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On January 12, 2017, significant unclaimed property legislation, SB13, was introduced in the Delaware General Assembly.  If enacted, which appears likely, SB13 would make numerous changes to the state’s much-maligned procedures for enforcing its abandoned and unclaimed property laws.  Legislation has been widely expected in the wake of last summer’s summary judgment decision against Delaware in Temple-Inland Inc. v. Cook, 1:14-cv-00654 (D. Del. filed May 21, 2014). In Temple-Inland a federal district court invalidated many of the unclaimed property audit practices authorized by Delaware and implemented by the state’s contract auditors (See our prior coverage Federal District Court Holds Delaware’s Unclaimed Property Enforcement Practices “Shock the Conscience” and Delaware Unclaimed Property Litigation Update). The parties agreed to dismiss the Temple-Inland case before the court could consider remedies to the substantive due process violations it found, and thus, the state was left with the opportunity to pass legislation likely in an effort to preserve the stream of unclaimed property receipts that have become one of Delaware’s largest sources of revenue. Among other changes, the proposed legislation addresses some of the federal district court’s concerns, and provides a path to the state’s voluntary disclosure agreement (“VDA”) program for companies already under audit.  Descriptions of some of the more significant provisions of SB13 follow. Unless otherwise specified, the provisions below would be effective upon enactment of the legislation.

The Delaware Department of Finance’s (the “Department”) unclaimed property enforcement practices continue to undergo challenges in state and federal courts through claims involving both companies and other states. The following is brief overview of the latest developments in a few noteworthy cases.

On June 28, 2016, a federal court gave a major victory to Temple-Inland Inc. in its dispute with Delaware, declaring some of the state’s most egregious unclaimed property audit practices to be unconstitutional executive action. The court found that the state, and its contract auditors, waited more than two decades to perform an audit, ignored the applicable statute of limitations, failed to notify the company that records needed to be kept beyond standard retention periods,…