The First Amendment offers wide protections to journalists from government subpoenas and other probing eyes. But does it also protect credit-rating agencies that stamp their seal of approval on a company's bonds?
That's the latest twist in the
saga, as a major credit-rating agency seeks to use the First Amendment to oppose a demand that it turn over any information it may have about Enron's off balance sheet financing deals.
Standard & Poor's, one of the big three ratings agencies, claims it has a "journalistic privilege" in objecting to the document request from the special examiner in the Enron bankruptcy. In a recent court filing, the agency contends the document request "raises constitutional issues of the most troubling sort" and "will necessarily intrude upon the precise First Amendment protections."
What S&P specifically objects to is a sweeping demand by the Enron examiner that would force the agency to turn over all its notes and confidential research about dozens of Enron's off balance sheet deals and other structured finance ventures. The agency contends the request is far too broad and urges the examiner, Atlanta attorney Neal Batson, to scale back his motion.
But it appears S&P is gearing up for a pitched court battle in the event Batson doesn't back down. The ratings agency, a division of the publishing company
, has retained noted First Amendment attorney Floyd Abrams to represent it in a potential court battle before U.S. Bankruptcy Judge Arthur Gonzalez.
Similar subpoenas also were served earlier this month on two other credit-rating agencies,
Moody's Investors Services
. In a brief two-page letter filed with the bankruptcy court on Thursday, Moody's raised a similar First Amendment argument. Fitch has not yet filed any formal objection.
Officials from the three credit-rating agencies could not be reached for comment. A lawyer in Batson's office also could not be reached.
For nearly a year, Batson has been gathering mountains of documentary evidence from hundreds of Wall Street banks and law firms that did work for Enron. Back in August, for instance, similar document requests were served on
J.P. Morgan Chase
and Credit Suisse First Boston, a division of
Credit Suisse Group
. This is the first time he's sought information from the credit-rating agencies that had blessed Enron's corporate debt with an investment grade rating.
Batson has been charged by the bankruptcy court with trying to unravel the dozens of off balance sheet entities Enron used to hide billions of dollars in debt and artificially inflate its earnings. Last month Batson issued a 2,100-page report that concluded Enron's off balance sheet maneuvers enabled it to hide more than $11 billion in debt from investors and inflate its earnings by as much as $900 million in 2000 -- the year Enron's stock peaked at $90 a share.
The potential legal fight between S&P, Moody's and Batson, however, comes at a dicey time for the ratings agencies.
Last year the three major agencies came under heavy criticism for moving too slowly in downgrading Enron's credit rating and even giving their blessing to some of Enron's off balance sheet maneuvers. A congressional panel held hearings into the role of the credit agencies and demanded that they reform their practices.
Securities and Exchange Commission
, meanwhile, is conducting its own review into the work of the credit rating agencies. As mandated by last year's corporate reform law, the SEC will soon release an analysis of the performance of the ratings agencies and may recommend changes in the way they operate.
But S&P contends it stands on sound legal footing in challenging the examiner's request. In the court filing, it said that other bankruptcy judges have denied similar requests for documents, by comparing the role of the ratings agencies in analyzing a company's fiscal health to that of a news organization.
S&P's constitutional objections don't sit well with some legal analysts.
"I find it an unusual argument," said Jill Fisch, a securities law professor at Fordham University School of Law. "I have to think it's sort of a dangerous argument to make. I'm not sure I want to be sending a signal that I have something to hide."
Some longtime critics of the big three credit-rating agencies, meanwhile, say S&P's legal stance is an insult to the investors that lost billions on Enron's stock and bonds. Sean Egan, president of Egan-Jones Ratings, a small ratings agency that was one of the first to downgrade Enron's bonds, said the major agencies still have a lot of questions to answer about their tardiness with Enron.
"S&P and Moody's had inside information and didn't get their calls right," said Egan. "They are doing everything in their power to protect this unhealthy system."