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Unclaimed Property Focus Blog Home All Blogs
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UNCLAIMED PROPERTY FOCUS is a blog written by and for UPPO members, featuring
diverse perspectives and insights from unclaimed property practitioners across
the U.S. and Canada. We welcome your submissions to Unclaimed Property Focus.
Please contact Tim Dressen via tim@uppo.org with any questions about submitting
a blog post for consideration and refer to our editorial guidelines when writing
your blog post. Disclaimer: Information and/or comments to this blog is not
intended as a substitute for legal advice on compliance or reporting
requirements.
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UNCLAIMED PROPERTY NEWS ROUNDUP
Posted By UPPO, 23 hours ago
Updated: 23 hours ago
Unclaimed property often makes news headlines, and UPPO occasionally provides a
snapshot of some of the more interesting and entertaining stories receiving
coverage from local and national media outlets.
On Nov. 22, 2021, WCTV reported on a Louisiana man who allegedly attempted to
claim more than $138,000 in Florida unclaimed property that didn’t belong to
him. He faces 25 felony counts of theft, fraud, forgery and related charges.
On Nov. 24, 2021, Dayton Daily News in Ohio published an article about the
state’s $3 billion in unclaimed property holdings and questioned why it hadn’t
implemented more proactive steps to return the funds. The report lists several
methods for identifying property owners that haven’t been implemented in Ohio.
On Dec. 13, 2021, shortly after severe storms devastates large parts of
Kentucky, WDRB reported that Kentucky Treasurer Allison Ball announced it her
office would accelerate unclaimed property claims from citizens in counties most
affected by the storm.
On Jan. 2, 2022, the Connecticut Mirror ran an extensive report questioning
Connecticut’s unclaimed property practices. The article suggests that some of
the state’s methods make it difficult for property owners to identify and claim
their property, and questions whether legislators hesitate to reform such
practices because they use the funds to “help pad” the general fund.
Tags: fraud unclaimed property
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THIRD CIRCUIT STATEMENT IN SIEMENS RULING MUDDLES PRIORITY RULES
Posted By UPPO, Thursday, January 6, 2022
Updated: Thursday, January 6, 2022
In its October 2021 ruling in favor of Siemens USA in litigation over the
constitutionality of Delaware’s unclaimed property audit and escheatment
practices, the Third Circuit Court of Appeals included an unusual declaration
regarding the priority rules that left some unclaimed property professionals
puzzled.
The court took issue with Siemens’ assertion that the portion of the Texas
trilogy framework that gives priority to the state of the debtor’s incorporation
when the creditor’s last known address is in a state whose laws do not provide
for escheat is no longer relevant because all 50 states and the District of
Columbia now have escheat laws.
“We reject an interpretation foreclosing the state of corporate domicile from
claiming priority simply because the state of the creditor’s last known address
has an escheat regime, regardless of whether that regime would take the property
type at issue,” the court wrote. “We instead read the Texas trilogy to state
that, even if the state of the creditor’s last known address has an escheat
regime, if it does not provide for escheat of the specific property type at
issue, then the state of corporate domicile can still claim priority if its
broader escheat laws do provide for escheat of that specific property type.”
This interpretation raises questions about property exempted from escheatment in
some states but not others, such as business-to-business exemptions.
“I think the court’s statement about the priority rules is overly broad and
lacks context,” said Wilson Barmeyer, partner with Eversheds Sutherland. “The
court gives an accurate recitation of the language from Texas v. New Jersey,
which says that if there's property that's not escheated by the first state,
then it could go to the second state, but there are a lot more questions than
answers on whether and how this rule should be applied in practice or in future
disputes.”
James Ryan, member attorney with Bailey Cavalieri, said, “I think the language
at the end of this case is something that lawyers refer to as dicta. That
basically means this is extraneous language that wasn't necessary for the court
to make its decision. I don't think that the language at the end of
the Siemens case that the court recites was necessary for the court to make its
decision.”
If the court’s comments were indeed simply extraneous language regarding an
issue about which the court wasn’t briefed, it may not hold up if a state
attempts to enforce it, according to Ryan. The U.S. Constitution’s Full Faith
and Credit Clause generally specifies that one state cannot make a law that
overrules or ignores the law of another state.
“The Third Circuit seems to be saying that Full Faith and Credit Clause doesn't
apply here,” he said. “If Ohio creates a business-to-business exemption, for
example, that's fine, but only for Ohio incorporated or domiciled entities. It
doesn't apply to Delaware domiciled entities that, under the first rule, have
property that's governed by the law of the State of Ohio. So, it becomes a
constitutional mess.”
What could the fallout be from the Third Circuit’s statement regarding the
priority rules?
Conceivably, it could open the door for a state without a B2B exemption, such as
Delaware, to suggest it needs to see records of property that a holder under
audit previously reported and exempted in other states. Viewing those records,
in theory, would be necessary to determine whether it has the right to those
funds and to use that data to extrapolate estimated liability.
It could also lead a state to repeal statute language that says it won’t attempt
to collect unclaimed property specifically exempted by other states to repeal
such language and/or argue that the scope of “specifically exempted” property is
narrower than the statute’s drafters intended.
If a state does attempt to use the Third Circuit’s statement as a basis for
claiming property exempted by another state, it will likely lead to additional
court battles.
“Fortunately, we're living in an era now where people aren't afraid to litigate
these unclaimed property issues,” Ryan said.
Does the Third Circuit statement affect holders’ procedures today?
“For holders who are identifying property and reporting it on an annual
basis, this decision likely does not impact their normal reporting obligations,”
said Barmeyer. “If a holder identifies property with an address in one state,
then they can report the property to that state, and if they don't have
an address, then they can report it to the state of incorporation. Holders
should continue to follow that practice. I think it becomes more difficult
where a holder doesn't have a strong reporting history or for items where the
reporting requirements are not clear in the first priority state.”
In situations involving audits and estimation with disputes over what is and
what's not reportable, the Third Circuit’s position creates potential
ambiguities and, eventually could bring about disputes between the states.
“Unfortunately, the Third Circuit has muddied the water and potentially created
a situation where more than one state could have a claim to a particular
property,” Barmeyer said. “Although the language of the court in some ways comes
from statements in Texas v. New Jersey, the point of Texas v. New Jersey was
to establish that one state and only one state has the power to escheat a
particular property, and this decision unfortunately takes us to a place where
that's less clear.”
The 2022 UPPO Annual Conference, March 27-30 in Orlando, includes the Litigation
Updates session, which will review recent legal actions, developments and
rulings, and their potential effects on unclaimed property operations. Learn
about the conference and register today.
Tags: litigation priority rules
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SAFEGUARDING ATTORNEY-CLIENT PRIVILEGE
Posted By UPPO, Wednesday, December 22, 2021
Updated: Wednesday, December 22, 2021
An important part of the U.S. legal system, attorney-client privilege provides
individuals and companies with the ability to communicate openly with their
legal counsel. However, protecting this privilege and preserving confidentiality
requires a concerted effort by attorneys and their clients. Just because someone
shares information with a lawyer doesn’t automatically mean it’s protected. Here
are some practical tips for ensuring confidentiality:
Mark privileged documents
One of the most basic steps to protect information shared with an attorney is
properly marking documents and communications. For physical documents, clearly
label pages with a stamp or include a page header that specifies the document is
confidential. For electronic documents, labeling may be included as part of the
file name. When possible, prevent documents from being opened without a
password.
Mark only documents where there is a legitimate privilege claim. Many items are
not subject to attorney-client privilege, including facts, public documents,
drafts of documents, attorney notes and invoices. As such, these should not be
marked as protected documents. Those that should be marked include
communications containing advice, strategy, liability estimates, and
observations, including discussions on data sufficiency and audit methodology.
Clearly label how the document relates to the provision of legal advice (“in
anticipation of litigation,” for example), and avoid mixing business and legal
advice. Because attorney-client privilege applies only to legal advice—not
business advice—explaining why the content is legal advice and segregating that
content from business advice helps protect the information.
Whatever system you choose to use for labeling privileged documents, apply it
consistently and accurately.
Keep documents confidential and discuss privilege with the team
Share confidential documents only with people who have a legitimate need to see
them. Labeling documents as “confidential” will not sufficiently provide
protection if they are widely available or shared with people who don’t need
access. Keep confidential documents in a secure location with limited access.
When sharing information by email, specify at the beginning of the message that
the communication should not be forwarded and additional people should not be
added to the chain of email responses.
Because unclaimed property touches so many areas of the company, designating the
lead in each area and having a serious, detailed discussion about maintaining
confidentiality is important. Educating everyone involved that limiting access
isn’t a personal afront, but rather a protection to maintain the right to
attorney-client privilege may reduce frustration.
Follow attorney guidance
If any questions or confusion exists regarding who should be brought into
discussions or given access to documents, follow guidance from legal counsel.
Whether it’s internal employees or external consultants, additional people may
occasionally need to be given access to some confidential information. Don’t
make assumptions. Let your attorney take the lead, and don’t discuss sensitive
issues with anyone unless directed to do so by the attorney.
Maintain a privilege log
To help demonstrate that sensitive documents have been properly protected, keep
a privilege log. Track who has seen or been given access to each document. If
questions arise about whether information is truly subject to attorney-client
privilege, the log will reflect that documents are not simply marked as
confidential, but have been accessible only by those who truly needed to see
them.
Attorney-client privilege is a valuable right. When undergoing an unclaimed
property examination, it’s important for companies to have open, frank
discussion with their attorneys without fear of the information being used
against them.
Attorney-client confidentiality is a very important privilege, as it allows you
to talk in confidence to someone you trust without any pushback from government
and within a zone of confidence. Taking steps to maintain this privilege helps
provide an safe environment have discussions without having to share them with
the world.
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BLOCKCHAIN: A COLOSSAL PARADIGM SHIFT
Posted By Christa DeOliveira & Ari Mizrahi, Friday, December 10, 2021
In May 2021, UPPO’s Board of Directors established the Virtual Currency Task
Force. The task force’s responsibilities include reviewing states’ treatment of
virtual currency and unclaimed property, creating UPPO position papers and draft
statutory language regarding virtual currency, and developing member resources
regarding virtual currency basics. This article, contributed by task force
member Christa DeOliveira, provides an overview of blockchain technology used
for virtual currencies.
Blockchain and distributed ledger technology represent paradigm shifts in how
data is stored, updated, and verified; this is markedly different from
centralized ledgers. Traditionally, data’s “single source of truth” was a
central repository complete with elements, primary keys, and pertinent details
in the database. Whereas, with blockchain there are multiple copies of the data
in multiple places and the truth or accuracy is determined by a consensus
algorithm across them.
There is a lot of information and definitions available online, in books,
articles, etc. on blockchain. One alternative for obtaining a primer on
blockchain is Wikipedia. Another alternative can be found on Investopedia.
Blockchain databases leverage distributed ledger technology. However, it is
important to note, distributed ledgers are not used exclusively for blockchain.
Distributed ledgers have shared and synchronized consensus of replicated data.
This data can be distributed across multiple sites, encompassing different
companies or institutions. Also, it can be distributed across geographical
regions and countries.
With distributed ledger technology there is no central administrator; rather,
the database is spread across multiple nodes on peer-to-peer networks. Nodes are
computing participants, such as computers or servers. (A full node contains a
full copy of the blockchain’s transaction history.) These computing devices are
all connected to each other and continuously exchange the ledger data with each
other, keeping all the nodes in sync and up to date. No single person or group
has control; instead, all users collectively retain control.
Depending on which respective blockchain, voting or proof of work occurs through
consensus algorithms on which replicated copies are verified and need to be
accepted as correct. For changes to be made, the nodes must agree on how to
update the blockchain before it can be updated. This occurs in a matter of
seconds or minutes and then any changes made to the ledger are manifested and
copied across all nodes.
At its core, a blockchain is a complete list of transactions that are
transparent so anyone can view and verify. For example, Bitcoin’s blockchain,
contains a full record of every Bitcoin transaction back to its inception. One
example of how blockchain works is to picture the chain of a ship’s anchor.
Instead of links being made from metal links, imagine the links of the chain as
chunks of information called blocks. These blocks contain the real-time,
chronological transaction records held together with cryptography.
At the top of the chain are the most recent transactions and all transactions
are timestamped. Moving down the chain, older transactions become visible – all
the way back to the inception. All decentralized blockchains are immutable;
therefore, the data entries are not reversible, and a full history is available.
Starting from the beginning with the first transaction, there is a cryptographic
hash function recording the transaction. This is generated based on the
transaction details and the encryption algorithm. Transaction two’s hash is
based on the transaction two’s details and the first hash. This continues, each
transaction contains a new hash using the previous hash and current
transaction’s details to generate the current hash. Therefore, to change any one
transaction, each previous transaction in the chain would have to be changed.
Keeping in mind the voting/proof of work transactions would still need to reach
consensus across all nodes to permit any changes. This intentional design is to
make blockchain immutable.
In the case of public blockchains, there is a fully transparent history of
transactions offering integrity and trust and the security works to thwart
manipulation attempts.
A centralized ledger can be prone to cyber-attacks and fraud, as there is a
single point of failure. In contrast, the need for a central administrator or
authority to guard against manipulation is eliminated using blockchain.
This article was originally published by Linking Assets Inc. and is republished
with permission. Christa DeOliveira is chief compliance officer for Linking
Assets Inc. Ari Mizrahi is information technology director for Linking Assets
Inc.
Tags: blockchain virtual currency
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POLICIES AND PROCEDURES: COMPLIANCE’S FOUNDATION
Posted By UPPO, Thursday, December 2, 2021
Updated: Thursday, December 2, 2021
Unclaimed property policies and procedures serve as a foundation for compliance
with reporting requirements, and maintain an effective and efficient method to
process, report and remit unclaimed property. For an unclaimed property
compliance program to be carried out effectively and consistently, policies and
procedures must be documented and followed.
What are the basic building blocks needed to document the reporting function and
all of its responsibilities?
Understand reporting responsibilities for your company. Rules and regulations
vary significantly by jurisdiction and industries. Despite this multitude of
rules, look for opportunities to simplify. For many companies, the majority of
unclaimed property exposure reside in a handful of states. If that’s the case,
they may be able to base their procedures around what those states require.
Staying on top of the legal requirements in the states where the majority of
business occurs is typically the most effective use of limited resources.
More conservative companies may put practices into place that ensure blanket
compliance with the most stringent states’ requirements even if it means going
far beyond the requirements in other states.
Identify all potential sources of unclaimed property. Because states consider so
many different types of property as reportable, it’s important to leave no stone
unturned when outlining company policies and procedures.
Review types of accounts and activities within the general ledger. Identify
accounting activities for amounts reversed to income or expense, write-offs,
voided checks and clean-up reversals. Evaluate promotional programs and
contractual terms, loyalty programs, rebates and incentives programs, invoicing
and settlement practices. Determine whether owner names and addresses are
available.
Document not only what is considered unclaimed property in your company, but
also other areas that have been reviewed and determined to not require
reporting. Doing so helps ensure consistent application of policies and
procedures.
Build a team. Resources dedicated to unclaimed property may be scarce, so begin
with what you have and build on it. You may not have buy-in from all the
necessary people immediately, but as they become more familiar with what
unclaimed property is, why compliance matters and how their role in compliance
is important to the company’s goals, buy-in will increase.
Involve all entities, divisions and departments. Define and assign
responsibilities. For each area, establish department procedures, including:
* Identifying unclaimed property.
* Researching.
* Setting materiality limits and time frames.
* Detecting errors or irregularities.
* Resolving with the owner.
* Retaining adequate supporting documentation.
Address how mergers and acquisitions will impact annual reporting. When becoming
aware that a merger or acquisition has occurred, the holder must analyze the
specific terms of the agreement to know what’s being purchased and what’s being
retained – and whether there’s a provision addressing unclaimed property.
Addressing M&A activity in unclaimed property procedures can help avoid
confusion when such a transaction is under consideration or has recently
occurred.
Create an audit-ready one-stop shop. Actively following policies and procedures
will make things much easier if auditors or other stakeholders require
documentation of unclaimed property decisions. Recommended steps include:
* Create a designated unclaimed property liability account.
* Capture requisite details needed for reporting. Analyze data accessibility
and evaluate the cost-benefit of automation.
* Reconcile to a sub-ledger database.
* Establish record retention provisions.
* Safeguard unclaimed property, including data security controls, segregation
of duties and internal controls and oversight.
Establishing policies and procedures is merely the beginning of their lifespan.
Unless they are followed, maintained and updated, guidelines and documentation
serve little purpose. Make sure to include provisions for regularly reviewing
and updating policies and procedures, and communicating changes to team members.
Tags: compliance Policies procedures unclaimed property
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struggling. With some holders facing the need to file for bankruptcy, this
webinar will example unclaimed property obligations both before and after
filing. Cost: Free with membership. One CPE available.
The 2022 Annual Conference is the leading event for professionals responsible
for unclaimed property. It integrates networking and premier education into
every aspect of the 3.5 day agenda. You'll leave the conference with the
information and connections needed to minimize your company's risk, and achieve
and sustain compliance with unclaimed property laws and regulations. See rates
below.
2/16/2022
Bankruptcy Implications on Unclaimed Property Webinar
3/27/2022 » 3/30/2022
2022 Annual Conference
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