They published opinions about the future performance of certain securities. Those opinions were incorrect. Lying would mean misrepresenting the present state of those securities, which they didn’t do. Everyone know they were buying subprime mortgages. They just expected them to trade like prime mortgages.
> the only difference between lying and knowingly misleading the point in time of the subject in question?
If I say “this stock will rise in value” and then it doesn’t, that isn’t lying. If I say that while knowing the CEO is committing felonies, it still wouldn’t be lying, but it would be problematic. If I say “this is a share of Apple” when it’s actually Twitter, that’s lying. Bad forecasts aren’t lies, they’re mistakes.
The rating agencies’ role in the crisis is interesting and nuanced, and it is difficult to fault anyone other than the investors who over-relied on (and arguably misinterpreted) their guidance.
If you look at every security the agencies rated AAA, they performed as expected in cash flows. The underlying mortgages were mostly garbage, but some kept paying. That meant the top tranche of those structures, the tranches that got a high rating, kept paying.
If you held to maturity, the securities performed as promised. (Cf: if the government hadn’t bailed out AIG, they may not have.) The problem was they crashed in value in the interim because people began doubting if they would perform. That was a problem for liquidity-constrained investors, which was almost everyone in 2008. Rating agencies don’t say “this bond won’t trade at 50¢ on the dollar.” They say “this bond will probably pay you back.” And in the latter assessment, they were surprisingly accurate. The problem was people took the second to mean the first.
As the Devil's Advocate, one can argue that the fraud was perpetrated at the peon level of the loan originators, who originated loans to people that could not afford the loans. The executives hands were washed clean by the ratings agencies that gave out AAA ratings. Those high ratings were "reasonable" because the loans were consolidated into CDOs and the top traunche(s) of the CDOs can handle a few missed payments from some of the debtors. In hindsight, many of those products probably should not have been AAA rated (especially ones that consolidated lower traunches of other CDOs). If there was a law that stated that ratings agency executives go to jail when AAA rated products fail (i.e., make them strictly liable for top rated products instead of relying on reputation alone), those executives would likely pay better attention to which products get AAA ratings. Looking back, there was no such law and the ratings agencies were free to give out improper ratings backed by their reputations.
Skipping back to private consumer data, a law that clearly states that executives go to jail when there is a breach of private consumer data would likely increase the chances that the executives will pay better attention to what data is collected, how data is stored, and how data is protected.
Tangential topic: an interesting regulatory idea would be to have mandatory jail time for all executives (and board members) of a company of a minimum size that is successfully sued in a class action for more than X dollars. Make it strictly liable so that no direct knowledge is required to convict so as to punish executives who allow their companies to harm the public. If an executive allows their company to harm the public, then that person is not fit to serve as an executive.
