rating agencies

Sorry, but S&P is not a victim of the financial crisis

September 5, 2013: 10:16 AM ET

It's hard to see why the Justice Department would be out for revenge against S&P for a downgrade that didn't have much impact.

130905101426-standard-and-poors-620xaFORTUNE -- Countless victims lost big during the financial crisis: There were individual investors, homeowners, community banks, and municipalities. The list goes on.

And now five years later, Standard & Poor's, one of the three big credit rating agencies, considers itself a victim, too.

Recall, the Justice Department in February filed a $5 billion lawsuit against the firm for allegedly misleading banks and credit unions about the credibility of its ratings prior to the 2008 crisis. On Tuesday, S&P filed its rebuttal, arguing the government is suing the firm in "retaliation" for stripping the nation of its stellar "AAA" rating back in 2011.

As S&P defends itself, it's easy to lose sight of who the real victims are.

MORE: Fed bashes media on housing data

It's indeed curious why the Justice Department is only going after S&P when other firms were responsible for nearly destroying the U.S. financial system. In the years leading up to the financial crisis, other rating agencies gave top-notch ratings to what were essentially toxic assets that banks, in turn, sold to investors. When those assets went sour as the housing market collapsed, the crisis exposed deeper flaws with the way these firms do business -- namely, the companies and governments they rate also pay them.

The Justice Department has taken S&P to task, but why not Moody's (MCO) or Fitch Ratings? As S&P argues, the Justice Department's lawsuit aims to punish it for exercising its First Amendment free speech rights under the U.S. Constitution. The firm was the only major rating agency that downgraded the U.S. over concerns about Washington's ability to address the nation's swelling debt. Moody's and Fitch warned the U.S. of a downgrade but haven't actually gone through with it.

S&P may or may not be right, but that starts mattering a lot less when we revisit findings from the government's investigation, which started in 2009 -- about two years before S&P downgraded the U.S. The evidence is damning, and the victims spanned widely: There was the analyst who e-mailed colleagues a rock parody, making light of toxic investments that would later drive the economy into a disastrous subprime mortgage meltdown, according to the Justice Department's civil suit against S&P. And as early as 2007, the firm suspected the housing market would crash followed by millions of defaults and foreclosures. Rather than sound the alarms, the firm inflated ratings to win more fees from issuers, according to the Justice Department.

MORE: Are we ready for the next meltdown?

A spokesperson for S&P declined to comment Wednesday.

The firm could call itself a victim, but it's hard to see why the Justice Department would be out for revenge. Since S&P downgraded the U.S. in August 2011, it hasn't rocked markets as badly as some expected. This isn't surprising, as investors started believing the rating agencies less and less following the financial crisis. Since the downgrade, yields on Treasuries are lower, the U.S. dollar is stronger and the S&P 500 Index of stocks (SPX) has reached record highs. And when S&P in June raised its outlook on the U.S.'s credit rating to "stable" from "negative," markets pretty much snoozed at the news, too.

If anyone can call themselves victims here, it's not S&P.

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