S&P calls US lawsuit retaliation for stripping AAA rating

Michael Nagle | Bloomberg | Getty Images

Standard & Poor's on Tuesday blasted a $5 billion fraud lawsuit by the U.S. government as retaliation for its 2011 decision to strip the country of its AAA credit rating.

The McGraw Hill Financial unit was the only major credit rating agency to take away the United States' top rating and the only one sued by the Department of Justice for allegedly misleading banks and credit unions about the credibility of its ratings before the 2008 financial crisis.

In a filing with the U.S. District Court in Santa Ana, Calif., S&P said the lawsuit attempts to punish it for exercising its First Amendment free speech rights under the U.S. Constitution but also seeks "excessive fines" in violation of the Eighth Amendment.

It said the government's "impermissibly selective, punitive and meritless" lawsuit was brought "in retaliation for defendants' exercise of their free speech rights with respect to the creditworthiness of the United States of America."

(Read more: Moody's considers downgrading top US banks)

S&P seeks to dismiss the lawsuit with prejudice, meaning it cannot be brought again. The August 2011 downgrade of the U.S. credit rating to AA-plus from AAA reflected concern about Washington's ability to address the nation's swelling debt.

America's downgrade 2nd anniversary

A Justice Department spokesman declined immediate comment.

The Feb. 4 lawsuit accused S&P of inflating ratings to win more fees from issuers and failing to downgrade ratings for collateralized debt obligations, despite knowing they were backed by deteriorating residential mortgage-backed securities.

U.S. District Judge David Carter in July allowed the case to go forward.

In Tuesday's filing, S&P estimated that more than $4.6 billion of the alleged losses may have resulted from CDOs that were structured, marketed or sold by Bank of America or Citigroup. It also said more than $1 billion came from debt that was never issued in the first place.

(Read more: Bove: US is trying to break up JPMorgan)

S&P also said the government lacked authority to sue under the Financial Institutions Reform, Recovery and Enforcement Act of 1989, because no federally insured financial institutions were affected by violations.

The government has in recent months made more use of Firrea, which was passed after the 1980s savings and loan crisis, in part because of its lower burden of proof and longer statute of limitations than other laws.

S&P has said its own statements about the independence and objectivity of its ratings were "puffery" that could not be taken at face value or be the basis for a fraud lawsuit.

It is separately trying to dismiss similar lawsuits by 15 states now pending in the U.S. District Court in Manhattan. The states want these cases moved to state courts.

—By Reuters