Category: 5Ws

5Ws: The Proposed Revision to the Uniform Unclaimed Property Act — A Primer for the Well-Adjusted

Earlier this year, to some fanfare in the unclaimed property industry, the Uniform Law Commission (“ULC”) embarked on a quest to revise the Uniform Unclaimed Property Act.  As a glance at the ULC page on the revision makes clear, comments on this endeavor have been made by advocacy groups, holders, industry associations, audit firms, regulators, and locator firms.  There have also been reams of paper spilled on speculation as to what the ULC may or may not do, opinion on what the ULC should or should not do, and commentary on what the ULC’s revisions should or should not be.

We may comment on specific proposals relating to the ULC in due course.  That said, it has come to our attention that (sadly) many people do not follow uniform act revision processes closely as a general matter.  They do not understand the rhythm of the law-drafting process, the delicate beauty of the waltz between legislator and lobbyist, the sweeping grace of the intellectual seed of policy being planted in the fertile soil of the . . . .

Where were we?  For those of you generally aware of all the activity surrounding the uniform unclaimed property act revision, but nevertheless leading well-adjusted lives and with basic questions regarding the process (Where is the State of Uniform, anyway?  Probably near Idaho.) we present the following primer in the form of the “5Ws.”

Who?  The Uniform Law Commission, also known as the National Conference of Commissioners on Uniform State Laws.

Umm….great.  But who are those people?  The Uniform Law Commission is a group of lawyers, appointed by state governments, “to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical.”  Note that the Uniform Law Commission is in no way specific to unclaimed property.  According to the ULC’s website, the organization has promulgated over 300 uniform acts since its founding in 1892.  These folks have brought you such famous hits as the Uniform Commercial Code (“UCC”), the Uniform LLC Act, and the Uniform Probate Code.  Inasmuch as the Unclaimed Property Act deals with the disposition of property arising out of often multistate transactions, and given that a specific item can generally only be escheated to one place (despite efforts to the contrary by unclaimed property auditors) unclaimed property law is clearly one of those topics where “uniformity is desirable and practical.”

What?  Revising the Uniform Unclaimed Property Act of 1995.  (Seriously, if you got this far in the post and didn’t know that yet . . . .)

Where?  In most places.  Or nowhere.  Depends on how you look at it.  As noted above, there is no State of Uniform.  So, who cares what the laws are in that (fictional) jurisdiction?  A lot of people, it turns out.  While the legislation drafted by the ULC is not, itself, “law” anywhere, and is not enforceable by any court or regulator — ULC-drafted legislation is often used as a model by states in drafting their own laws.  For example, while the Uniform Unclaimed Property Act of 1995 (the most recent unclaimed property legislation finalized by the ULC) is not itself enforceable, a version of that Uniform Act is in place in dozens of states.  The takeaways here are (1) the uniform acts are used by states as models for their own legislation, but (2) the uniform act itself is not enforceable anywhere.

When?  Hard to say, but it will take a while.  The ULC has not drafted proposed language for a new uniform act, but has solicited comments from interested parties.  The next meeting of the ULC is scheduled for February.  Some time after that, proposed legislation will be drafted, commented upon, and potentially amended.  Once that happens, the uniform law may be finalized.  As noted above, however, even the promulgation of a new uniform act by the ULC does not make that act enforceable.  The promulgation of a uniform act is thus not the end.  Instead, to paraphrase Churchill, it is just “the end of the beginning.”  The model legislation still must be introduced, sent to committee, debated, voted upon and signed by the governor just like any other legislation.

Why?  Quite simply, the world has changed quite a bit since the last model act was issued (you know, in the last millennium).  In 1995:

  • The is what the internet looked like;
  • The countries of Montenegro, Kosovo, East Timor, and South Sudan did not exist;
  •  The New York Times never had a color photograph on the first page;
  • Google did not exist;

More saliently, 1995 was before the ubiquity of the gift card, before electronic payments, before on-line logins to financial accounts, etc.  The potential revisions to the act will no doubt address many of these developments.  They might also have a thing or two to say about the conduct of unclaimed property audits, the availability of interest paid on unclaimed property held by the state, and number of topics that have arisen in the last 20+ years.

5Ws: CFPB to Review State Gift Card Laws

As has been widely noted, the federal Consumer Financial Protection Bureau, which was set up as part of 2010’s Dodd-Frank Act, is looking into State unclaimed property laws relating to get cards.  Here is the who, what, where, when and why:

Who?  The Consumer Financial Protection Bureau, which opened its doors in 2011, and was created by the 2010 Dodd-Frank Act.  The CFPB is a federal agency which is primarily responsible for (as the name suggests) consumer protection, financial education, and rulemaking relating to consumer finance activities.

What?  According to a press release issued by the agency, the CFPB wants to evaluate whether certain state unclaimed property laws relating to get cards are inconsistent with federal law. Specifically, pursuant to the Credit CARD Act of 2009, most gift and stored value cards are required to be free from expiration for at least 5 years.  In some states, however, the dormancy period for gift cards is a shorter period of 2 to 3 years (i.e., after 2 years, the issuer of the card is no longer obligated to honor it, so long as the amount is escheated to the state).

Where?  According to the CFPB’s public notice of potential rule making, the agency is specifically concerned with the gift card provisions contained in the Maine and Tennessee Unclaimed Property Acts.  In each of these states, stored value cards are generally deemed abandoned (that is, are subject to being reported and remitted to the state) in two years.

When?  The CFPB is currently soliciting comments from the public before making its decision.  Interested parties can submit comments for consideration within 60 days from the publication of the CFPB’s notice.

Why?  The CFPB’s inquiry underscores the fundamentally different viewpoints of the state and federal agencies when it comes to determining what is in the consumer’s best interests. The state unclaimed property agencies are primarily concerned with taking custody of apparently unused funds as quickly as possible, under the presumption that by taking custody of the property quickly, they increase the likelihood that the consumer will eventually reclaim the funds for the state.

The CFPB, on the other hand, is primarily concerned with making sure that the in the consumer’s gift card funds remain valid in the first place. The federal agency would presumably contend that anything which keeps the card active for a longer period of time serves the consumer best.