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Central District of California Subjects CFPB Telemarketing Sales Rule Claims to Rule 9(b)’s Heightened Pleading Standards

Posted in CFPB General

In a recent case, the Central District of California held that the CFPB’s claims against a credit repair service under the Telemarketing Sales Rule (“TSR”) must meet Federal Rule of Civil Procedure 9(b)’s heightened pleading requirement. CFPB v. Prime Marketing Holdings, LLC, CV 16-07111-BRO, Dkt. No. 32 (C.D. Cal. Nov. 15, 2016). Applicable to cases sounding in fraud, Rule 9(b) requires a plaintiff to “state with particularity the circumstances constituting fraud.” A plaintiff satisfies this requirement by pleading “the time, place, and specific content of the false representations.” Prime Marketing Holdings, Dkt. No. 32 at 7.

The CFPB alleged that the defendant violated the TSR (and, therefore, Dodd-Frank) by: 1) requesting payment of a fee to remove derogatory credit information before demonstrating the promised results; 2) claiming, without a reasonable basis, that defendant raised consumers’ credit scores by an average of 100 points; 3) failing to disclose truthfully in a clear and conspicuous manner all material terms and conditions regarding a refund or cancellation of services; and 4) misrepresenting the total cost of services. The court held that the second, third, and fourth claims were subject to Rule 9(b), and dismissed them without prejudice.

In holding that Rule 9(b) applied to the CFPB’s claims, the Court noted the similarities between the elements of fraud and the elements of a TSR claim. The elements of a TSR claim are a material misrepresentation likely to mislead consumers. Fraud has two additional elements – intent and damages – but the elements are otherwise substantially similar. And as the court stated, there was “no indication from [the CFPB’s] Complaint that any of the[] misrepresentations were accidental or the result of a mistake.” Prime Marketing Holdings, Dkt. No. 32 at 10. Instead, the CFPB alleged “that [d]efendant participated in a unified course of fraudulent conduct, multiple portions of which violated the TSR.” Id.

The court dismissed all of the CFPB’s claims except the first – which was not subject to Rule 9(b) – because the CFPB did not plead with the requisite particularity. The CFPB made general assertions of misrepresentation rather than pointing to specific representations that were either false or misleading.

The opinion is an example of a court taking seriously its role as a gatekeeper when a party brings fraud claims based on vague or generic allegations. But it could also have the adverse consequence of encouraging the CFPB to conduct a more detailed investigation before bringing a claim. The more detailed investigation will often come at significant expense to the entity being investigating and could lead to the discovery of wrongdoing that the CFPB otherwise would not have discovered. More detailed factual allegations – including specific misrepresentations – may also serve as a roadmap for plaintiff’s lawyers to bring private litigation covering the same conduct.

CFPB submits proposal to expand consumer complaint feedback for OMB approval

Posted in CFPB General

The CFPB has taken another step towards implementing its proposal to add a survey to its current complaint intake form that a consumer could choose to complete to provide feedback on the company’s response to his or her complaint.

The proposal would allow a consumer to opt-in and provide this feedback publicly, much the way he or she can with the complaint narrative.  The proposed survey would replace the existing “dispute” function that currently allows a consumer to indicate dissatisfaction with a company’s response.  Instead, a consumer would have the option to score the company’s response from 1 to 5 and provide a narrative description of the rationale for the number he or she selected.

The proposal, which was published in the Federal Register in August 2016, drew objections from industry, including the Consumer Bankers Association and the American Bankers Association, who submitted a comment letter setting forth their opposition.  In their comment letter, the two trade groups asserted that consumers will not benefit from a highly subjective rating system.  They described the proposed survey as subjective in several ways, including that no criteria had been established to guide a consumer in making a selection under the proposed survey’s one-to-five scale.  The trade groups asserted that without a description of the circumstances under which a particular value should be given, the ratings will reflect the idiosyncrasies of customers, not an accurate reflection of the company’s response to complaints it received.  Therefore, the aggregate results of these ratings will provide little, if any, benefit to consumers.

On November 29, 2016, the CFPB published a new notice in the Federal Register that seeks comment on the proposal’s submission to the Office of Management and Budget.  The CFPB’s Supporting Statement submitted to OMB includes the CFPB’s responses to comments it received on the proposal.  With regard to comments regarding the subjective nature of the rating system, the CFPB stated that it “believes a 5-star rating system is a commonly accepted and easily understood method for gathering consumer feedback.”  Further comments must be submitted by December 29, 2016.

 

 

Members of Congress, consumer advocates file amicus briefs supporting CFPB’s petition for rehearing en banc in PHH case

Posted in CFPB Enforcement, Mortgages

A group of 21 current and former members of Congress and a group of 10 consumer advocacy organizations have filed amicus briefs in support of the CFPB’s petition filed with the D.C. Circuit seeking a rehearing of its decision in CFPB v PHH Corporation.

Under D.C. Circuit Rules, “[n]o amicus curiae brief in response to or in support of a petition for rehearing en banc will be received by the clerk except by invitation of the court.”  Nevertheless, the two groups filed their briefs together with motions requesting an invitation from the court.

In its response to those motions, PHH “take[s] no position on the question whether the Court should invite amicus briefs on the rehearing petition and thus on the merits of the motions.”   However, PHH states that “the submission of the briefs together with the motions appears to conflict with the plain language of [the Circuit Rule].”  PHH asserts that allowing potential amici to submit briefs prior to an invitation “undermines the purpose of the Rule” and asks the court to clarify if its Rule “permits the submission of amicus briefs at the rehearing stage in this manner.”

PHH also comments that the court “need not invite or accept for filing briefs that are redundant of the CFPB’s petition or of the amicus brief that the Court has invited from the Solicitor General.”  In an order filed on November 23, 2016, the D.C. Circuit directed PHH to file a response to the CFPB’s petition and invited the Solicitor General to file a response.

Both amicus briefs contend that the D.C. Circuit’s decision threatens the CFPB’s ability to fulfill its consumer protection role and was wrongly decided because it is at odds with U.S. Supreme Court precedent.

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CFPB Fall 2016 rulemaking agenda published

Posted in Arbitration, CFPB Supervision, Mortgages, Overdrafts, Payday Lending

The CFPB’s Fall 2016 rulemaking agenda has been published as part of the Fall 2016 Unified Agenda of Federal Regulatory and Deregulatory Actions.  The preamble indicates that the information in the agenda is current as of October 19, 2016.  Accordingly, given the results of the Presidential election, including its potential impact on the CFPB’s leadership, there is likely to be a post-election reevaluation by the CFPB of its agenda.  The agenda sets the following timetables for key rulemaking initiatives:

Arbitration.  The CFPB released its proposed arbitration rule in May 2016 and the comment period ended on August 22, 2016.  The Fall 2016 agenda indicates that the CFPB “is reviewing and considering comments on the proposed rule” as it “considers development of a final rule for early 2017.”  The agenda gives a February 2017 estimated date for a final rule.  In recent days, we have heard speculation that the CFPB will issue a final rule before Donald Trump’s inauguration as President on January 20.  As we discussed in a recent blog post, a final arbitration rule or other new final rules issued by the CFPB (and potentially any final rules issued since late May 2016) could be nullified by Congress under the Congressional Review Act (CRA).  The CRA establishes a special set of procedures that allow Congress to pass a joint resolution disapproving a rule which cannot be filibustered in the Senate and can be passed by only a simple majority vote.

Payday, title, and deposit advance loans.  The CFPB released its proposed rule on payday, title, and high-cost installment loans in June 2016 and the comment period ended on October 22, 2016.  While there has also been speculation that the CFPB will attempt to finalize a rule by January 20, that possibility seems more remote given the unprecedented level of comments (approximately one million) received by the CFPB and the complexity of the proposed rule.  The Fall 2016 agenda does not give an estimated date for a final rule.

Debt collection.  In November 2013, the CFPB issued an Advance Notice of Proposed Rulemaking concerning debt collection.  In July 2016, it issued an outline of the proposals it is considering in anticipation of convening a SBREFA panel.  It has been reported that the SBREFA panel for the CFPB’s debt collection rulemaking met with small entity representatives (SER) at the end of August 2016.  Within 60 days from the date it is considered to have “convened,” the panel must submit a report to the CFPB on the input received from the SERs.  However, the report will not become public until the CFPB issues its proposed rule.

The CFPB’s proposals only cover “debt collectors” that are subject to the FDCPA.  They are not intended to apply to a first-party creditor collecting its own debts or to a servicer when collecting debts that were current when servicing began to the extent the creditor or servicer would not be a “debt collector” under the FDCPA.  When it issued the proposals, the CFPB stated that it “expects to convene a second proceeding in the next several months” for creditors and others engaged in debt collection not covered by the proposals, noting that it believes a separate SBREFA process “is the most efficient way to proceed, particularly because it will allow participants to provide more focused and specific insights.”

In the Fall 2016 agenda, the CFPB states that it “expects to convene a separate SBREFA proceeding focusing on companies that collect their own debts in 2017.”  The agenda gives a February 2017 estimated date for further prerule activities.

Overdrafts.  The CFPB issued a June 2013 white paper and a July 2014 report on checking account overdraft services.  In the Fall 2016 agenda, as it did in its Fall 2015 and Spring 2016 agendas, the CFPB states that it “is continuing to engage in additional research and has begun consumer testing initiatives related to the opt-in process.”  Although the Spring 2016 agenda estimated an August 2016 date for further prerule activities, the new agenda moves that date to January 2017.  As we have previously noted, the extended timeline may reflect that the CFPB feels less urgency to promulgate a rule prohibiting the use of a high-to-low dollar amount order to process electronic debits because most of the banks subject to its supervisory jurisdiction have already changed their processing order.

Larger participants.  As it did in its Fall 2015 and Spring 2015 agendas, the CFPB states in the Fall 2016 agenda that it is considering “larger participant” rules “in markets for consumer installment loans and vehicle title loans for purposes of supervision.”  It also repeats its previous statement that the CFPB is “also considering whether rules to require registration of these or other non-depository lenders would facilitate supervision, as has been suggested to the Bureau by both consumer advocates and industry groups.”  (Pursuant to Dodd-Frank Section 1022, the CFPB is authorized to “prescribe rules regarding registration requirements applicable to a covered person, other than an insured depository institution, insured credit union, or related person.”)  While the Spring 2016 agenda estimated a December 2016 date for prerule activities, the new agenda estimates a May 2017 date.

Small business lending data.  Dodd-Frank Section 1071 amended the ECOA to require financial institutions to collect and maintain certain data in connection with credit applications made by women- or minority-owned businesses and small businesses.  Such data include the race, sex, and ethnicity of the principal owners of the business.  While the Spring 2016 agenda estimated a December 2016 date for prerule activities, the new agenda estimates a March 2017 date.  The CFPB states in the Fall 2016 agenda that it “is focusing on outreach and research to develop its understanding of the players, products, and practices in business lending markets and of the potential ways to implement section 1071.  The CFPB then expects to begin developing proposed regulations concerning the data to be collected and determining the appropriate procedures and privacy protections needed for information-gathering and public disclosure under this section.”

Mortgage rules.  In July 2016, the CFPB issued a proposed rule containing both substantive amendments and technical corrections to the final TILA-RESPA Integrated Disclosure rule.  The comment period on the proposal ended on October 18, 2016 and the Fall 2016 agenda gives a March 2017 estimated date for issuance of a final rule.  The Fall 2016 agenda gives a March 2017 estimated date for a proposed rule “to amend certain provisions of Regulation C to make technical corrections and to clarify certain requirements under Regulation C” and a proposed rule “to amend Regulation B to reconcile how creditors may collect information about the ethnicity and race of applicants to clarify how financial institutions and creditors subject to Regulation C and Regulation B may comply with both regulations.”

Student Loan Servicing and Consumer Reporting.  As they were in the Fall 2015 and Spring 2016 agendas, both of these topics continue to be listed in the Fall 2016 agenda as “long-term action” items with no estimated dates for further action.  The Office of Management and Budget defines “long-term action” items as “items under development but for which an agency does not expect to have a regulatory action within 12 months after publication of this edition of the Unified Agenda.”

 

 

How does the PHH case impact presidential authority to remove Director Cordray?

Posted in CFPB General

A blog post entitled “The President’s Removal Power and the PHH Litigation” by Aditya Bamzai, an Associate Professor of Law at the University of Virginia School of Law, challenges the assumption of many observers that the new President would have to let the PHH litigation run its course before acting to remove Director Cordray.

As we reported, the CFPB has filed a petition with the D.C. Circuit asking it to grant a rehearing en banc of its PHH decision.  In PHH, the D.C. Circuit ruled that that the CFPB’s single-director-removable-only-for-cause structure is unconstitutional.  To remedy the constitutional defect, the court severed the removal-only-for-cause provision from the Dodd-Frank Act so that the President “now has the power to supervise and direct the Director of the CFPB, and may remove the Director at will at any time.”  The decision has not become effective because the D.C. Circuit issued an order directing the Clerk of the Court of Appeals to “withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc.”

In his blog post, Professor Bamzai asserts that the new President could remove Director Cordray before the appeal is resolved and any judgment becomes effective if the Executive Branch determines that the statutory “for cause” restriction on removal is unconstitutional.  He also asserts that Director Cordray could not insist that he be allowed to remain in office following a presidential order to vacate it.

We found Professor Bamzai’s blog post to be quite thoughtful but have not conducted independent research to assess the strength of his arguments.

 

CFPB November 2016 complaint report highlights other financial services complaints, complaints from Oklahoma consumers

Posted in CFPB General

The CFPB has issued its November 2016 complaint report which highlights complaints about “other financial services,” a category that includes debt settlement, credit repair, check cashing, and money orders.  The report also highlights complaints from consumers in Oklahoma and the Oklahoma City metro area.

General findings include the following:

  • As of November 1, 2016, the CFPB handled approximately 1,035,200 complaints nationally, including approximately 27,000 complaints in October 2016.
  • Debt collection continued to be the most-complained-about financial product or service in October 2016, representing about 29 percent of complaints submitted.  Debt collection complaints, together with complaints about credit reporting and mortgages, collectively represented about 65 percent of the complaints submitted in October 2016.
  • Complaints about student loans showed the greatest percentage increase based on a three-month average, increasing about 108 percent from the same time last year (August to October 2015 compared with August to October 2016).  In February 2016, the CFPB began accepting complaints about federal student loans.  Previously, such complaints were directed to the Department of Education.  As we have noted in blog posts about prior complaint reports issued beginning in April 2016, rather than reflecting an increase in the number of borrowers making student loan complaints, the increase most likely reflects the change in where such complaints are sent.
  • Prepaid card complaints showed the greatest percentage decrease based on a three-month average, decreasing about 51 percent from the same time last year (August to October 2015 compared with August to October 2016).  Complaints during those periods decreased from 417 complaints in 2015 to 205 complaints in 2016.
  • Alaska, New Mexico, and Missouri experienced the greatest complaint volume increases from the same time last year (August to October 2015 compared with August to October 2016) with increases of, respectively, 53, 33, and 31 percent.
  • Maine, Rhode Island, and Idaho experienced the greatest complaint volume decreases from the same time last year (August to October 2015 compared with August to October 2016) with decreases of, respectively, 19, 18, and 15 percent.

Findings regarding other financial services complaints include the following:

  • The CFPB has handled approximately 4,500 other financial services complaints.
  • The most common type of other financial services complaint involves debt settlement, representing 50% of all such complaints.
  • A majority of complaints (51%) involved fraud or scam by debt settlement or credit repair companies as the primary issue.
  • Complaints about money orders involved problems encountered by consumers when attempting to redeem money orders and delays in the error resolution process.

Findings regarding complaints from Oklahoma consumers include the following:

  • As of November 1, 2016, approximately 7,700 complaints were submitted by Oklahoma consumers of which approximately 40 percent (about 3,100) were from Oklahoma City consumers.
  • Debt collection was the most-complained-about product, representing 36 percent of all complaints submitted by Oklahoma consumers and, on a national basis, 27 percent of all complaints submitted by consumers.
  • Average monthly complaints received from Oklahoma consumers increased 17 percent from the same time last year (August to October 2015 to August to October 2016), higher than the increase of 13 percent nationally.

 

 

We made the ABA Blawg 100 list … for the fifth year in a row!

Posted in CFPB General

HonoreeBadge (3)For the fifth year in a row, CFPB Monitor has been selected by the editors of the ABA Journal for its Blawg 100 list, the Journal’s annual list of the best blogs for a legal audience.  The ABA Journal is the flagship magazine of the American Bar Association.  CFPB Monitor continues to be the only blog focused on the CFPB and one of only two blogs focused on consumer financial services on the Blawg 100 list.

We are honored to have once again received this recognition.  As we watch how the effects of the Presidential election unfold in 2017, we will continue to bring our readers timely and insightful perspectives on the CFPB and its activity.

 

GAO report highlights gap in SCRA oversight for private student loans; encourages CFPB to seek additional statutory authority

Posted in Military Issues

On November 18, the GAO released a report examining issues related to implementation of the Servicemembers Civil Relief Act (SCRA) interest rate cap for student loans. The Senate Committee on Homeland Security and Governmental Affairs requested the report in response to indications that servicemembers with student loans who are eligible for an SCRA rate reduction may not always be receiving the benefit. (The SCRA requires creditors and servicers to reduce the interest rate to 6 percent during active-duty service on any pre-service obligation or liability, including student loans.) The GAO report concluded that servicemembers with private student loans may be particularly at risk of not receiving a rate reduction because nonbank private student loan lenders and servicers are subject to neither the same rules nor oversight as those of federal student loans and commercial FFEL student loans (FFEL loans made by private and state lenders that are not owned by the Department of Education). For example, unlike for federal and FFEL loans, servicers of private student loans are not required to identify eligible borrowers and automatically apply the rate cap. Additionally, no agency is currently authorized to routinely oversee SCRA compliance for private student loans made or serviced by nonbank lenders and servicers, such as private companies and institutions of higher education.

In its report, the GAO made a number of recommendations to ensure consistent treatment of eligible servicemembers across all types of student loans. In particular, the GAO recommended that the CFPB coordinate with the DOJ “to determine the best way to ensure routine oversight of SCRA compliance for all nonbank private student loan lenders and servicers,” including developing a legislative proposal to seek additional statutory authority to facilitate such oversight, if necessary.

In its written comments to the report, the CFPB acknowledged that it “shares the GAO’s interest in maximizing the effectiveness of [the] SCRA’s protections” and highlighted the tools currently at its disposal to facilitate SCRA enforcement, such as its collection of SCRA-related consumer complaints and ability to refer potential SCRA violations to the DOJ. Nevertheless, the GAO maintained that the existing tools are insufficient and additional interagency coordination is necessary to close the gap in SCRA oversight.

CFPB issues bulletin on incentive programs; Ballard Spahr to conduct Dec. 14 webinar

Posted in CFPB Enforcement, CFPB Exams

The CFPB has issued a new compliance bulletin (2016-03) on incentive programs.  The issuance of the bulletin reflects the CFPB’s increased focus on such programs.

To assist clients in preparing for greater regulatory scrutiny, Ballard Spahr attorneys will conduct a webinar on December 14, 2016, from 12 p.m. to 1 p.m. ET: “Controlling Employee Conduct: Designing Compensation Incentives and Monitoring Systems to Promote Compliance and Prevent Misconduct.”  More information about the webinar and a link to register is available here.

In the bulletin, the CFPB acknowledges that incentives for employees and service providers to meet sales and other business goals are common and can benefit companies and consumers.  However, drawing on “guidance the CFPB has already given in other contexts” and “examples from the CFPB’s supervisory and enforcement experience in which incentives contributed to substantial consumer harm,” the bulletin highlights the consumer risks that incentive programs can create.  The bulletin provides examples of problems that can arise from sales goals, sales benchmarks, compensation tied to the terms and conditions of transactions, paying more compensation for some types of transactions than for others that were or could have been offered to meet consumer needs, and unrealistic quotas to sign up consumers for financial services.

The CFPB discusses the enhanced risks created by incentive programs in CFPB enforcement matters, such as cases involving credit card add-on products and overdraft opt-in practices.  In the section of the bulletin entitled “The CFPB’s Expectations,” the CFPB details steps a supervised entity should take to ensure that its compliance management system is effective in preventing incentive programs from leading to legal violations.  Such steps involve board of directors and management oversight, policies and procedures, training, monitoring, corrective action, consumer complaint management, and independent compliance audits.

 

Will the CFPB issue a final arbitration rule before Jan. 20?

Posted in Arbitration, CFPB Rulemaking

Last week, the Wall Street Journal reported that the CFPB is pushing to finalize its arbitration rule before Donald Trump’s inauguration as President on January 20.  The comment period on the proposed rule closed on August 22, 2016.

The article suggested that the CFPB may also attempt to finalize its rule on payday, title, and high-cost installment loans by January 20.  However, the possibility of the CFPB accomplishing that seems more remote given that the comment period on the CFPB’s proposal closed on October 7, 2016 and the CFPB received an unprecedented level of comments, numbering approximately one million.

If the CFPB were to issue a final arbitration rule or any other new final rule by January 20, it could find its efforts thwarted by Congress.  A relatively obscure law entitled the “Congressional Review Act” (CRA) establishes a special set of procedures through which Congress can nullify final regulations issued by a federal agency.  (Indeed, according to an article issued by the Congressional Research Service (CRS), the CRA could potentially be used to overturn final CFPB rules issued after mid-May 2016, which would include the CFPB’s final prepaid card rule issued on October 5, 2016.)

The CRA (5 U.S.C. Sections 801-808) was enacted in 1996 as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA).  Under the CRA, an agency must submit a final rule to Congress and the Government Accountability Office before the rule can take effect.  Upon receipt of the rule by Congress, members of Congress have a specified time period during which they can submit and take action on a joint resolution disapproving the rule.  If the resolution is passed by both the House and Senate, it is sent to the President for signature or veto.  Most significantly, the CRA’s special procedures establish a process under which a joint resolution of disapproval cannot be filibustered in the Senate and can be passed with only a simple majority.

The enactment of a CRA joint resolution disapproving a final rule prevents the rule from taking effect.  If a rule has already become effective, it no longer continues in effect and “shall be treated as though such rule had never taken effect.”  The joint resolution’s enactment would also bar an agency from reissuing the rule “in substantially the same form” or issuing a “new rule that is substantially the same” as the disapproved rule “unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”  A CRS report on the CRA states that the CRA does not define the meaning or scope of “substantially the same,” what criteria should be considered in determining if a reissued or new rule is “substantially the same,” or who would make such a determination.

The CRA also provides that “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.”  The CRS report indicates that two federal appeals courts and several federal district courts have determined that this CRA provision prohibits judicial review of any question arising under the CRA while one federal district court ruled that it could review a claim based on noncompliance with the CRA.

According to the CRS, the CRA procedure has only successfully overturned one agency final rule—a 2000 OSHA workplace-related rule.  The reason most commonly cited for why only one rule has been successfully overturned using the CRA over the 20 years since its enactment is that a de facto supermajority vote is required to enact a CRA resolution of disapproval.  While all congressional votes related to such a resolution can be simple majority votes, if the resolution is vetoed by the President, a two-thirds majority of both houses of Congress would be necessary to override the veto.  It is expected that a President will veto a joint resolution attempting to strike down a rule issued by his or her own Administration.  (The CRS indicates that in the 114th Congress (2015-2016), President Obama has vetoed four CRA disapproval resolutions.)

The election of Donald Trump as President presumably makes it unlikely that a CRA joint resolution disapproving a final CFPB arbitration rule would face a Presidential veto.  Having retained control of the House and Senate, Republicans would therefore be able to use the CRA to nullify a final CFPB arbitration rule through a simple majority vote and not have to overcome the hurdle of a supermajority vote.

In addition to the CRA, CFPB rulemaking could face another potential roadblock should the D.C. Circuit’s decision in CFPB v. PHH Corporation take effect.  That roadblock is Executive Order 12866, which requires a federal agency that is not considered an “independent regulatory agency” to submit regulations that qualify as a “significant regulatory action” to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget for review before publication in the Federal Register.  For the reasons discussed in our recent blog post, the CFPB could be required to submit any rules it has not yet finalized for OIRA review and even face challenges to its final rules, including those that have already become effective, on the basis that such rules were not, but should have been, reviewed by OIRA.