起诉信用评级机构首道障碍之跨越

Striding Across the First Hurdle to Sue Credit Rating Agencies——To Limit Invoking the First Amendment Protection

信用评级机构在金融危机中的作用已经饱受非议,但在以往的案例中几乎没有被成功起诉过。这主要是因为评级机构被定义为新闻业者,而评级结果被当作"意见",从而受到了美国宪法第一修正案对新闻出版、言论自由的保护。然而这与评级机构在实践中扮演的角色并不一致。评级机构从发行人处获得报酬、积极地参与交易的构建,并且其评级被诸多法律当作一种"基准"或者"监管许可"。所以在已经到来和即将到来的诉讼中考虑到这些因素,不宜再对这样的评级机构给予美国宪法第一修正案保护,而应使其承担起应有的责任。

The credit rating agencies which emerged during the financial crisis have been severely criticized increasingly.However,the plaintiffs had never successfully sued credit rating agencies in the past cases since credit rating agencies are regarded as journalism and their ratings are considered as opinions under the First Amendment protection of free speech and freedom of the press.This situation is obviously inconsistent with the role rating agencies playing in practice.Credit rating agencies receive payment from the issuers they rate,and participate in the structuring of transactions actively.In addition,the ratings have been regarded as"certifications"or"regulation license"by laws.Considering the factors mentioned above,the First Amendment should not shield credit rating agencies from legal liability in the existed and upcoming suits.