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Hitting the Sweet Spot by Accident: How Recent Lower Court Cases Help Realign Incentives in the Credit Rating Industry

Broad reliance on excessively optimistic credit ratings of structured financial products helped ignite and spread the recent financial crisis. A misalignment of incentives at rating agencies such as Fitch Inc., Moody’s Corporation, and Standard & Poor’s (“S&P”) contributed significantly to this excessive optimism. One proposal for better aligning incentives is to facilitate more lawsuits against the rating agencies for shoddy work. Courts have traditionally dismissed such lawsuits, deeming ratings to be fully protected speech under the First Amendment. However, two recent district court cases, Abu Dhabi Commercial Bank v. Morgan Stanley &Co., and In re National Century Financial Enterprises, Inc., Investment Litigation, adopt a different view.

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