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Unclaimed Property Focus
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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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Inside the B2B exemption

Posted By Administration, Thursday, January 21, 2016

Unclaimed property laws exist to protect property owners, ensuring the ability to claim what is rightfully theirs. These laws are especially important for consumers, who may have no knowledge or record of property they legally own. However, several states have exempted businesses from these protections under the premise that they do not need the same level of protection as consumers. Businesses have more robust record-keeping systems as well as resources to manage their transactions and relationships.

 

“To B2B, or not to B2B,” a session at the 2016 UPPO Annual Conference, will offer an in-depth look at the various state business-to-business (B2B) rules, the nuances of applying the exemption, and the best ways to mitigate risk when doing so.

 

“The B2B exemption affords holders a really unique opportunity in a business function—unclaimed property—that is often thought of solely as a cost center,” says Michael Unger, unclaimed property manager at Crowe Horwath LLP. “These states have provided some favorable legislation, so holders should take advantage of that.”

 

As with other unclaimed property rules, not all B2B exemptions were created equally. States offering the exemption can be grouped into one of four categories:

 

  • Substantial exemption: Illinois, Kansas, Maryland, Ohio and Virginia offer the most favorable rules, exempting most B2B transactions and property types.
  • Partial exemption: Some states provide mostly favorable statutes but may apply some thresholds or property type limitations. These states include Indiana, Iowa, Massachusetts, Michigan, North Carolina and Wisconsin.
  • Limited exemption: A few states appear to exempt B2B property but require an ongoing business relationship. In practice, this exemption is actually a deferral. When the relationship ends, the dormancy period begins. States with a limited exemption include Arizona, Missouri, Nevada and Tennessee.
  • Administrative exemption: Although they don’t have a statutory B2B exemption, New York and Texas have taken the position through administrative advisories or actions that holders may be able to claim B2B exemptions.

B2B exemptions can be extremely beneficial, substantially decreasing a holder’s liability. However, applying those exemptions comes with some inherent organizational risks.

 

“There are not many exemptions that can be applied similarly across all of the B2B states,” Unger says. “Understanding the nuances is important.”

 

Among the questions holders need to consider when applying the B2B exemption are:

  • Which property types are exempt?
  • How does a state define a business?
  • Is due diligence required for items that are flagged as exempt?
  • Do exemptions apply for the holder’s specific business type—telecommunications, financial, or healthcare, for example?
  • How should documentation be handled and how long do records need to be maintained in case a state questions the exemption in the future?

“When someone asks about mitigating risk, I try to understand their risk profile,” Unger says. “One company might be more willing to take on risk for the benefit of the exemption. Others are more risk averse and would rather err on the side of reporting the item if they’re not sure whether the exemption applies or how the state intends the statute to be read. So it’s helpful to build a risk profile to determine what positions the holder wants to take and then be consistent with how the exemptions are applied each year.”

 

The B2B exemption is one of several areas under consideration by the Uniform Law Committee (ULC) as it works to finalize the Revised Uniform Unclaimed Property Act (RUUPA), scheduled for release this summer. Until recently, the ULC included two alternatives in the RUUPA draft—an exemption contingent on the holder and owner companies maintaining an ongoing business relationship (alternative A), and a comprehensive, blanket B2B exemption (alternative B).

 

UPPO advocated for the drafting committee to adopt alternative B, arguing that unclaimed property laws are intended to protect consumers. Businesses don’t need the support of the state to monitor unclaimed property because they have sophisticated accounting resources (software and staff) to manage business relationships. Often, amounts reflected as debts to other businesses are merely accounting errors that are later reconciled in some manner (e.g., settlements). Even if amounts are owed, businesses may make affirmative decisions not to pursue debts because the amounts owed are immaterial or for other important business reasons. UPPO also recommended that alternative A be deleted from the RUUPA as an unworkable option that would be difficult to implement and time-consuming, thereby adding unneeded challenges to compliance.

 

Unfortunately, the RUUPA draft issued before the October 2015 meeting eliminated the exemption alternatives, seemingly allowing each state to determine whether it will craft a B2B exemption.

 

“The ULC is in a difficult position of having to balance a lot of different stakeholders,” Unger says. Despite this challenge, Unger doesn’t believe it’s insurmountable. He points to tax structuring as an example of a system that offers a balance between governmental and business needs.

 

“If we can figure out how to structure the tax climate, I think we can figure out how to find a B2B exemption that’s going to work for all parties,” he says. “Policymakers and states have successfully navigated tax structuring to promote a climate that fosters long-term relationships with businesses. I think that we can do the same with the unclaimed property act and the B2B exemption. I’d like to think we could find something that isn’t going to sacrifice consumer protection but is also favorable for consistent filers of unclaimed property.”

 

B2B exemptions offer holders a great opportunity to lower their unclaimed property liability, but implementing them correctly is essential. For a more extensive look at the intricacies of B2B exemptions, attend the “To B2B, or not to B2B” session at the 2016 UPPO Annual Conference, March 20 – 23. Register today.

 

Tags:  B2B  exemption  unclaimed property 

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UPPO Asks: What is Your Top Goal for 2016?

Posted By Administration, Thursday, January 14, 2016

UPPO is pleased to introduce a new recurring feature, UPPO Asks. Periodically, UPPO will ask members to respond to a new question, sharing their ideas, insights, and experience.

 

This time around the question we asked this to members - “What is your top goal related to unclaimed property for 2016?”

 

“My top goal for 2016 is uniform consistency across all states related to laws, property type, dormancy periods, acceptance/delivery of all security type instruments. While I know the Uniform Law Committee is working on this task, the involvement across 54 state jurisdictions is tasking to manage.” —Sal Bianco

 

“My goal for 2016 is to finalize and implement policies and procedures for addressing open credits with active and inactive customers to minimize escheatment exposure and have a more accurate accounting record. Policy will include timelines to verify the credit and reach out to the customer to either refund the credit or apply to a future invoice.” —Cindy Bobbitt

 

“My top goal for abandoned and unclaimed property this year is to help/assist our plants/field operations to understand the importance around maintaining compliance with all the state laws on an ongoing basis. This will include holding training sessions via webinar with key stakeholders throughout the year. In addition, to help them understand this needs to become part of their day-to-day job responsibilities.” —Rick Mah

 

Now it’s your turn. What do you hope to achieve this year? Add a comment below to share your response.

 

Tags:  unclaimed property 

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Two sessions focusing on ULC reform developments

Posted By Administration, Tuesday, January 12, 2016

The Uniform Law Commission’s (ULC) effort to revise the Uniform Unclaimed Property Act (RUUPA) has captured the attention of the unclaimed property profession since it picked up the issue in 2013.  As we draw closer to the project end date of July 2016, there’s much that’s not clear and awaiting a decision. At the 2016 UPPO Annual Conference, March 20 – 23; Palm Springs, Calif. there will be two sessions dedicated to talking nothing but ULC. These sessions feature the leaders in unclaimed property reform, and represent unique stakeholder perspectives. If you’re interested in staying in the know, add at least one of these sessions to your personal conference schedule.


Unclaimed Property Reform: Where are we now?
Monday, March 21; 9:15 – 10:15 a.m.
The stakeholders  part of the effort to revise the Uniform Unclaimed Property Act will participate in a moderated, roundtable discussion to share viewpoints on the key issues being grappled with in the Uniform Law Commission forum. This session is sure to be engaging and informative with the number of perspectives represented.


Panelists:
Carolyn Atkinson, advisor to the ULC drafting committee on behalf of the National Association of Unclaimed Property Administrators
Kendall Houghton, UPPO Government Relations and Advocacy Committee (GRAC) co-chair and UPPO’s ULC spokesperson
Michael Houghton, ULC drafting committee co-chair
Ethan Millar, advisor to the ULC drafting committee on behalf of the American Bar Association
David Westmark, Thrivent Financial 


Moderator:
Debbie L. Zumoff, UPPO ULC work group chair


ULC session: Where the ULC stands on our issues
Tuesday, March 22; 11:15 a.m. – 12:15 p.m.
Interact with and hear from some of UPPO’s advocacy leaders during this session which will catch you up on where the RUUPA stands on the issues that UPPO members identified as priorities. UPPO has been engaged in the ULC reform process in various capacities, and have been driven by representing our members and the issues most important to you.  


Speakers:
Karen Anderson, UPPO GRAC co-chair
Michelle Andre, UPPO GRAC co-chair
John Coalson, UPPO GRAC member
Kendall Houghton, UPPO GRAC co-chair and UPPO’s ULC spokesperson

Early bird registration savings end Jan. 27 -- don’t miss out and register today!

 

 

Tags:  reform  ULC  unclaimed property  Uniform Unclaimed Property Act 

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A Look at the Trends Shaping 2016

Posted By Administration, Thursday, January 7, 2016

With 2015 already beginning to fade away in the rearview mirror, the start of the new year is the perfect time to scan the landscape and consider what may await on the road ahead. No question, 2016 is shaping up to be an action-packed year. Courts are considering several noteworthy unclaimed property cases. States continue to focus on unclaimed property issues. Holders find themselves subject to daunting audits. And the Uniform Law Commission (ULC) is scheduled to wrap up with its work on the Revised Uniform Unclaimed Property Act (RUUPA). With so many things happening, we asked several UPPO members to share their insights into the trends that may ultimately define 2016 for unclaimed property professionals.

 

Audits

Unclaimed property audits are changing on multiple fronts. For one, states are beginning to work with more audit firms. New names are joining familiar third-party auditors Kelmar and Verus, and this trend is likely to continue as Delaware has made a concerted effort to diversify. While holders certainly have no sentimental attachment to the familiar audit firms, the introduction of new players can be problematic. New auditors introduce new tactics and methodologies, diluting an already inconsistent process even further.

 

“For holders, the fact that there are new audit firms that aren’t as experienced in the unclaimed property audit process can cut both ways,” says Susan Han, principal of Ryan’s Abandoned and Unclaimed Property Practice. “The auditing and scoping process can be frustrating because these auditors are not as seasoned in unclaimed property and don’t always take into consideration the immateriality of certain acquisitions and property types.”

 

Similarly, additional states are expanding their audit efforts.

 

“As a result of their collaboration on the RUUPA, states are working closer than they have in the past,” says Michelle Andre, managing member of Tre Towers Advisory Group, and UPPO Government Relations and Advocacy Committee (GRAC) co-chair. “I think you’ll see more audits and they’ll broaden to not just the usual suspects like Delaware, New Jersey and Massachusetts.”

 

In fact, some companies are already finding themselves subject to multiple simultaneous multi-state audits from separate audit firms.

 

“I think we’ll see more holders subject to two or three separate audits at the same time—perhaps even two or three multi-state audits—conducted by different contract audit firms,” says Kendall Houghton, partner at Alston & Bird LLP and GRAC co-chair. “The ability to dedicate adequate resources to the audit response and defense function becomes a real problem when dealing with multiple audits at the same time.”

 

As this audit expansion grows, holders who historically have not been audit targets may find themselves in the crosshairs. With large companies in heavily targeted industries increasingly strengthening their compliance practices and limiting their exposure, auditors may branch out.

 

“Given that many Fortune 1000 companies already have unclaimed property processes in place or have undergone unclaimed property exams, new audits will likely target middle market revenue companies and industries that haven’t historically been explored for audits,” says Han.

 

Litigation

When it comes to audit practices, all eyes are on Temple-Inland Inc. v. Cook, a court case that questions Delaware’s use of and methodology for estimation in audits. Even with a decision likely this year, the ultimate impact may still be years away, assuming the losing party challenges the decision. Thus, additional litigation related to audits is likely.

 

“I think we’ll see more litigation involving audits, aimed at figuring out why companies got selected for audits and questioning how audits are conducted,” says Jamie Ryan, member with Bailey Cavalieri LLC. “I also think we’re going to see an increase in litigation because holders have become more educated. They know they have legal rights they can assert.”

 

Andre also sees more litigation aimed at defining the rights of states and their audit firms. “Companies are beginning to challenge whether the audit process entails illegal search and seizure,” she says. “The decisions for cases like Plains All American v. Cook will impact the way holders look at audits and how states conduct audits.”

 

Most recent unclaimed property litigation has been between holders and states, owners and holders, owners and states, or holders and auditors. However, like the seminal jurisdictional cases (Texas v. New Jersey, Pennsylvania v. New York and Delaware v. New York), more cases involving states battling each other could occur in the near future.

 

“Delaware law conflicts with the laws of many other states in regard to domicile of limited liability companies, so that could be an area of litigation—disputes between states,” says Chris Hopkins, partner with Crowe and Horwath LLP. “That could be very interesting to watch.”

 

Advocacy and legislation

Holders and states alike have been diligently working to promote their preferred revisions to the Revised Uniform Unclaimed Property Act (RUUPA). The ULC is expected to issue its final draft this summer, but that is by no means the end of the advocacy effort.

 

“Even though the ULC will promulgate a 2016 RUUPA in the summer, that just means it’s been adopted by the commissioners,” says Houghton. “There will need to be subsequent movement through state legislatures, so that act will be a significant focus through 2016 and beyond. It will likely take at least four to five years to see the full first wave of adoption.”

 

It’s anyone’s guess which aspects of the new act the states will ultimately adopt. Educating lawmakers and convincing them of the need for laws that are fair not only to the states themselves, but also the owners and holders will likely be difficult.

 

“It’s going to take a lot to get them to come around,” says Marcella Easly, senior compliance advisor at Unclaimed Property Consulting & Reporting LLC. “The state administrators are willing to work with the holders to change, but when the legislators get involved, it gets tough.”

 

As states prepare for the RUUPA, some may preemptively begin introducing legislation aimed at supporting their positions.

 

“The states may look to the recent 2015 drafts of the revised 1995 Uniform Unclaimed Property Act and begin introducing legislation to clarify their collective view of how unclaimed property compliance should be administered,” says Debbie L. Zumoff, chief compliance officer at Keane and chair of UPPO’s ULC workgroup. “We may see some early legislative proposals that would view securities, broker-dealer accounts and mutual funds, for example, via the catch-all provision of the laws, in an effort to reinforce an inactivity dormancy trigger for such asset classes. This would be a retreat from any notion of returned mail as a dormancy trigger for securities related assets and instead promote the notion of inactivity alone, increasing the potential for more assets to be presumed abandoned.”

 

States may also seek to limit their liability for the growth of property they liquidate.  

 

“We may see increased liability left at the threshold of the holder community,” Zumoff says. “States may propose legislation that will enhance the due diligence responsibilities of holders prior to reporting and limit state indemnification to the value of the property at the time it was delivered to the state. So if a holder delivers property to the state valued at $1,000 dollars and 10 years from now it’s worth $10,000, but the state sold it shortly after receiving same, the state might only indemnify the holder for the original $1,000 value, not the $9,000 growth. That sets up a catch-22 when it comes to owner claims for the property years after reporting. The states may not want to assume the liability for the growth.”

 

Karen Anderson, vice president, reporting compliance at Keane and GRAC co-chair, agrees that states and holders alike will likely ramp up their advocacy efforts before the new uniform act is issued.

 

“In spring 2016, some states may try to change their laws to indicate that the Derivative Rights Doctrine doesn’t apply to things like rebates or gift cards or business credits,” she says. “Also, businesses and their trade associations may push back by attempting to pass more business to business exemptions, because the ULC likely won't recommend a business exemption in the revised uniform law. So, business groups may advocate more intensely for those exemptions prior to the revised uniform act being adopted.”

 

Houghton also expects holders to continue seeking opportunities to fight for their legislative agenda in addition to defending against onerous state-backed legislation.

 

“I think holders will continue to identify opportunities to improve states’ unclaimed property laws and will promote legislation for that purpose,” she says. “In 2015, for example, the introduction of a B2B exemption in Nevada was a holder-introduced initiative. In Michigan, there was the recent enactment of laws to improve the audit process in the state. And, certainly, holders supported a Delaware law to render permanent the availability of the secretary of state’s VDA program. Holders are increasingly doing a better job of identifying specific areas to improve the landscape and fairness.”

 

Looking ahead

From landmark court decisions to the RUUPA final draft, 2016 is shaping up to be a significant year in the unclaimed property world. UPPO will continue to track and report on these and other developing trends throughout the year. Watch this blog for updates and attend UPPO educational events to help you adapt to the rapidly evolving unclaimed property environment.

 

Tags:  advocacy  audits  legislation  litigation  RUUPA  ULC  unclaimed property 

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2015 litigation roundup

Posted By Administration, Tuesday, December 29, 2015

The past year saw several noteworthy cases related to unclaimed property move through the U.S. court system. As they progress, these cases could provide clarity regarding a variety of issues, including states’ estimation techniques, gift card liability, the Derivative Rights Doctrine, states’ due diligence responsibilities,  and federal vs. state jurisdiction. Following is a roundup of the most interesting unclaimed property cases filed and proceeding through the courts in 2015.

 

Temple-Inland Inc. v. Cook

Expected to have a significant effect on the unclaimed property industry, Temple-Inland Inc. v. Cook looks at the legality of Delaware’s estimation techniques. The plaintiff company was audited by Delaware through its third-party agent, Kelmar. A single payroll check in the amount of $147.30 that should have been escheated to Delaware, resulted in an estimate of approximately $2 million (eventually reduced to $1.3 million) due to the state. In May 2014, Temple-Inland filed suit, alleging violations of several federal laws based on the auditor’s estimation methods.

 

“What’s interesting about this case is that it could blow up Delaware’s whole process for extrapolating a liability due to Delaware based on very small actual amounts,” says Chris Hopkins, partner with Crowe and Horwath LLP.

 

In March 2015, a U.S. district court dismissed one count of the compliant, which alleged violation of and preemption by federal common law. However, the case is moving forward based on the remaining counts.

 

“The fact that Temple-Inland will likely go to trial is an indication that the claims have at least enough merit for the court to hear the case,” says Tom Wrocklage, state and local tax manager with Crowe Horwath LLP. “A ruling on this case would resolve a lot of questions about Delaware’s estimation techniques.”

 

Osram Sylvania Inc. v. Cook et. al.

Another case that examines the legalities of Delaware’s estimation methods is Osram Sylvania Inc. v. Cook et. al. Lighting manufacturer, Osram Sylvania, filed suit in December 2014 challenging Delaware’s estimation methods, posing similar arguments to those in the Temple-Inland case.

 

After the memorandum opinion issued in Temple-Inland, Osram filed a Notice of Voluntary Dismissal without prejudice. Because most of the allegations of violations of federal law are being contemplated in the Temple-Inland case, this Notice of Voluntary Dismissal was likely based on these issues being addressed by Temple-Inland. Since the court closed the case without prejudice, it could resume if the issues at hand aren’t resolved by a Temple-Inland decision.

 

Delaware ex rel. French v. Card Compliant LLC

On Nov. 23, 2015, a Delaware Superior Court denied a motion to dismiss the 2013 qui tam (whistle blower) case, Delaware ex rel. French v. Card Compliant LLC. Filed by a former employee of Card Compliant, the lawsuit targets a third-party company that retailers use to move their gift card liability outside of Delaware. Among the allegations, the plaintiffs claim that the company didn’t account for the transfer of liability as it was specified in contracts with the retailers.  Liability wasn’t truly transferred and, thus, the retailers had the obligation to remit unclaimed property to Delaware but didn’t do so.

 

The case raises the question whether property holders can shift their liability via a contractual arrangement with another company. Because of the allegations brought in this case, however, the court is more likely to focus on technical questions. Did the parties follow their contractual obligations? If not, is there a liability to Delaware for failure to report unclaimed property?

 

With the court’s rejection of the dismissal motion, litigation continues.

 

JLI Invest S.A. et al. v. Cook et al.

A case addressing the Derivative Rights Doctrine, JLI Invest S.A. et al. v. Cook et al. also tackles the interplay between federal securities law, international law, and Delaware state law. This case involves two Belgian doctors who were partial owners of a company that merged with a publicly traded Delaware company. Delaware alleged that the doctors were no longer in contact with the company, so their stock was unclaimed property. Within three days of escheatment, Delaware sold the shares for $1.7 million. The doctors learned of the sale when they later attempted to sell shares for $13.72 million.

 

The lawsuit addresses the question why Delaware, if acting as a custodian of the unclaimed property on behalf of its owners, liquidated the shares rather than simply holding them. The suit also questions whether Delaware has the right to require the escheatment of property belonging to people with foreign addresses.

 

“If Delaware even has the right to get this property, it seems that the state should have a heightened fiduciary responsibility to people outside of this country who may not have unclaimed property laws,” says Jamie Ryan, member with Bailey Cavalieri LLC. “These folks may have no concept under their country’s laws that they need to have ongoing contact with the property holder. The concept of unclaimed property may be completely absent. So hopefully we’ll get some guidance out of this case.”

 

Plains All American Pipeline L.P. v. Thomas Cook et al.

A limited partnership incorporated in Delaware, Plains All American Pipeline (Plains), received notification in 2014 that Delaware’s third-party agent, Kelmar, would be conducting an audit of the company. Plains objected to the initial information request, claiming, in part, that the company was being audited not because of any suspicion of wrongdoing, but rather because of its profitability. When Delaware dismissed the company’s objections, Plains filed suit. Among the complaint’s allegations, Plains argues that Kelmar’s request for information about subsidiaries organized outside of Delaware constitutes illegal search and seizure under the Fourth Amendment. The company believes the state and its agent have no right to that information and, if they did, they would need to have reasonable grounds to search for it. The complaint also directly challenges Delaware’s right to use estimation.

“The most interesting part about the Plains case is that the audit hadn’t even started,” Ryan says. “They said the fact that Delaware is asking for certain information violates the Fourth Amendment, which is a very interesting point of view.”

 

National Freight Inc v. Sidamon-Eristoff

National Freight is a New Jersey trucking company subject to federal law—the Interstate Commerce Act. In 2010, New Jersey began an unclaimed property audit of the company. After the audit, National Freight filed suit, challenging the audit. In part, the challenge took on the method used to calculate the penalty portion of the assessment, saying it included disbursements and credits owed to states other than New Jersey, including states that exempt certain things like business to business property. The suit claims the penalty calculation didn’t take into account other states’ exemptions.

 

The compliant also argues that New Jersey is preempted from regulating certain parts of National Freight’s business, including pricing, routes and services provided, which are regulated under federal law. Because the property type challenged in this case—customer credits—is part of pricing, National Freight argues it falls under the Interstate Commerce Act rather than state law. The company also claims the state is imposing a burden on interstate commerce, which is prohibited under the U.S. Constitution’s Commerce Clause.

 

“This is an important case because we have a lot of businesses regulated by federal law—banking, securities and brokers, for example—who will be interested in the preemption argument and the interplay between federal and state law, for which we currently have very few case law decisions,” Ryan says.

 

Taylor v. Yee

Since 2007, California has required holders to send owners a due diligence letter and file a preliminary report to the state, which then sends a second notice. After the owner fails to respond to both notices, the holder remits the property to the state. The plaintiff in Taylor v. Yee argues that California should search its other databases to find better addresses for the second, state-sent notice. The Ninth Circuit Court’s decisions have upheld the state’s process.

 

The plaintiff has petitioned the U.S. Supreme Court to review the Ninth Circuit Court’s decision. On Sept. 8, 2015, UPPO submitted an amicus brief, supporting the plaintiff’s petition. The defendant responded by filing a motion opposing UPPO’s rights to file an amicus brief. Although it is common for a defendant to argue against the content of an amicus brief, opposing the right to file a brief entirely is much less common. The court has not yet respond to the defendant’s motion – to date the court’s conference has been rescheduled four times.

 

Kemper companies v. Michael Frerichs and Verus Financial LLC

Three Kemper Corporation insurance companies filed suit on Oct. 26, 2015, against the Illinois state treasurer and auditor Verus Financial. The suit addresses the question of when the obligation of a life insurance company to pay benefits arises, and when the applicable state dormancy period begins. The plaintiff takes issue with the “Death Master File (DMF) standard” that would compel an insurer to pay benefits upon an insured’s name appearing on the DMF rather than when a claim is filed. Learn more about this case.

 

For additional information about noteworthy unclaimed property cases, check out UPPO’s govWATCH website. If you’re planning to attend the 2016 Annual Conference, March 20 – 23 in Palm Springs, Calif., check out the session titled 2015 in Review: Litigation Update, for additional discussion.

 

Tags:  litigation  unclaimed property 

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