufficient basis to support the imposition of a sanction under the proposed CFPA Act. 

Q.3. The ‘‘business of insurance’’ appears to be excluded from the 

definition of ‘‘financial activity’’ in the bill, though the exceptions 

from that exclusion (credit insurance, mortgage insurance, and title 

insurance) suggest that the CFPA would still have jurisdiction over 

conventional insurance companies if their business includes financial activities enumerated in proposed section 1002(18)(0). Is that 

correct? Please specify to what extent, if at all, a conventional insurance company would still find itself subject to potential regulation by the CFPA. 

A.3. Under the proposed CFPA Act, a conventional insurance company would be subject to the jurisdiction of the CFPA with respect 

to the provision of credit, mortgage, or title insurance products or 

services to consumers to be used primarily for personal, family or 

household purposes. In addition, a conventional insurance company 

would be subject to the jurisdiction of the CFPA, like any other 

person, if the insurance company engages in activities ‘‘in connection with the provision of a consumer financial product or service,’’ 

such as extending credit or providing other consumer financial 

products or services to consumers to be used primarily for personal, 

family or household purposes, or otherwise falls within the definition of a ‘‘covered person.’’ 

Q.4. In establishing the CFPA, the proposal seeks ‘‘ . . . to promote 

transparency, simplicity, fairness, accountability, and access in the 

market for consumer financial products or services.’’ (Section 

1021(a)). Yet the definitional reach of ‘‘consumer financial products 

or services’’ is broad, in that it includes ‘‘any financial product or 

services to be used by a consumer primarily for personal, family or 

household purposes.’’ (Section 1002(8)). A ‘‘financial product or 

service,’’ in turn, ‘‘means any product or service that, directly or indirectly, results from or is related to engaging in 1 or more financial activities’’ (Section 1002(19)), while the definition of ‘‘financial 

activities,’’ includes: 

• Deposit-taking; 

• Extending credit and servicing loans; 

• Check-guaranty services; 

• Collecting, analyzing, maintaining, and providing consumer report information; 

• Collection of any debts; 

• Providing real estate settlement services; 

• Leasing personal or real property or acting as agent, broker, or 

adviser relating thereto; 

• Acting as an investment adviser; 

• Acting as a financial adviser; 
109 

• Financial data processing; 

• Money transmitting; 

• Sale or issuance of stored value cards; 

• Acting as a money services business; 

• Acting as a custodian; 

• ‘‘Any other activity that the Agency defines, by regulation, as 

a financial activity.’’ (Section 1002(18)). 

In light of the potentially all-encompassing nature of the regulatory regime to be established by the proposed CFPA, I would ask 

for clarifications on the precise nature of the services and products 

to be included within the scope of the jurisdictional ambit of this 

new proposal. To this end, I respectfully request guidance as to 

whether the following activities are intended to be within the regulatory oversight of the CFPA. 

A. In the case of banks: I would ask for confirmation that all the 

following activities would be covered: 

• Deposit products (CD’s; savings accounts) 

• Demand deposit accounts 

• Home mortgage loans (fist, second, home equity) 

• Credit card loans 

• Financial lease structures 

• Personal loans; student loans 

• Vehicle financing (auto, motorcycle, and boat loans) 

• Sales of annuities 

• Sales of investment products 

• Sales of credit insurance products 

• Sales of mortgage life insurance products 

• Financial advice and educational publications 

• Appraisal services 

• Factoring 

• Money transfer and payments 

• ACH activity 

• Checks and check processing 

• Reporting information about customers to other lenders 

B. In the case of retailers (general merchandise; convenience stores; 

service stations): it would be helpful to know if the following would 

be covered, as well as to understand if further examples of possible 

jurisdiction may exist: 

• Credit card loans 

• Other unsecured loans (e.g., layaway and other deferred payment plans) 

• Financial leasing arrangements 

• Consumer deposits 

• Refer a friend programs 

• Exchanges of customer lists 

• Retailers who use ‘‘vanity’’ cards and any other payment plans, 

including ‘‘lay-away’’ plans 
110 

• Leasing of property, including communication equipment, photocopies, vehicles, audio-visual equipment 

• Sale of prepaid gift cards 

• Discount cards 

• ATM services 

C. In the case of retailers of specialized merchandise and services 

(e.g., automobiles and other vehicles, new and used; home improvements; home security devices; computers; cell phones): please explain if these products would, in fact, be covered, and whether 

other examples of possible jurisdiction should be considered: 

• Secured financing 

• Unsecured financing; extended payment plans 

• Financial leasing of real and personal property 

• Extended product warranties 

D. In the case of credit reporting agencies: please specify whether 

other areas of activity beyond the following should be deemed covered: 

• Consumer reports 

• Identity theft products (e.g., monitoring) 

• Processing and transmission of Credit scores 

E. For insurance companies and insurance agents: please advise if 

additional activities need to be studied as within the scope of H.R. 

3126: 

• Credit insurance products 

• Financial advice and publications 

• Sales of covered insurance products 

• Financial advice 

F. In the case of stockbrokers: please provide examples of the following potentially covered activities: 

• Financial advice 

• Brokering loans (e.g., home mortgages to clients) 

• Brokering deposits; sweeps 

• Sales of unregistered or exempt securities 

G. For attorneys: please explain if there may be areas of additional 

activity that may be regulated by the CFPA: 

• Communicating with consumers as agents of financial services 

providers 

• Providing financial advice or education 

• Real estate settlement services 

• Collection of own debts 

• Takers and holders of deposits 

• Acting as custodians 

• Subletting office space 

H. For manufacturers: please confirm and expand, as may be needed, on the following areas of conduct that may be regaled under the 

terms of H.R. 3126: 
111 

• Financing of products (e.g., homes; automobiles and other vehicles; appliances; computers) 

• Extended warranties 

• Leasing of real and personal property 

• Deposit-taking activities 

I. In the case of real estate agents: please confirm that the following 

constitute certain topics for possible regulation by the CFPA: 

• Sales 

• Financial advice 

• Financing assistance and referrals 

• Deposit-taking activities 

• Title insurance agency and underwriting 

• Providing real estate settlement services 

J. For educational institutions: please provide further specific examples beyond those areas of activity set forth below: 

• Originating/brokering student loans 

• Providing financial literacy training/information to students 

• Providing financial advice 

• Study abroad programs 

• Tuition/scholarship, student loan financing programs 

• Grant applications 

K. In cases of hospitals, physicians, and other medical service providers: please provide guidance in confirming that these activities 

may be subject to regulatory scrutiny by the Agency, and please 

also advise me of additional areas of potential activity under H.R. 

3126: 

• Arranging for financing of medical services 

• Collection of unpaid bills 

• Deposit-taking activities 

• Dealing in or transmitting consumer credit information 

• Processing insurance-related payments and activities 

• Leasing of medical equipment 

L. For accountants: please confirm whether the following constitute 

certain topics for possible regulation by the CFPA: 

• Providing tax planning and/or personal tax-preparation services 

A.4. Please see response to Question 1 above. 

Q.5. Under proposed section 1012, the governing board of the 

CFPA would be composed of five members serving staggered terms, 

all appointed by the President, without any requirement that they 

represent any political party other than that of the President. 

Please provide the public policy justification for this departure from 

the practice of the Securities and Exchange Commission (SEC) and 

the Federal Trade Commission. 

A.5. Under the proposed CFPA Act, the five-member Board of the 

CFPA would be comprised of four members appointed by the President for terms of 5 years, by and with the consent of the Senate, 
112 

and the head of the agency responsible for regulating national 

banks. The proposal recommends this structure so that the focus 

on appointing Board members can be on expertise in the consumer 

financial marketplace, rather than be constrained by party affiliation. The requirement of advice and consent of the Senate will 

help balance the Board. The 5-year terms of the Board members 

would be staggered, which will help ensure continuity across different administrations. The CFPA Board would be similar in structure to the Federal Reserve Board, whose members serve for staggered terms and are not subject to requirements relating to political affiliation. 

Q.6. Under proposed section 1018(c), a ‘‘Victims Relief Fund’’ is set 

up within the Treasury, into which civil penalties paid to the 

Treasury pursuant to CFPA enforcement actions would be placed 

and from which the CFPA could withdraw funds for distribution to 

‘‘victims’’ at its sole discretion. Please provide precedents for this 

provision. 

A.6. Current Federal laws may not provide an exact precedent for 

the CFPA Civil Penalty Fund. However, the fund is designed to 

compensate victims of misconduct in the provision of consumer financial products or services which is the subject of judicial or administrative actions taken by the CFPA and which result in civil 

penalties being assessed against covered persons. Civil penalties 

could be imposed by the CFPA under the proposed CFPA Act, the 

authorities transferred from other Federal agencies, or the enumerated consumer laws which the CFPA would be authorized to enforce. 

Q.7. Under proposed section 1054, the CFPA would be authorized 

to represent itself in Federal or State court, including the U.S. Supreme Court. Please confirm that Attorney General Holder has 

agreed with this policy and provide a list of other independent 

agencies that also have the authority to represent themselves in 

the same fashion. Also, does ‘‘all appropriate legal or equitable relief’’ (Section 1054(a)) contemplate seeking monetary damages in 

addition to civil penalties? If so, why is this language different (in 

that the word ‘‘monetary’’ is used) from the language that applies 

to State Attorneys General in proposed section 1042(a)(1)? 

A.7. The Office of the Comptroller of the Currency (‘‘OCC’’ or 

‘‘Comptroller’’) and the Federal Reserve Board are authorized to 

represent themselves in Federal or State courts. Federal law currently authorizes the OCC to ‘‘act in the Comptroller’s own name 

and through the Comptroller’s own attorneys in enforcing any provision of this title, regulations thereunder, or any other law or regulation, or in any action, suit, or proceeding to which the [Comptroller] is a party.’’ 12 U.S.C. §93(d). Similarly, the Federal Reserve 

Board is authorized to ‘‘act in its own name and through its own 

attorneys in enforcing any provision of this title, regulations promulgated hereunder, or any other law or regulation, or in any action, suit, or proceeding to which the [Federal Reserve Board] is a 

party and which involves the [Federal Reserve Board’s] regulation 

or supervision of any bank, bank holding company . . . or other entity, or the administration of its operations.’’ 12 U.S.C. §248(p). 
113 

Section 154(a) of the proposed CFPA Act would authorize the 

CFPA to ‘‘seek all appropriate legal or equitable relief,’’ but ‘‘monetary damages,’’ as customarily awarded under the common law, 

should not be available to the CFPA because the agency typically 

would not be able to plead and prove an injury to the agency itself 

that would warrant such damages. However, section 155(a)(2) of 

the proposed CFPA Act contemplates that the CFPA could seek, 

and a court may mandate, the ‘‘payment of damages,’’ such as to 

a consumer, arising from a violation. The use of the word ‘‘monetary’’ in section 142 is intended to generally describe a category of 

relief available for a State attorney general or State regulator to 

recover under applicable State law, such as a civil money penalty. 

Q.8. Proposed Subtitle D of the legislative proposal does not include an express prohibition against private rights of action and/ 

or class actions, yet section 1064(l) of the bill includes a ban on private rights of action for transferred employees. Would either or 

both remedies be possible under this proposal? 

A.8. The proposed CFPA Act does not afford a private right of action against a covered person, including through a class action. 

Q.9. Proposed section 1025 would authorize the CFPA to ‘‘prohibit 

or impose conditions or limitations’’ on existing arbitration agreements if, in the exercise of its sole discretion, the CFPA were to 

determine that such agreements are not ‘‘in the public interest’’ or 

‘‘for the protection of consumers.’’ What specific legal standards 

would apply in order to decide what constitutes ‘‘the public interest’’ or the ‘‘protection of consumers’’ under this proposed section? 

A.9. Under the proposed CFPA Act, the CFPA, through the noticeand-comment rulemaking process, would establish the standards 

for the ‘‘public interest’’ and the ‘‘protection of consumers’’ relevant 

to the type or class of binding arbitration agreement regarding future disputes, as would be further defined by the CFPA, that may 

warrant an appropriate condition, limitation, or prohibition, if any. 

Q.10. We note that proposed Section 1022 appears to provide an 

exception to coverage by the CFPA for ‘‘a person regulated by’’ the 

SEC. Please confirm that this exception is effective only with respect to the ‘‘functions’’ of the covered entity that are actually regulated by the SEC. 

A.10. Section 101(27) of the proposed CFPA Act provides that the 

term ‘‘person regulated by the Securities and Exchange Commission’’ is limited ‘‘only to the extent that the person acts in a registered capacity.’’ 

Q.11. In proposed section 1023, the CFPA reserves to itself the authority to issue regulations that determine ‘‘the confidential treatment of information’’ it obtains pursuant to its duties as outlined 

in the bill. Does that authority extend to the possible public release 

of proprietary information gathered from ‘‘covered persons’’ and/or 

otherwise confidential financial information obtained under proposed section 1022 or any other provision of this proposal? 

A.11. We expect that under the proposed CFPA Act the CFPA will 

adopt strong confidentiality rules designed to strictly limit the disclosure of confidential information about a covered person, consistent with the standards adopted by the banking agencies to pro-
114 

tect confidential supervisory information. Moreover, section 123(b) 

is not intended to override the application of the Freedom of Information Act (FOIA); as a result, the CFPA, like the Federal banking 

agencies, generally would be required to disclose information relating to a covered person in accordance with the FOIA, but would be 

permitted by the FOIA to withhold information relating to a covered person that falls within an exemption of the FOIA, such as 

the exemption for information contained in or related to examination reports of the covered person. Nevertheless, under section 

123(b) of the proposed CFPA Act, the CFPA may, in accordance 

with confidentiality rules prescribed by the agency, publicly disclose proprietary information obtained from ‘‘covered persons’’ in 

connection with the exercise of the agency’s authorities under the 

proposed CFPA Act. 

Q.12. Please clarify the extent to which online and offline privacy 

regulation would fall within the jurisdictional responsibility of the 

CFPA. Please provide specifics relative to what privacy statutes 

would be subject to CFPA supervision and regulation and which 

ones would not. 

A.12. The proposed CFPA Act would transfer to the CFPA responsibility for rulemaking and primary enforcement of the notice and 

opt-out provisions of the GLBA, 15 U.S.C. §§6802–6809, but not the 

data security provisions of section 501 of the GLBA. 15 U.S.C. 

§6801. The proposed CFPA Act calls for these financial privacy 

issues to transfer to the CFPA because it will have exclusive authority over a wide range of issues involving notices that are provided to consumers in connection with obtaining financial products 

or services. Accordingly, transferring to the CFPA the authority to 

administer these parts of the GLBA privacy provisions will facilitate the purpose of consolidating Federal authority over notices for 

consumer financial products and services, including issues relating 

to disclosures of personally identifiable financial information. In 

addition, to the extent that the FCRA is characterized as a privacy 

statute, the proposed CFPA Act would transfer to the CFPA responsibility for rulemaking and primary enforcement of the ‘‘privacy’’ provisions of the FCRA, such as the limits on use of information by affiliates for marketing purposes under section 624. 15 

U.S.C. §1681s-3. However, the data security provisions of the 

FCRA, such as the disposal requirements under section 628, 15 

U.S.C. §1681w, would not be transferred from the Federal Trade 

Commission and the Federal functional regulators to the CFPA 

under the proposed CFPA Act. 

Q.13. With respect to ‘‘financial data processing,’’ as defined in proposed section 1002(18)(J), does any level of direct or indirect involvement in the transmission or processing of this data suffice for 

purposes of being subject to the terms of H.R. 3126? 

A.13. Not all persons that process financial data would be ‘‘covered 

persons’’ under the proposed CFPA Act. More specifically, even 

though a person that engages in ‘‘financial data processing’’ would 

be engaging in a financial activity covered under the proposed 

CFPA Act, that activity, by itself, is not sufficient to be covered by 

the Act. For example, a person that performs data processing activities for persons for business purposes (as opposed to personal, 
115 

family, or household purposes) would be acting outside the scope of 

the proposed CFPA Act. On the other hand, a person engaged in 

‘‘financial data processing’’ would be a ‘‘covered person’’ under the 

proposed CFPA Act if the activity is ‘‘in connection with the provision of a consumer financial product or service.’’ A person also 

would be covered if it provides financial data processing to a covered person, ‘‘in connection with the provision of a consumer financial product or service,’’ and ‘‘provides a material service to, or 

processes a transaction on behalf of, [that covered person].’’ 

Q.14. The proposal goes to great length to underscore the active involvement of the States, both with respect to enforcing the law, as 

reflected in this proposal, and with respect to initiating their own 

efforts at consumer protection. Since Federal preemption currently 

exists, under certain circumstances, and since any such preemption 

would be abolished under this proposal, would this bill, in effect, 

reinstate any preexisting State laws and/or regulations that have 

been set aside or rendered inapplicable by virtue of Federal preemption? 

A.14. In large measure, the Administration’s proposed CFPA Act 

would preserve the status quo with respect to the relation of State 

laws to Federal laws governing the provision of consumer financial 

products and services. In general, the proposed CFPA Act would 

not annul, alter, or affect the application of a State law, except to 

the extent that a State law is inconsistent with the Act, and then 

only to the extent of such an inconsistency. A State law that affords greater protection to consumers would not be inconsistent 

with the proposed CFPA Act and, therefore, would continue to 

apply. 

Since the adoption of the first major Federal financial consumer 

protection law, the Truth in Lending Act, in 1969, Congress has 

with limited exceptions explicitly allowed the States to adopt laws 

to protect financial consumers so long as these laws do not conflict 

with Federal statutes or regulations. Federal law thus establishes 

a floor, not a ceiling. We propose to preserve that arrangement. It 

reflects a decades-long judgment of Congress, which we share, that 

States should retain authority to protect the welfare of their citizens with respect to consumer financial services. Federal law ensures all citizens a minimum standard of protection wherever they 

reside. Citizens of a State, however, should be able to provide 

themselves—through their legislators and governors—more protection. 

The continued ability of citizens to protect themselves through 

their States is crucial to ensuring a strong Federal standard. Because Washington, DC, is not the source of all wisdom, State initiatives can be an important signal to Congress and Federal regulators of a need for action at the Federal level. Even with the best 

of intentions and the best of staff, it is impossible to simply mandate that Federal laws or rules remain updated, since practices 

change so quickly. States are much closer to abuses as they develop, and are able to move much more quickly when necessary. 

For example, the States were far ahead of the Federal Government 

in regulating subprime mortgages. If States were not permitted to 

take initiative, the Federal Government would lose a critical source 
116 

of information and incentive to adjust standards over time to address emerging issues. 

If the CFPA is created and endowed with the authorities we have 

proposed, we expect it will promote regulatory consistency even 

while it respects the role of the States. Many of the State laws that 

have created the concern for nonuniformity can be attributed in 

large part to the absence of Federal leadership. The Federal Reserve had authority to regulate subprime mortgages since 1994. It 

signaled publicly in 2001, however, that it was willing to regulate 

only a small portion of the subprime market. It is hardly surprising 

that more than one half of the States then moved to adopt their 

own predatory mortgage lending laws. 

We believe a strong and independent CFPA that is assigned a 

clear mission to keep protections up-to-date with changes in the 

marketplace will reduce the need for State action and increase 

legal uniformity. If States retain the ability to keep the CFPA on 

its toes and the CFPA has the authority it needs to follow the market and keep protections up-to-date, then the CFPA will be more 

likely to set a high standard that will satisfy a substantial majority 

of States. 

To be sure, federally chartered institutions have recently enjoyed 

immunity from certain State consumer protection laws, and we propose to change that to ensure a level playing field. National banks 

must already comply with a host of State laws, such as those dealing with foreclosures, debt collection, privacy, and discrimination. 

Under our proposal, federally chartered depository institutions and 

their State-incorporated subsidiaries would be subject to nondiscriminatory State consumer protection and civil rights laws to 

the same extent as other financial institutions. We also propose 

that States be able to enforce these laws, as well as regulations of 

the CFPA, with respect to federally chartered institutions, subject 

to appropriate arrangements with prudential supervisors. 

We would preserve preemption where it is critical to the Federal 

charter. Our proposal explicitly does not permit the States to discriminate against federally chartered institutions. Discriminatory 

State laws would continue to be preempted. Moreover, we do not 

seek to overturn preemption of State laws limiting interest rates 

and fees (the Smiley and Marquette decisions). National banks 

would continue to enjoy an effective immunity from State usury 

laws. Nor do we seek to disturb the OCC’s exclusive authority over 

national banks with respect to prudential regulation and supervision. In this way, we would preserve the value of the national 

bank charter. 

We would be happy to work with Congress to establish a reasonable transition period for implementation of the new National Bank 

Act preemption standards. 

RESPONSES TO WRITTEN QUESTIONS OF SENATOR BENNETT 

FROM STEPHEN W. JOYNT 

Q.1. As we move forward on strengthening the regulation of credit 

rating agencies, it is important that we do not take any action to 

weaken pleading and liability standards of the Private Securities 

Litigation Reform Act of 1995. This Committee worked long and 
117 

hard, and in a completely bipartisan fashion, to craft litigation that 

would help prevent abusive ‘‘strike’’ suits by trial lawyers. These 

suits benefited no one but the lawyers who orchestrated these 

suits. This was a real problem then, and could become a real problem again if we dilute the current standard that applies to all market participants. Perpetrators of securities fraud, and those who act 

recklessly, can be sued under the law we passed in 1995. 

Is there any justification for now altering this standard just for 

credit rating agencies? 

A.1. No. Altering the pleading and liability standards of the 

PSLRA just for credit rating agencies is neither warranted nor justified. In passing the PSLRA in 1995, Congress struck a delicate 

balance between two important competing goals: to curb frivolous, 

lawyer-driven litigation while preserving investors’ ability to recover on meritorious claims. Consistent with these principles, 

under current law, credit rating agencies are liable for securities 

fraud. A claim for securities fraud levied against a credit rating 

agency by an investor will survive a motion to dismiss provided the 

investor is able to plead the elements of securities fraud, in particular facts from which a reasonable person could strongly infer 

the agency acted intentionally or recklessly to a degree sufficient 

to meet the scienter requirement as interpreted by the courts. 

Q.2. Will the threat of class action litigation, and the costs of endless discovery, be at cross-purpose with the goal of fostering greater 

competition in credit rating markets? 

A.2. Amending the pleading standards of the PSLRA to allow 

strike suits against credit rating agencies is most certainly at 

cross-purpose with the goal of fostering greater competition in credit rating markets. Congress adopted the PSLRA to curb the practice of plaintiffs filing complaints for securities fraud against firms 

whether or not there was evidence of fraud in the hope that they 

would find evidence to support their claims through the discovery 

process. 

Congress acted in recognition of the fact that such lawsuits require firms to expend huge sums defending or settling claims of securities fraud, regardless of guilt, among other things, making it 

more difficult for smaller firms to compete. Rolling back the PSLRA 

reforms as they apply to credit rating agencies will place a substantial burden on all agencies, and possibly overwhelm newer entrants 

to the market. Ratings are forward-looking assessments of future 

performance. Whenever actual performance is out of line with a 

forward-looking assessment, in hindsight, to an investor it will always look like the NRSRO could have reasonably foreseen future 

problems with better stress testing, etc. 

Q.3. Would this potential create a disproportionate burden for 

smaller players in the industry? 

A.3. The burden placed on any one agency will depend on the size 

of agency’s revenue base, the volume and types of credit rating 

products offered by the agency, and the markets in which it operates. Agencies with a smaller revenue base are typically able to 

support a smaller cost base and consequently are likely to bear a 

disproportionate burden. 
118 

Q.4. Do you believe that the threat of harassment litigation could 

act as a barrier to entry to those considering entry into the rating 

agency business? 

A.4. Yes. Smaller agencies considering application for NRSRO status reasonably can be expected to be deterred by the threat of excessive litigation costs. The threat of harassment litigation can also 

reasonably be expected to have a chilling effect on agencies seeking 

to better serve investors through the assignment of agency initiated ratings. 

RESPONSES TO WRITTEN QUESTIONS OF SENATOR BENNETT 

FROM JAMES H. GELLERT 

Q.1. As we move forward on strengthening the regulation of credit 

rating agencies, it is important that we do not take any action to 

weaken pleading and liability standards of the Private Securities 

Litigation Reform Act of 1995. This Committee worked long and 

hard, and in a completely bipartisan fashion, to craft litigation that 

would help prevent abusive ‘‘strike’’ suits by trial lawyers. These 

suits benefited no one but the lawyers who orchestrated these 

suits. This was a real problem then, and could become a real problem again if we dilute the current standard that applies to all market participants. Perpetrators of securities fraud, and those who act 

recklessly, can be sued under the law we passed in 1995. 

Is there any justification for now altering this standard just for 

credit rating agencies? 

A.1. Senator Bennett, I agree that there are broad implications for 

the treatment of liability standards for the ratings agencies, and 

more widely for participants in the securities industry. The rating 

agencies are popular targets currently and the popular ground 

swell for them to be accountable for their alleged mistakes leading 

to the subprime crises is likely to grow, not diminish. 

I believe the focus on liability runs the risk of being disproportionately central to attempts to ‘‘fix’’ the ratings business. This isn’t 

to say that malfeasance or negligence should be acceptable; it is 

simply to note that the threat of liability has rarely been an effective deterrent for bad behavior in the finance industries. 

Q.2. Will the threat of class action litigation, and the costs of endless discovery, be at cross-purpose with the goal of fostering greater 

competition in credit rating markets? 

A.2. Anything that increases the costs of entering the ratings business has the risk of hindering competition. A basic challenge to 

building any new business is projecting costs. The specter of the 

costs associated with internal and external counsel necessary to 

protect against class action litigation and discovery is ominous and 

difficult to project. Ironically, the firms that benefit the most from 

a new and more litigious ratings environment are the Big Three, 

S&P, Moody’s and Fitch, and these are the ones theoretically most 

in the crosshairs of this initiative. All three of these firms continue 

to generate large profits from their businesses and two of the three 

have massive multination corporations backing them. Increased 

legal costs are rounding errors in their businesses and are cheap 

prices for them to pay for further solidifying their oligopoly. 
119 

Q.3. Would this potential create a disproportionate burden for 

smaller players in the industry? 

A.3. The costs of insurance, not to mention actual legal costs, could 

exponentially increase the costs of running a competing firm in the 

earlier years of development. It would almost certainly become the 

largest cost line-item in our firm’s budget, since we use no analysts 

and do not have the commensurately high personnel costs that a 

traditional firm would have. 

As I have outlined in my written testimony, the NRSRO designation is currently the supposed carrot on the stick for aspiring ratings firms. All of the direct and contingent costs associated with increased legal liability create further disincentive to firms like 

Rapid Ratings and make applying for NRSRO status less appealing. This isn’t to avoid responsibility, this is to avoid the potentially 

punishing costs to which we’d be subject with the NRSRO status. 

This is a dramatic unintended consequence of the currently contemplated increased liability standards and other rule revisions 

being contemplated. 

Q.4. Do you believe that the threat of harassment litigation could 

act as a barrier to entry to those considering entry into the rating 

agency business? 

A.4. Absolutely. 

RESPONSES TO WRITTEN QUESTIONS OF SENATOR BENNETT 

FROM JOHN C. COFFEE, JR. 

Q.1. As we move forward on strengthening the regulation of credit 

rating agencies, it is important that we do not take any action to 

weaken pleading and liability standards of the Private Securities 

Litigation Reform Act of 1995. This Committee worked long and 

hard, and in a completely bipartisan fashion, to craft litigation that 

would help prevent abusive ‘‘strike’’ suits by trial lawyers. These 

suits benefited no one but the lawyers who orchestrated these 

suits. This was a real problem then, and could become a real problem again if we dilute the current standard that applies to all market participants. Perpetrators of securities fraud, and those who act 

recklessly, can be sued under the law we passed in 1995. 

Is there any justification for now altering this standard just for 

credit rating agencies? 

A.1. Answer not received by time of publication. 

Q.2. Will the threat of class action litigation, and the costs of endless discovery, be at cross-purpose with the goal of fostering greater 

competition in credit rating markets? 

A.2. Answer not received by time of publication. 

Q.3. Would this potential create a disproportionate burden for 

smaller players in the industry? 

A.3. Answer not received by time of publication. 

Q.4. Do you believe that the threat of harassment litigation could 

act as a barrier to entry to those considering entry into the rating 

agency business? 

A.4. Answer not received by time of publication. 
120 

RESPONSES TO WRITTEN QUESTIONS OF SENATOR BENNETT 

FROM LAWRENCE J. WHITE 

Q.1. As we move forward on strengthening the regulation of credit 

rating agencies, it is important that we do not take any action to 

weaken pleading and liability standards of the Private Securities 

Litigation Reform Act of 1995. This Committee worked long and 

hard, and in a completely bipartisan fashion, to craft litigation that 

would help prevent abusive ‘‘strike’’ suits by trial lawyers. These 

suits benefited no one but the lawyers who orchestrated these 

suits. This was a real problem then, and could become a real problem again if we dilute the current standard that applies to all market participants. Perpetrators of securities fraud, and those who act 

recklessly, can be sued under the law we passed in 1995. 

Is there any justification for now altering this standard just for 

credit rating agencies? 

Will the threat of class action litigation, and the costs of endless 

discovery, be at cross-purpose with the goal of fostering greater 

competition in credit rating markets? 

Would this potential create a disproportionate burden for smaller 

players in the industry? 

Do you believe that the threat of harassment litigation could act 

as a barrier to entry to those considering entry into the rating 

agency business? 

A.1. Since I am not a lawyer (and do not practice law without a 

license) and I have only a modest familiarity with the Private Securities Litigation Reform Act of 1995, I am really not qualified to answer these questions. However, I do believe that a blanket First 

Amendment protection for rating agencies is too broad—while I 

recognize that an increased level of liability to damages from lawsuits will make life more difficult for credit rating agencies, especially smaller firms and potential entrants. Accordingly, there 

needs to be a better balance than is present now in encouraging 

rating agencies to take the appropriate level of care in supporting 

their judgments. 

RESPONSES TO WRITTEN QUESTIONS OF SENATOR BENNETT 

FROM MARK FROEBA 

Q.1. As we move forward on strengthening the regulation of credit 

rating agencies, it is important that we do not take any action to 

weaken pleading and liability standards of the Private Securities 

Litigation Reform Act of 1995. This Committee worked long and 

hard, and in a completely bipartisan fashion, to craft litigation that 

would help prevent abusive ‘‘strike’’ suits by trial lawyers. These 

suits benefited no one but the lawyers who orchestrated these 

suits. This was a real problem then, and could become a real problem again if we dilute the current standard that applies to all market participants. Perpetrators of securities fraud, and those who act 

recklessly, can be sued under the law we passed in 1995. 

Is there any justification for now altering this standard just for 

credit rating agencies? 

A.1. Yes, there is ample justification for altering the pleading and 

liability standards just for the credit rating agencies. Here are 

three arguments in support of changing these standards. 
121 

First, the major rating agencies have enjoyed the privilege of a 

Government-sponsored monopoly for many years. In order to reduce the negative consequences of this monopoly, the Government 

also encouraged competition among the agencies. There is overwhelming circumstantial evidence that the agencies responded by 

competing with each other not on price or efficiency or productivity 

or quality but, instead, on rating standards, revising rating methodologies and standards whenever necessary to build or maintain 

market share and revenue. Changing pleading and liability standards for the agencies would provide a key restraint should rating 

standards ever again end up in competitive free fall. Fear of liability will curb the appetite for market share, dampen the negative 

effects of competition, improve rating quality and, thereby, ultimately make lawsuits less necessary. The rating agencies, in exchange for continuing to enjoy the privilege of a Government-sponsored monopoly, should be subjected to easier pleading and liability 

standards at least where litigants claim that bad ratings have injured them. 

Second, when the rating agencies generate bad credit opinions, 

they have nothing at risk except their reputations. Other market 

participants involved in the transactions that failed in the 

subprime crisis, e.g., investment banks, investors, and collateral 

managers, all had some financial stake in these transactions. When 

these participants got it wrong, they were punished by financial 

losses, in some cases even to the point of bankruptcy. Having a significant financial risk is enough to warrant separate pleading and 

liability standards for these market participants. If reputation risk 

alone once provided the rating agencies with the same kind of incentives as financial risk, Enron taught them a new lesson. The 

bankruptcy of Enron within only days of losing its investmentgrade ratings did severe damage to the reputation of the agencies 

but did little to hurt their business. In the aftermath of Enron, the 

rating agencies enjoyed some of their most profitable years ever. 

Thus, fear of reputation damage after Enron did nothing to check 

the ratings that caused the subprime crisis. It would be very difficult now to overstate the damage that the subprime crisis has 

done to the reputation of the rating agencies. If they all survive the 

current crisis unscathed—as seems almost certain—they will be 

taught a lesson very dangerous to world financial system: no matter how bad their ratings, no matter how damaged their reputations, they will not fail and the rating business will not go away 

because there is nowhere else for it to go. Without incentives that 

are far more potent than reputation risk, we cannot expect the rating agencies to reform themselves and impose greater quality and 

accuracy on their ratings. 

Third, the rating agencies have long enjoyed near complete immunity from liability for bad ratings. This immunity is based upon 

an old line of cases that found the rating business—assigning and 

reporting ratings—to be a form of journalism subject to free speech 

protections. More than 40 years ago, this finding had some merit. 

The rating agencies assigned ratings to bonds and then reported all 

of their ratings in periodicals sold to subscriber/investors. Bond 

issuers paid the rating agencies nothing. However, the rating agencies largely abandoned this model 40 years ago. The new model 
122 

shifts the cost of the rating from subscriber/investors (eager for the 

most accurate rating) to bond issuers (eager for the highest rating). 

It is easy to see how the new model changed the rating agencies’ 

incentives. It is also difficult to imagine how real journalism could 

make a similar business-model switch. (It would be as if each 

newspaper story were commissioned by the subject of the story, 

based solely upon facts submitted by the subject, and published 

only upon the subject’s approval of the story and payment of a fee 

for its writing and publication.) Eventually, the courts will discover 

that the credit rating business is no longer anything like a form of 

journalism and should not be entitled to free speech protections. 

This will not happen overnight and may be a long and expensive 

process. In the meantime, the financial markets need help restoring their confidence in the quality and integrity of credit ratings 

assigned today. Changing the pleading and liability standards just 

for the agencies is an important first step in this process. 

Q.2. Will the threat of class action litigation, and the costs of endless discovery, be at cross-purpose with the goal of fostering greater 

competition in credit rating markets? 

A.2. No. Some of the newly formed rating agencies are adopting an 

investor-pay business model. These new agencies will enjoy the 

same free speech protections that have so far shielded the major 

rating agencies from litigation. If investor-pay rating agencies continue to enjoy this protection while issuer-pay agencies lose it, the 

result will be a very strong incentive for new agencies to adopt the 

investor pay model. Second, even now the rating business enjoys 

very high profit margins. Unlike other businesses with such high 

profit margins, the rating business has virtually no costs for research and development or advertising. Even if current profit margins were cut in half by litigation costs, they would remain very attractive compared to other businesses and a strong enticement to 

the creation of new rating agencies. If the risk of litigation materially improves rating quality and integrity (and thereby prevents 

another ratings driven financial crisis like the second subprime crisis), this benefit will far outweigh whatever costs litigation imposes. 

Q.3. Would this potential create a disproportionate burden for 

smaller players in the industry? 

A.3. No. Small players will not be attractive targets for harassment 

litigation not only because they do not have the ‘‘deep pockets’’ attractive to such litigation but also because they have no history of 

bad ratings. They will only be at risk of such litigation during the 

next Enron or subprime crises. In a normal rating environment, it 

often takes years for a transaction to go bad and for ratings to appear wrong. New agencies should not face a litigation burden for 

quite some time. In the meantime, the biggest burden for smaller 

players in the industry will be lack of demand for their ratings. 

Unless Government policy vigorously encourages the use of ratings 

from new rating agencies, the new agencies may never survive long 

enough to suffer the litigation burden implied by this question. 
123 

Q.4. Do you believe that the threat of harassment litigation could 

act as a barrier to entry to those considering entry into the rating 

agency business? 

A.4. No. The threat of harassment litigation will do two things. 

First, as noted above, it will create a strong incentive for new agencies to adopt the investor-pay model. Under this model, rating 

agencies should continue to enjoy significant free speech protection 

against liability for ratings and considerable immunity from litigation. Thus, the potential for harassment litigation could have the 

positive effect of inducing more new agencies to adopt the issue-pay 

model. Second, litigation targeting the rating agencies will be related to bad ratings assigned in the past. New agencies will not be 

subject to such litigation. Thus, in theory they will have a competitive advantage over existing rating agencies which must incorporate the cost of this litigation into their rating fees. 
124 

ADDITIONAL MATERIAL SUPPLIED FOR THE RECORD

Hearings Before the Committee on Banking, Housing, and Urban Affairs (January–August 2009) 

Date Hearing Title 

January 13 .................... Nomination of Shaun Donovan 

January 15 .................... Nominations of Mary Schapiro, Christina D. Romer, Austan D. Goolsbee, Cecilia E. Rouse, and 

Daniel K. Tarullo 

January 27 .................... The Madoff Investment Securities Fraud: Regulatory and Oversight Concerns and the Need for 

Reform 

February 4 ..................... Modernizing the U.S. Financial Regulatory System 

February 5 ..................... Pulling Back the TARP: Oversight of the Financial Rescue Program 

February 10 ................... Oversight of the Financial Rescue Program: A New Plan for the TARP 

February 12 ................... Modernizing Consumer Protection in the Financial Regulatory System: Strengthening Credit Card 

Protections 

February 24 ................... Federal Reserve’s First Monetary Policy Report for 2009 

February 26 ................... Homeowner Affordability and Stability Plan 

March 3 ......................... Consumer Protections in Financial Services: Past Problems, Future Solutions 

March 5 ......................... American International Group: Examining What Went Wrong, Government Intervention, and Implications for Future Regulation 

March 10 ....................... Enhancing Investor Protection and the Regulation of Securities Markets—Part I 

March 12 ....................... Sustainable Transportation Solutions: Investing in Transit To Meet 21st Century Challenges 

March 17 ....................... Perspectives on Modernizing Insurance Regulation 

March 18 ....................... Lessons Learned in Risk Management Oversight at Federal Financial Regulators 

March 19 ....................... Modernizing Bank Supervision and Regulation—Part I 

March 19 ....................... Current Issues in Deposit Insurance 

March 24 ....................... Modernizing Bank Supervision and Regulation—Part II 

March 26 ....................... Enhancing Investor Protection and the Regulation of Securities Markets—Part II 

March 31 ....................... Lessons From the New Deal 

April 16 ......................... A 21st Century Transportation System: Reducing Gridlock, Tackling Climate Change, and Growing 

Connecticut’s Economy 

April 23 ......................... Nominations of Ronald Sims, Fred P. Hochberg, Helen R. Kanovsky, David H. Stevens, Peter 

Kovar, John D. Trasvin ̃ a, and David S. Cohen 

May 6 ............................ Regulating and Resolving Institutions Considered ‘‘Too Big To Fail’’ 

May 7 ............................ Strengthening the SEC’s Vital Enforcement Responsibilities 

May 13 .......................... Manufacturing and the Credit Crisis 

May 13 .......................... Nominations of Peter M. Rogoff, Francisco J. Sanchez, Raphael W. Bostic, Sandra Henriquez, Mercedes Ma ́rquez, and Michael S. Barr 

May 20 .......................... Oversight of the Troubled Assets Relief Program 

June 3 ........................... A Fresh Start for New Starts 

June 4 ........................... Nomination of Herbert M. Allison, Jr. 

June 10 ......................... The State of the Domestic Automobile Industry: Impact of Federal Assistance 

June 16 ......................... Greener Communities, Greater Opportunities: New Ideas for Sustainable Development and Economic Growth 

June 18 ......................... The Administration’s Proposal To Modernize the Financial Regulatory System 

June 22 ......................... Over-the-Counter Derivatives: Modernizing Oversight To Increase Transparency and Reduce Risks 

July 7 ............................. Public Transportation: A Core Climate Solution 

July 8 ............................. The Effects of the Economic Crisis on Community Banks and Credit Unions in Rural Communities

July 14 ........................... Creating a Consumer Financial Protection Agency: A Cornerstone of America’s New Economic 

Foundation 

July 15 ........................... Regulating Hedge Funds and Other Private Investment Pools 

July 16 ........................... Preserving Homeownership: Progress Needed To Prevent Foreclosures 

July 17 ........................... The U.S. as Global Competitor: What Are the Elements of a National Manufacturing Strategy? 

July 22 ........................... Federal Reserve’s Second Monetary Policy Report for 2009 

July 22 ........................... Nomination of Deborah Matz 

July 23 ........................... Establishing a Framework for Systemic Risk Regulation 

July 28 ........................... Regulatory Modernization: Perspectives on Insurance 

July 29 ........................... Protecting Shareholders and Enhancing Public Confidence by Improving Corporate Governance 

July 30 ........................... Minimizing Potential Threats From Iran: Assessing Economic Sanctions and Other U.S. Policy Options 

August 4 ....................... Strengthening and Streamlining Prudential Bank Supervision—Part I 

August 4 ....................... Rail Modernization: Getting Transit Funding Back on Track 

August 5 ....................... Examining Proposals To Enhance the Regulation of Credit Rating Agencies 
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130 
131 
132 
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