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A couple years back, securities class action plaintiffs in the Lehman litigation advanced an intriguing theory. The credit rating agencies, they argued, weren’t mere evaluators of certain Lehman mortgage-backed securities, but were actually so involved in structuring the securities–and supplied ratings so crucial to the offering–that the rating agencies were, in effect, underwriters. It was a novel argument that seemed to offer securities class action plaintiffs a way to pierce the First Amendment armor protecting the rating agencies.

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