A few months ago, plaintiffs' lawyers at Robbins Geller Rudman &
Dowd created quite a stir when they filed thousands of pages of
deposition transcripts and other juicy discovery in an
investors' fraud case against Morgan Stanley, Standard & Poor's
and Moody's. The documents -- exhibits to the investors' summary
judgment motion -- included never-before-seen internal
communications between Morgan Stanley and the rating agencies as
they worked on a structured investment vehicle known as Cheyne,
putting on public display the allegedly half-cocked evaluations
that Moody's and S&P performed in 2005, when they were swamped
with subprime mortgage-backed financial instruments to rate.
On Wednesday, the Robbins Geller team, led by Daniel Drosman
and Luke Brooks, filed a new brief in a parallel case accusing
Morgan Stanley, S&P, Moody's and Fitch of defrauding two pension
funds that invested in an SIV called Rhinebridge, which, in
contrast to the Cheyne SIV, was sold in July 2007, as the
housing bubble was already collapsing. It's another must-read
for students of the financial crisis.
The Rhinebridge brief, which also references all kinds of
evidence from inside the bank and the rating agencies, doesn't
have as many notable quotables as the Cheyne filing. But its
allegations are, in a way, even grimmer. According to the brief,
which opposes motions for summary judgment by Morgan Stanley and
the rating agencies, the defendants all knew the end was near
for mortgage-backed securities. Yet (again, according to the
brief) Morgan Stanley pushed the agencies to deliver high
ratings on the Rhinebridge SIV, even as S&P and Moody's
supposedly questioned the percentage of shaky mortgage loans
packed into it. Then, despite internal fears that Rhinebridge
was too risky to survive, Morgan Stanley allegedly marketed the
SIV to Robbins Geller's clients, mentioning nothing about its
concerns the investment would collapse. Just four months after
Rhinebridge launched, and two months after the pension funds
bought in, the SIV defaulted, en route to being auctioned off at
steep losses for investors.
I should note here that Morgan Stanley and the credit rating
agencies have also moved for summary judgment, arguing that the
plaintiffs, which are sophisticated investors, haven't produced
evidence that the defendants engaged in fraud or that the funds
justifiably relied on the defendants' representations about
Rhinebridge. (Here's the Morgan Stanley summary judgment brief,
filed by its lawyers at Davis Polk & Wardwell; here's the joint brief on behalf of Moody's and S&P, which are represented by
Satterlee Stephens Burke & Burke and Cahill Gordon & Reindel;
and here's Fitch's summary judgment brief, filed by Paul, Weiss,
Rifkind, Wharton & Garrison.) Representatives for all of the
defendants told me the allegations in the investors' summary
judgment brief are meritless, that they behaved properly and
that they will eventually prevail in the litigation; S&P
spokesman Edward Sweeney said, in particular, that the defense
will respond specifically to the plaintiffs' assertions in a
forthcoming brief.
Nevertheless, it's news when evidence about the credit
rating agencies' role in the financial crisis comes to light.
And according to this brief, the agencies were much more
concerned about maintaining their lucrative business in rating
structured finance products than about the quality of their
ratings. In part, that meant conceding to the demands of a
client like Morgan Stanley, according to the brief. The
Rhinebridge SIV had significantly higher exposure to subprime
mortgages than was typical, so, according to the brief, Morgan
Stanley had to push S&P and Moody's to confer top ratings. The
filing cites, for instance, a document from Morgan Stanley
banker Gregg Drennan to SIV manager IKB Deutsche Industriebank,
calling on IKB to "lobby" S&P because the agency "suggested that
(it) might not rate the deal!!!"
The bank also allegedly pressed Moody's and S&P to use an
obsolete rating model because it knew that Rhinebridge would
otherwise rate poorly. (S&P allegedly admitted that its imminent
downgrade of hundreds of mortgage-backed securities didn't
affect its modeling on the Rhinebridge SIV.) And Fitch,
according to the brief, had been so wary of the Cheyne SIV that
was the model for Rhinebridge that it refused to rate Cheyne in
2005. But by 2006 it was so eager to gain a piece of the market
in SIV ratings that it offered to rate Rhinebridge at a
discount.
The credit rating agencies ultimately gave the SIV the
ratings it needed to attract investors. But meanwhile, according
to the Rhinebridge investors, Morgan Stanley and the rating
agencies were bracing for the subprime market to collapse. The
brief cites, for instance, a 2007 report from the S&P board that
predicted disastrous consequences for the agency from a mortgage
meltdown. At Moody's, the team rating Rhinebridge allegedly
discussed the "recent high default trend of the US subprime
mortgages" and met with IKB in March 2007 "to discuss the
sub-prime housing market from the perspective of the rating
agencies."
Morgan Stanley allegedly knew the impact the imploding
housing market would have on Rhinebridge. According to the
brief, Morgan banker Drennan predicted a low rating from Moody's
and said the SIV deserved it because of its subprime exposure.
The brief quoted the SIV's manager, IKB, telling a Morgan banker
in March 2007 that "the whole (Rhinebridge) project is getting
the smell of a disaster." By May 2007, when the SIV was on the
verge of launching and underlying assets were rapidly
deteriorating, IKB allegedly told a Morgan Stanley trader to
"work his magic" when providing prices on 99 of the 101 riskiest
home-equity assets transferred into the Rhinebridge SIV. "Morgan
Stanley had such grave concerns about the Rhinebridge SIV that
-- just days before it launched -- (the bank) stripped all
information identifying (it) as the arranger from the ...
private placement," the brief asserted.
Overall, the Rhinebridge investors' brief, and the internal
documents it relies on, serve to reinforce everyone's most
cynical assumptions about the financial crisis. Morgan Stanley
and the rating agencies now have an opportunity to explain why
the investors are misreading the evidence. I can't wait to see
what they have to say.
(Reporting by Alison Frankel)
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