Philly Deals: Government picks on the little guy

Sean Egan, head of the small Haverford-based credit-rating agencyEgan-Jones, was targeted by the SEC. Not so the big agencies.
Sean Egan, head of the small Haverford-based credit-rating agencyEgan-Jones, was targeted by the SEC. Not so the big agencies.
Posted: April 29, 2012

Plaintiffs’ lawyers famously chase society’s “deep pockets,” suing not the worst among us, but rich, slow-moving companies, people and institutions, on any convenient pretext, in hopes of grabbing enough dollars to get them to go away.

Government does the reverse. Too often, agencies walk carefully around powerful potential malefactors and instead target people with relatively shallow pockets — brave, or just careless — who challenge the powerful.

Here are two fresh examples.

In 2007, Sean Egan, boss at Haverford-based Egan-Jones, an upstart credit-rating agency, correctly predicted the default of home-loan-backed financial instruments that had been given top marks by credit-rating giants Standard & Poor’s and Moody’s. Egan testified in Washington and pontificated for the New York financial media against the conflicted way the big rating agencies took money from the firms they judged, then failed to tell the truth.

Last week, the Securities and Exchange Commission finally took the rare step of suing a credit-rating agency for lying: Egan-Jones, which, the SEC said solemnly, was just Egan and a small staff, had exaggerated its size and scope when it applied for federal recognition back in 2008 and had failed to set up adequate compliance with new antifraud rules.

I asked the SEC (which notes it follows policies set in Congress) what other actions it had launched against rating agencies since then. Spokesman Kevin Callahan came up with one: a complaint against another upstart firm, also for lying on its application.

S&P and Moody’s still dominate the ratings games, still take money from the people they are supposed to watchdog. And the SEC, nearly five years after the financial freeze, “has still not demanded accountability for the national ratings firms in connection with the markets’ collapse,” says Egan’s lawyer, Jacob Frenkel.

And then there’s Harrisburg.

As the city went broke last year, a victim of its narrow urban tax base and copious borrowing for an outdated incinerator, fanciful museums, and other projects that benefited no one but the army of bond professionals, investors, and political allies who live off taxpayer borrowing and other government contracts, the state started making plans to strip city assets and feed them to the bondholders.

Opposing them — late in the day — the City Council asked Bryn Mawr lawyer Mark D. Schwartz to file for a rare reorganization in federal bankruptcy court as a way of maybe saving the city’s assets and getting the investors and contractors to share its groaning debts.

It was a longshot. Harrisburg’s mayor opposed the move. Gov. Corbett and his allies ran a bill through the General Assembly that gave the state more power to block city action. The courts turned Schwartz down. He kept appealing.

Under his new law, Corbett recommended, and Commonwealth Court approved, a veteran bond lawyer, David Unkovic — another Main Liner — to take over Harrisburg’s finances. But as Unkovic pored over city records, confronted with a court ruling that gave the city’s financial creditors unexpected powers and trimmed his own, he realized asset sales weren’t enough. He concluded the city needed — deserved — state and federal investigations of the bond deals and their enablers.

Then he resigned, citing “political and ethical crosswinds.” Last week, he hired a lawyer, in case Commonwealth Court Judge Bonnie Leadbetter, who’s been overseeing the state’s handling of the city, gets curious about the storm that drove Unkovic out.

And how did our lawman governor react? Last week, his outside counsel filed a motion against not the people his receiver had fingered, but Schwartz, demanding that he personally pay the costs of fighting his allegedly belated appeal. Ironically, Schwartz hasn’t even been paid for his work — he says he’s owed more than $80,000.

The state is still “fact-finding” on what happened and what to do, Corbett spokesman Kelly Roberts tells me. But the governor wants to “move forward.” And Schwartz’s lawsuits are “not moving forward.”

Let’s hope Pennsylvania — and the SEC — don’t look so far forward they ignore who really picked the people’s pockets.

Contact columnist Joseph N. DiStefano at 215-854-5194, JoeD@phillynews.com, or @PhillyJoeD on Twitter.

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