Investment Losses Claims by Calpers and Others Against Ratings Agencies
Susan Beck has a great AmLaw summary article today with links to underlying complaints, and to a Wall Street Journal article on the same topic by Nathan Koppel. The articles explain that ratings agencies are defending claims by Calpers and others based in part on the notion that their pronouncements are constitutionally protected opinions that invoke First Amendment standards. The articles, however, do not address whether that argument will fly against, for example, investors not based in the United States. Claims by non-US investors plainly will create choice of law issues.
In Illinois, there are fairly well-settled rules regarding claims for negligent misrepresentation of information. Inquiry will focus on, among other things, the scope of the duty related to the information supplied. A 2006 Illinois Supreme Court opinion (here) states the rules as follows:
“To state a claim for negligent misrepresentation, a plaintiff must allege: (1) a false statement of material fact; (2) carelessness or negligence in ascertaining the truth of the statement by the party making it; (3) an intention to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; (5) damage to the other party resulting from such reliance; and (6) a duty on the party making the statement to communicate accurate information. Board of Education of the City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 452 (1989). See also Fox Associates, Inc. v. Robert Half International, Inc., 334 Ill. App. 3d 90, 94 (2002); Neptuno Treuhand-Und Verwaltungsgesellschaft Mbh v. Arbor, 295 Ill. App. 3d 567, 572-74 (1998). Where, as here, purely economic damages are sought, this court has imposed a duty on a party to avoid negligently conveying false information only if the party is in the business of supplying information for the guidance of others in their business transactions. Brogan v. Mitchell International, Inc., 181 Ill. 2d 178, 183-84 (1998); Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 89 (1982).” (emphasis added).