Being the corporate home to many of the biggest companies in the world carries certain valuable perks for Delaware — along with a lot of bickering.
Thanks to its status as the legal domicile for more than 1 million business entities, including more than two-thirds of Fortune 500 companies, and to various U.S. Supreme Court rulings dating to 1965, Delaware is able to lay claim to the abandoned property of those businesses.
As a result, abandoned property — everything from uncashed checks and forgotten utility deposits to dormant bank accounts and unclaimed stock and insurance policies — has become a key revenue source for Delaware. It is the third-largest source of funds for state government, regularly exceeding half a billion dollars annually and accounting for $631 million in gross revenue in 2013.
It also remains an irritant for corporate America, with some companies complaining that Delaware’s abandoned property laws have led to unconstitutional money grabs.
The latest lawsuit was filed early this month by Illinois-based chemical supplier Univar, which received an audit notice in December 2015.
“Defendants chose Univar as a target based on its perceived profitability and not based on neutral criteria or any criteria bearing a rational relationship to a legitimate governmental interest,” the company said in its complaint.
Univar is asking a federal judge to declare that Delaware, through its contracted auditor, Kelmar Associates, has subjected Univar to an unclaimed property audit that infringes on the company’s right to be free from unreasonable searches and seizures, violates its due process and equal protection rights, and amounts to an unconstitutional taking of private property for public use without just compensation.
“We’ll litigate it in court,” said Delaware Secretary of Finance Rick Geisenberger.
Meanwhile, a pending U.S. Supreme Court case, which could have far-reaching consequences, pits Delaware against more than 20 other states in a dispute over who can lay claim to uncashed “official checks” issued by a subsidiary of Moneygram International, a Texas-based money-transfer company. According to one court filing, more than $162 million worth of those checks went uncashed from 2011 to 2015.
States suing Delaware argue that those checks are similar to money orders, which in many cases are handed over to the state where they are purchased if left uncashed.
Univar’s court filing comes despite a state law enacted last year to ward off such litigation. The legislation was drafted after a 2016 court ruling in which a federal judge in Wilmington blasted Delaware’s practices, saying they violated due process and amounted to a game of “gotcha” that “shocks the conscience.”
The bill was aimed at bringing more predictability, efficiency, and fairness to unclaimed-property reporting and compliance rules. Among other things, it reduced the “lookback” period for audits to 10 years and created a 10-year statute of limitations for the state to seek payment of unclaimed property. It also established record-retention requirements for businesses to make it easier for them to comply with annual reporting mandates. In the absence of records, Delaware officials frequently rely on a controversial estimation process to determine what a company owes.
Rather than face audits, more and more businesses are choosing to enter into voluntary disclosure agreements, or VDAs, with the state. Hundreds of companies have elected to participate in the VDA program since it was established in 2012 to make the abandoned property process more business friendly.
Last year, Delaware officials received 5,432 unclaimed property filings, in addition to 4,295 “negative” reports from companies stating that they owed nothing. If the state believes that a company might be holding back on reporting abandoned property, it will invite the company to participate in a VDA before sending an audit notice.
“I can’t imagine being more user friendly than that,” Geisenberger said.
State officials say Univar has failed to provide requested information, prompting officials to take the unprecedented step of issuing an administrative subpoena for the records. Univar responded with its lawsuit, and state officials are now asking a Chancery Court judge to order Univar to comply with the October subpoena.
“Obviously, they don’t want us to do an examination, so they’re not providing us any records,” Geisenberger said. “The idea that a company can say, ‘You have no right to examine us’ … That’s what this is about.”
Univar, whose chief financial officer is former DuPont Co. executive Carl Lukach, declined to answer several questions about the lawsuit.