First Against the Wall

This is what I have been waiting for:

I poked around with some law firms in California, and started to pick up the rumor that California Public Employees’ Retirement System (CALPERS) was going to drop the bomb on S&P, Moody’s and Fitch. No one would say anything on the record, but it was clear that litigation was being considered as an option against the Ratings Agencies…

Now, here comes the fun part: Calpers doesn’t give a rat’s ass about the money. Sure, the financial instruments at hand (Cheyne Finance, Stanfield Victoria Funding and Sigma Finance) have defaulted on their payment obligations. The losses to Calpers are ~!$1 billion.

But that’s not what’s going on here: These Left Coasters want their pound of flesh. They don’t care for the Ratings Agency folks, and consider them a blight on the investment landscape.

The goal of the litigation (as I see it) isn’t to make the rating agencies pay a financial penalty; rather, it is to publicly try them just as the regulatory rules are being rewritten. I also predict that CALPERS is going to attempt to not just win, but humiliate these agencies, call them out in the most embarrassing way possible, trash the senior executives, and make things very uncomfortable in general for these firms.

If anyone can figure out any way we can contribute to the attorneys pushing this, please let me know. These ratings agencies were active and willing participants, and I’ve been waiting for this. Next against the wall should be the SEC regulators, who spent the last dozen years doing important things like investigating Martha Stewart.

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70 replies
  1. 1
    Zifnab says:

    MOAR OF THIS PLZ!

  2. 2
    Cris says:

    If I had my way, I’d have all of ya shot.

  3. 3
    CapMidnight says:

    I bet Martha Stewart knows the types of stains that can never be washed out of $30,000 executive-office rugs.

  4. 4
    JK says:

    OT

    U.S. Senator Sam Brownback today [Friday, July 10, 2009] with Senator Mary Landrieu (D-LA) introduced the Human-Animal Hybrid Prohibition Act of 2009.

    “This legislation works to ensure that our society recognizes the dignity and sacredness of human life,” said Brownback. “Creating human-animal hybrids, which permanently alter the genetic makeup of an organism, will challenge the very definition of what it means to be human and is a violation of human dignity and a grave injustice.”

    The Human-Animal Hybrid Prohibition Act would ban the creation of human-animal hybrids. Human-animal hybrids are defined as those part-human, part-animal creatures, which are created in laboratories, and blur the line between species.

    In Louisiana last month, Governor Jindal signed legislation into law that would prohibit the creation of human-animal hybrids.

    h/t http://senatorsambrownback.blo.....human.html

  5. 5
    lawnorder says:

    Sign me up too!

  6. 6
    Mnemosyne says:

    I also predict that CALPERS is going to attempt to not just win, but humiliate these agencies, call them out in the most embarrassing way possible, trash the senior executives, and make things very uncomfortable in general for these firms.

    And the problem is …. ?

  7. 7
    General Winfield Stuck says:

    These ratings agencies were active and willing participants

    commonly known as an inside job/

  8. 8
    maya says:

    After this purge of worthless financial dart throwers I’m hoping next they’ll go after those worthless movie raters on IMDb.

  9. 9
    Bertie Wooster says:

    Can we go Class Action? (Considering that all pension funds and 401(k) investors were effectively defrauded by these goofballs.) Time for some solidarity.

    Bertie’s summer daydream. . .

  10. 10
    CapMidnight says:

    The Human-Animal Hybrid Prohibition Act would ban the creation of human-animal hybrids.

    Would it still be legal to glue a ferret onto a U.S. Senator?
    (BTW, the ferret in question is okay with this.)

  11. 11
    Dennis-SGMM says:

    The discovery phase of this suit should produce some real goodies. Real attorneys can correct me if I’m wrong but I believe that discovery in civil suits is pretty wide open. I’m guessing that some of the emails that went back and forth between the ratings agencies and those being rated will set new standards for cynicism and greed.

  12. 12
    Maude says:

    Don’t forget Mr. Cox.

  13. 13
    slag says:

    The people I know who’ve been involved in taking startups public call these ratings agencies straight up scams. If they’re not directly “pay for play”, they’re part of a larger pay for play system.

    Also, the startup IPOs were marginally successful, so I know their negative impressions weren’t exactly the result of sour grapes.

  14. 14
    General Winfield Stuck says:

    @JK:

    U.S. Senator Sam Brownback today [Friday, July 10, 2009] with Senator Mary Landrieu (D-LA) introduced the Human-Animal Hybrid Prohibition Act of 2009.

    Brownback just finished reading Orwell’s Animal Farm and wants no part of that commie shit.

    And everybody knows about New Orleans/

  15. 15
    chopper says:

    @CapMidnight:

    Would it still be legal to glue a ferret onto a U.S. Senator?

    of course. this bill intends to ban interspecies stuff.

  16. 16
    Calouste says:

    @CapMidnight:

    Would it still be legal to glue a ferret onto a U.S. Senator?
    (BTW, the ferret in question is okay with this.)

    After you had done that, how would you tell which one is which?

  17. 17
    ruemara says:

    ooOOOooo. I think I like my union even more. And may their lawsuit leave burns and ‘rroids.

  18. 18
    jrg says:

    Cris, relax. Have a cigar.

    I poked around with some law firms in California, and started to pick up the rumor that California Public Employees’ Retirement System (CALPERS) was going to drop the bomb on S&P, Moody’s and Fitch.

    It’s about damn time. Can you imagine a “lowly” real estate appraiser getting away with shit like this? I hope CALPERS sues the nuts right out of their collective sack.

  19. 19
    Tom Levenson says:

    Oooh. Can I help? Where do I sign up. When these firms became marketing services for Goldman et al., they lost the right to live.

  20. 20
    Das Internetkommissariat says:

    The good news keep coming:

    Major Cook got fired from his civilian job! It seems that he worked for a DOD-contracter Simtech, Inc.

    The DOD informed Simtech that they do not wish to see Cook again.

    Bazoooom! Fired!

    GOS has a diary up:
    http://www.dailykos.com/storyo.....civvy-job)

  21. 21
    General Winfield Stuck says:

    @chopper:

    of course. this bill intends to ban interspecies stuff.

    You can’t forbade lonely shepherds from loving their sheep/

  22. 22
    Dennis-SGMM says:

    @chopper:

    of course. this bill intends to ban interspecies stuff.

    Somebody tell Republican Neal Horsely, stat!

    “Is it true?” Colmes asked.
    “Hey, Alan, if you want to accuse me of having sex when I was a fool, I did everything that crossed my mind that looked like I…”
    AC: “You had sex with animals?”
    NH: “Absolutely. I was a fool. When you grow up on a farm in Georgia, your first girlfriend is a mule.”
    AC: “I’m not so sure that that is so.”

    Horsely plans to run for governor of Georgia.

  23. 23
    steve s says:

    @CapMidnight:

    Would it still be legal to glue a ferret onto a U.S. Senator?

    Sure. The bill doesn’t ban ferret-weasel hybrids.

  24. 24
    Roger Moore says:

    @Dennis-SGMM:

    I’m guessing that some of the emails that went back and forth between the ratings agencies and those being rated will set new standards for cynicism and greed.

    I don’t know about those emails, but there was a famous IM exchange in which two S&P analysts talked about how badly they were doing, and one said, “We rate every deal. It could be structured by cows and we would rate it.” I’m sure that will come up in any trial.

  25. 25
    geg6 says:

    This is awesome news. Totally awesome. I hope they take down the whole bunch of them. Let me know if you find they are taking donations. I’ll give for such a good cause.

  26. 26
    BombIranForChrist says:

    @geg6:

    Absolutely agree. This is great news. It has been beyond bizarre, even within the context of our lazy ass regulatory system, that the agencies STILL haven’t had their day in the spotlight … not in the courts, not in the media, etc. It’s just plain bizarre.

    To any lawyers here, could the justice department go after them for fraud? I ain’t no expert, but it seems to me that there was some lyin’ afoot.

  27. 27
    Ash Can says:

    drop the bomb on S&P, Moody’s and Fitch

    It’s about goddamned time. The ratings agencies were so powerful in the financial business that even the smallest shift in one of their ratings was enough to tank a stock/bond or shoot it halfway to the moon. We can argue about the guilt and innocence of investment bankers and equities analysts till the cows come home, but the fact is the whole industry hung on every word from these firms, and to say that they were criminally derelict in their duties is to speak as kindly of them as possible while still being truthful.

  28. 28
    A Cat says:

    They will find all kinda of conflicts of interest in the emails as the employees of the rating agencies weren’t very circumspect in what they said. There were leaked emails a year or so ago from a congressional investigation I think.

    They emails were one rating agency employee to another basically saying they can’t believe what garbage they were rating AAA, but they were happy the deal got done because they got paid.

  29. 29
    feebog says:

    Now, here comes the fun part: Calpers doesn’t give a rat’s ass about the money. Sure, the financial instruments at hand (Cheyne Finance, Stanfield Victoria Funding and Sigma Finance) have defaulted on their payment obligations. The losses to Calpers are ~!$1 billion.

    My 88 year old father draws a pension from Calpers. It godamn better be about the money. And sure, humiliate the fuckers along the way, thats fine too. Also. You Betcha.

  30. 30
    gex says:

    @Roger Moore: Ooh! And there’s the one where the analysts discussed how none of the risk was being addressed. That’s kinda the whole point of rating the investments, no?

  31. 31
    The Moar You Know says:

    Horsely plans to run for governor of Georgia.

    @Dennis-SGMM: Here’s something a little more…disturbing…than fucking mules. From our buddy Neal Horsley:

    The secession movement strategy outlined below has the power to force the people of the United States of America to choose between three options: (1) return to God’s plan for government; (2) allow a State or States to secede from the presently united States of America; or (3) enter a period of nuclear civil war. Only two prerequisites are required to realize the scenario just mentioned, (1) nuclear weapons must be available to a seceding State Government or Governments, (2) a seceded State Government must have the will to use them. With the exception of Secession itself, both conditions are presently in place. Condition One: Availability. Nuclear weapons are siloed, armoried, or secreted in virtually every State in these presently United States of America. One of the first acts a seceding State militia must accomplish will be the seizing of those nuclear weapons. Once in hand, that seceding State will have the power to force the rest of the citizens of the USA to choose between accepting secession as a fait accompli–a done deal–or launching nuclear civil war in the heretofore United States of America. Condition Two: Will. I represent a Political Party (The Creator’s Rights Party) that would not hesitate to use nuclear weapons in defense of a State’s Right to secede in order to restore God’s plan for government. I know this will come as an absolutely mind boggling idea to many citizens of the United States of America, but there are people here–lots of them–who are willing to live and die in defense of the Rights of the Creator. If you don’t believe it now, unless the desecration of God’s authority is arrested in the USA, you’ll have the opportunity to see these people demonstrate their willingness to see God’s authority restored or die trying.

    You read it right. He wants forcible secession by nuclear war.

  32. 32
    Blue Raven says:

    I have long had respect for CalPERS. They show time and again that they want to protect their funds and do right by the people drawing pensions from them. This is more personal than it was before, as my father-in-law is such a pensioner. CalPERS takes no shit and never dishes it out. Those firms are doomed. Pass the popcorn.

  33. 33

    I look forward watching all the knee-jerk jerk offs backing away from their defense of this crap when the trial begins.

    @JK: Those idiots just can’t leave that man-on-dog stuff alone.

  34. 34
    PaulW says:

    After this purge of worthless financial dart throwers I’m hoping next they’ll go after those worthless movie raters on IMDb.

    NOOOOOOOOO. Their insights into the complexities of Manos: Hands of Fate are helping us endure these dark times…

  35. 35
    NonyNony says:

    @feebog:

    My 88 year old father draws a pension from Calpers. It godamn better be about the money. And sure, humiliate the fuckers along the way, thats fine too. Also. You Betcha.

    I actually took that quote to mean “CalPERS won’t be able to get all of the money they’re asking for back and they know it, but they CAN utterly destroy these ratings agencies for good, and that’s worth the effort.”

    (And by “won’t be able to get all of the money they’re asking for back” I mean “ratings agencies don’t have enough money to pay them the damages and so will go tits up instead of paying the damages”, but I’m sure the folks at CalPERS feel that it’s worth it to get whatever money they can out of these guys while utterly destroying them.)

  36. 36
    Brachiator says:

    I poked around with some law firms in California, and started to pick up the rumor that California Public Employees’ Retirement System (CALPERS) was going to drop the bomb on S&P, Moody’s and Fitch. No one would say anything on the record, but it was clear that litigation was being considered as an option against the Ratings Agencies…

    Wow. CALPERS is really desperate. My SWAG (sophisticated wild ass guess) is that this lawsuit, if it really goes down, is not really directed at the ratings agencies at all, but is another attempt by CALPERS to maintain a pension system that may not be sustainable.

    One proposal that has come up in the current California budget negotiations (current deficit $26 billlion) would develop a new, less costly pension plan for state employees. Even though these plans have been put on hold for now, the proposal will come back as part of a future budget package.

    By the way, note here that I am not dealing with the merits of either the CALPERS suit or the current pension system (Two-tier California pension proposal on hold).

    California will not impose a two-tier pension system promising lower benefits to future state workers as part of any wide-ranging deal to solve its $26.3 billion budget shortfall, The Bee has learned…. The economic slowdown has hit the pension system hard, sending investment income plummeting and sparking pressure to alter defined benefits that are more lucrative than typically offered within private industry.

    There are not many news stories about it here yet, but a similar problem is already unfolding in the UK (£200bn crisis hits company pensions: Soaring deficit puts 88% of schemes in the red).

    The scale of the pensions crisis was laid bare yesterday as figures showed the deficit in company schemes had soared above £200billion. A staggering 88 per cent of the country’s 7,400 defined-benefit pension schemes face a shortfall amid pressure from falling stocks and people living longer. In June 2007, pension funds were registering a surplus of more than £100billion. A year later this had turned into a deficit of £13billion. But yesterday’s figures from industry safety net the Pension Protection Fund showed the shortfall between assets and liabilities in the 7,400 plans rocketed to £200.1billion at the end of June.

    Maybe the CALPERS people can turn to Goldman Sachs for investment advice.

  37. 37
    freelancer says:

    @The Moar You Know:

    That is front-page wingnuttery. Do you have a link?

  38. 38
    Dennis-SGMM says:

    @The Moar You Know:
    Wow! He really is a nutcase. “God’s plan for government”? Of course the plan involves having people like him in charge of a nice little permanently-elected theocracy.

    I represent a Political Party (The Creator’s Rights Party) that would not hesitate to use nuclear weapons in defense of a State’s Right to secede in order to restore God’s plan for government.

    I’m all for freedom of speech but isn’t this damned close to treason? He is, at the least, threatening to levy war on the United States.

  39. 39
    linda says:

    awefuckingsome. it’s about time someone, somewhere is held accountable for something; as i’m sitting here listening to sheldon whitehead bemoan that there’s no way to hold cheney accountable for the crimes he’s committed.

    i will not contribute one more cent to any politician; but i am more than happy to contribute to efforts such as this.

  40. 40
    KG says:

    I only want to know one thing: what law firms are taking this case?

  41. 41
    mai naem says:

    About f$#$ing time. I was listening to the This American Life piece on the subprime and CDO meltdown and I was wondering why nobody was going after the ratings agencies. I mean I bet Angie’s List would on the hook for something if some contractor went in and destroyed the plumbing system of some house. What’s different about the ratings agencies? And where’s TIAA-CREF in this? They’re usually involved in stuff like this.

  42. 42
    linda says:

    #28 — here’s the exchange:

    *An instant message between two Standard & Poors employees – Shannon Mooney and Ralul Dilip Shah in the structured finance division at S&P is revealing:

    Shah: btw — that deal is ridiculous

    Mooney: I know right…model def does not capture half of the risk

    Shah: We should not be rating it

    Mooney: We rate every deal. It could be structured by cows and we would rate it.

  43. 43
    p.a. says:

    It’s time to move forward into an optimistic future, not get caught up in partisan rancor about the past; ‘let’s not argue and bicker about who killed who…’

  44. 44
    Dennis-SGMM says:

    @KG:

    I only want to know one thing: what law firms are taking this case?

    I’d like to know why the DOJ, SEC, etc. stood around with their thumbs up their asses leaving it to CalPERS to take action against the ratings agencies.

  45. 45
    Comrade Kevin says:

    @JK: The Island of Doctor Moreau Act?

  46. 46
    The Moar You Know says:

    @freelancer:

    Creator’s Rights Party article page

    Refers to “nuclear secession” but the actual portion of his “strategy” page with the quoted section has been scrubbed, as has archive.org.

    Something Awful has an old article on it, as does my own website (which I won’t link to here, preferring anonymity). The ADL and SPLC have references to it as well.

  47. 47
    Poopyman says:

    Would it still be legal to glue a ferret onto a U.S. Senator?

    (BTW, the ferret in question is okay with this.)

    After you had done that, how would you tell which one is which?

    A Senator walks into a bar with a ferret on his head.

    Bartender says “How did THAT happen?”

    Ferret says “Well, it started out as a wart on my ass.”

  48. 48
    Poopyman says:

    I’d like to know why the DOJ, SEC, etc. stood around are still standing around with their thumbs up their asses leaving it to CalPERS to take action against the ratings agencies.

    Fixed

  49. 49
    Dennis-SGMM says:

    @Poopyman:
    Yours is better. Maybe they’re afraid of stifling the creation of new and innovative financial products. Riiiiiight.

  50. 50
    SGEW says:

    Hmm.

    The Human-Animal Hybrid Prohibition Act would ban the creation of human-animal hybrids.

    Horsely: “When you grow up on a farm in Georgia, your first girlfriend is a mule.”

    Mooney: We rate every deal. It could be structured by cows and we would rate it.

    Eerie.

  51. 51
    KG says:

    @44: well, my guess would be, during the Bush Administration “fraud” was considered a perfectly acceptable business practice. In the Obama Administration, my guess would be that they don’t have enough lawyers to handle all the litigation/prosecution necessary to clean up.

    Another, plausibly more realistic answer would be that the feds stayed out because they figured a State AG would pick it up. In this context, I’m actually surprised that Jerry Brown hasn’t picked it up like he did with Countrywide a while back.

  52. 52
    lotus says:

    @Dennis-SGMM: #22

    Aha, you a Horsley fan too, Den? Piece a work, inny? I’m almost as impressed with his watermelon-lust as his mule-wooing.

  53. 53
    freelancer says:

    @Moar:

    Wow, that’s like some Jericho shit with some Republic of Gilead thrown in to spike the crazy.

  54. 54
    WereBear says:

    @ lotus: #52

    Horsley has watermelon lust?

    Thanks for putting that in my head.

    One thing about that Human/Animal hybrid bill is how nutty the Freeper types are about how youneeek and speshul we humans are.

    When we share 75% of our genes with bananas.

    Well… I know they do!

    Pah dum swish!

  55. 55
    Dennis-SGMM says:

    @lotus:
    Oh yeah. I forget where I first read about his mule lust but he’s been one to watch ever since. For me he is the gold standard by which all winguts are judged. The idea that he has followers just gives me the shakes.

  56. 56
    Clio says:

    @PaulW:

    Best episode of MST3K ever.

  57. 57
    Anonymous says:

    Hi, I have no insider information, but I’ve worked with Calpers and I know others who have as well.

    First, lower your expectations. They might be very aggressive with this lawsuit, but that doesn’t mean that the laundry will be aired in public.

    Second, the statement “Calpers doesn’t give a rat’s ass about the money” doesn’t ring true for me. I’ve known them to insist on detailed explanations about $10mm losses, which really is not much in the pension world.

    The point of my objection is that Calpers will probably stop once they reach a settled deal. Let us hope that they will fight the good fight, because they are indeed a giant in the arena.

  58. 58

    I’d like to know why the DOJ, SEC, etc. stood around with their thumbs up their asses leaving it to CalPERS to take action against the ratings agencies.

    What do you want them to do? Please explain to me what laws the ratings agencies broke. Before you say, “Fraud,” please read the disclaimers that the ratings agencies slap on everything they write. There’s no criminal fraud there, because they aren’t representing anything. Honestly, that’s what the disclaimers say. If you rely on them, that’s your problem.

    Frankly, I expect CALPERS to have a hard time winning even a civil suit against them. They’re going to have to come up with something more than that the agencies were publishing stuff they didn’t believe. Among other things, I don’t think that a judge will find that the ratings agencies had a fiduciary duty to CALPERS, which makes it harder to sue them, given the lack of a contractual relationship between the parties. It’s possible, but that’s why I think the disclaimers are going to be a big sticking point.

    My guess is that what they are really trying to do is to go after the people that sold the securities to them, with whom they did have a contractual relationship, and to use the communications with the ratings agencies as evidence of fraud or some other tort. Here I think they have a much better case, if they can track down enough paperwork. I’m still a bit skeptical, because my personal view is that there was a lot of assumption of risk here. The people who run CALPERS are professionals. They should know perfectly well that you can’t get the kinds of returns promised for these instruments without the assumption of risk.

    There’s a very real element of, “Please hold someone liable because we were so stupid we believed in fairy tales,” in any suit claiming fraud on any of the securities sold during the bubble. I can understand your average citizen not realizing the problems inherent in the sales pitches for high yielding bonds with no risk, but I have less sympathy for anyone at CALPERS that actually believed it. As a part of filing this lawsuit, they should have to sign a court order preventing them from ever working in the financial industry again.

    As for TIAA/CREF, the reason you won’t find them involved in any lawsuit like this is because they were never so stupid as to believe the fairy tales. If they are the ones running your retirement funds, be thankful, because you should be in fairly good shape. CALPERS fell behind, and tried to goose their returns. When you do that, you run risks.

  59. 59
    burnspbesq says:

    @JMM:

    You don’t think Calpers can plausibly claim to be an intended third-party beneficiary of the agreements between the issuer and the rating agencies? That seems to me to be a no-brainer. Sometimes the law is consistent with what is intuitively obvious.

  60. 60
    burnspbesq says:

    We may disagree about Goldman, but where the rating agencies are concerned, I will happily carry a torch AND a pitchfork.

  61. 61
    burnspbesq says:

    People who think CDS stands for Cheney Derangement Syndrome can readily appreciate the inherent conflict of interest in having issuers pay the rating agencies. If this ever gets to a jury, the rating agencies better have Weil Gotshal on retainer, because their next stop will be the Bankruptcy Court (and for the record, I have no idea whether a damage award in a case like this would be dischargeable in BK).

  62. 62

    @burnspbesq: No, I don’t think that they can claim to be an intended third party beneficiary. The rights of a third party beneficiary are contractual, as a part of the agreement between the parties. The fact that someone would use the information produced by that contract does not make them a beneficiary of the contract. Unless the contract between the ratings agency and the issuer states that CALPERS is receiving a benefit, there is no such relationship.

  63. 63
    Anne Laurie says:

    Would it still be legal to glue a ferret onto a U.S. Senator?
    (BTW, the ferret in question is okay with this.)

    Where else is Lindsay Graham gonna get his toupees?

  64. 64
    Ash Can says:

    @Anonymous: Thanks for the info and the heads-up.

  65. 65
    DougL (frmrly: Conservatively Liberal) says:

    Would it still be legal to glue a ferret wolverine onto a U.S. Senator?

    Fix’t.

    Don’t know but I would be willing to pay to watch.

    I hope CALPERS makes the ratings agencies squeal like the pigs they are. It’s about time someone went after the enablers in this scam.

  66. 66
    Mike G says:

    Go CalPERS. I hope their brothers at the UC retirement fund jump in as well.

    Next against the wall should be the SEC regulators, who spent the last dozen years doing important things like investigating Martha Stewart.

    A small fry who donated to the Dems. I always suspected the dirty claw of KKKarl Rove behind that one.

  67. 67

    I have a very sharp stick they can borrow.

  68. 68
    burnspbesq says:

    @JMN Is Now asiangrrlMN’s Official Stalker:

    Now, hold up a sec. Why on earth would an issuer pay all that $ to a rating agency (times three, BTW) unless it intends that prospective investors will rely on the rating?

    Besides, this is California, where judges stopped caring about privity of contract long before any of us were born.

    This complaint will absolutely survive a motion to dismiss. I’d bet a car payment on that.

  69. 69
    Mnemosyne says:

    @JMN Is Now asiangrrlMN’s Official Stalker:

    Before you say, “Fraud,” please read the disclaimers that the ratings agencies slap on everything they write. There’s no criminal fraud there, because they aren’t representing anything. Honestly, that’s what the disclaimers say. If you rely on them, that’s your problem.

    I heard a brief thing about this on “Marketplace” tonight and apparently for years the agencies have been claiming that it’s their First Amendment right to say anything they want about an investment and they have no obligation whatsoever to make sure that what they say is true.

  70. 70
    Comrade Darkness says:

    This makes me happy. Like dumping some great whites in the chum tank with the hammerheads… we all win.

Comments are closed.