Wall Street welcomed regulators' decision Thursday to offer a reprieve on a clause in the financial regulatory overhaul law that bankers blamed for freezing the sale of new securities in the $700 billion market for bonds backed by consumer loans.
The Securities and Exchange Commission said it will let issuers omit credit ratings from registration statements filed for new public bonds in the next six months. Moody's Investors Service, Standard & Poor's, Fitch Ratings and others had said they would forbid clients to include their ratings in documents filed with the SEC, saying the regulatory overhaul, signed into law Wednesday, potentially exposes them to an unknown degree of additional legal liability for ratings opinions included in bond registration documents.
"It appears this [move by the SEC] could alleviate short-term pressure and provide temporary relief so new issuance can get done in the public market as it has been done in the past," said Paul Jablansky, an asset-backed securities strategist at the Royal Bank of Scotland.
No consumer-loan-backed bonds have been issued this week, and industry participants were in deep discussions with lawyers about the impact of the new law and considering alternatives to the public asset-backed bond market.
"
Without the SEC's action, the securitization markets would have been flash frozen, as credit rating agencies were unable to issue new ratings without a clear understanding of their long-term legal liabilities," said Tom Deutsch, executive director of the American Securitization Forum, a trade group.
The SEC's decision "is overwhelmingly positive news for the ABS market," said Ed Gainor, a partner at Bingham McCutchen in New York. "
This action by the SEC will unfreeze the market at least temporarily. Over the longer term there will still need to be a solution because the law still exists. In the next six months someone will have to figure out what needs to change."
The law has introduced several ambiguities, including what third-party due diligence reports will be made public.
Rating firms have been lobbying hard on the issue. Standard & Poor's President Deven Sharma met with SEC Chairman Mary Schapiro on Tuesday to discuss a variety of issues, including the rule change that would expose rating firms to greater liability because they'd be considered "experts" in bond deals.
"This action will provide issuers, rating agencies and other market participants with a transition period in order to implement changes to comply with the new statutory requirement while still conducting registered ABS offerings," said Meredith Cross, director of the SEC's division of corporation finance.
Regulators had been weighing the "expert" exemption for some time. In September 2009, the SEC sought comments from industry participants about whether it should propose rescinding the exemption for credit ratings in securities registration statements. The SEC wanted to know what impact that might have on markets in light of the ratings industry's growth and how investors use credit ratings nowadays.
In December, ratings company representatives submitted letters arguing against such a rescission.
McGraw-Hill Cos.' (MHP) Standard & Poor's Ratings Services said it believed rescinding the rule "would result in troubling and unintended consequences for the market, including reduced transparency due to issuers providing less information to investors." Earlier this year, representatives of S&P and Moody's met with the SEC to discuss the issue.
Some large investors, however, have supported removing the exemption. In an April letter, the California Public Employees' Retirement System said "making credit rating agencies civilly liable for misstatements or omissions which they cause to be placed in securities offerings" would represent "a large step forward in deterring harmful conduct" by credit raters in the structured-finance area.
S&P declined to comment. Fitch and Moody's, a part of Moody's Corp. (MCO) did not immediately return calls for comment. But others applauded the SEC's move.
"
The SEC's action gives welcome relief to the ABS markets, which have been pummelled in recent days by uncertainty as a result of the recent adoption of the Dodd-Frank Act," said Lewis Cohen, partner at Clifford Chance LLP. "
People will still wonder what the next steps are and how things will play out after the exemption runs out. It's still a wide open question as to how things will play out in the longer term."
Richard Dorfman of the Securities Industry and Financial Markets Association, an industry group, said the reprieve "will allow issuers, credit rating agencies and other market participants to conduct registered ABS offerings, avoiding the potential for negative impact on the availability of financing and to the U.S. economy."