Vondjidis v. Hewlett Packard: Sacrificing Good Unclaimed Property Policy In Search of Perfect Compliance?

Transcription

1 Vondjidis v. Hewlett Packard: Sacrificing Good Unclaimed Property Policy In Search of Perfect Compliance? by Kendall L. Houghton and Matthew P. Hedstrom Kendall L. Houghton Introduction Matthew P. Hedstrom Each state has enacted laws addressing unclaimed or abandoned property. Those laws are designed to protect the owners of property who have failed to assert a claim to the property. To provide the owners that protection, the laws require holders of property that has remained unclaimed for a specified statutory period to report and pay over that property to the state. The state becomes the custodian of the unclaimed property and steps into the shoes of the owner. Holders of unclaimed property are required to attempt to contact the property owners and pay over the property to the state, rather than maintain possession or convert the property for the holders own benefit. Hewlett Packard (HP), holding that HP was not entitled to immunity from suit when it transferred the plaintiff s abandoned property over to the state. The pending superior court case raises various issues regarding the duties of holders, including the extent of due diligence required of a holder of unclaimed property; whether a holder can avail itself of state statutory immunity provisions if its due diligence efforts are imperfect; and whether that risk assessment will necessitate changes to a given corporate holder s internal systems and controls. More broadly, Vondjidis raises the question: Have holders risks regarding less-than-perfect unclaimed property compliance just increased dramatically? We contend that, pending the final disposition of Vondjidis, they have. Moreover, the approach articulated in the court of appeal s decision sacrifices good unclaimed property policy that is, the extension of statutory immunity to holders that exercise goodfaith due diligence efforts in search of perfect compliance with due diligence statutes. Perfect compliance is neither an achievable result no holder can implement uniform corporate policies that will satisfy all of the inconsistent due diligence requirements placed on holders by various states nor a goal consistent with the other important policies underlying state unclaimed property laws, such as encouraging unclaimed property compliance through the granting of statutory immunity or indemnification. Have holders risks regarding less-than-perfect unclaimed property compliance just increased dramatically? Recently, in Vondjidis v. Hewlett Packard, 85 Cal. Rptr. 3d 806 (6th App. Dist., Nov. 25, 2008), the California Court of Appeal overturned a superior court s grant of summary judgment in favor of Factual Background of Vondjidis v. Hewlett Packard Foreign Owner/Corporate Employee The plaintiff, Vondjidis, was employed by HP as an engineer at HP s Athens, Greece, office from March 1974 to October Vondjidis lived in Athens at the time. Vondjidis purchased 17 shares of HP stock through HP s employee stock purchase plan. When Vondjidis initially purchased his shares, he provided HP with his Athens home address. State Tax Notes, January 5,

2 Dividend Payments to HP Employees In conformity with HP s corporate policy, HP mailed Vondjidis s dividend checks to the Athens office, which served as an effective proxy for his home address during his term of employment. Corporate policy established that the employee was responsible for providing a new address on termination of employment with HP; if the former employee failed to provide a new address of record for purposes of the dividend checks, the shareholder mailings continued to be sent to the foreign office in which the employee previously worked. In 1978 Vondjidis left HP s employment. In December 1978 HP sent a change of address form to Vondjidis, which Vondjidis failed to return to HP. Owner s Failure to Communicate With HP In August 1979 Vondjidis received the stock dividend check along with a note from an HP Athens office employee that read, Alex, hi. I am sending you the common stock dividend P. Alto sent to my office, and I telexed them to send them directly to your home from now on. So, you will have to go to the bank and cash the check. I (meaning HP) do not need anything else from you. In 1982 Vondjidis received a second note, which requested that he again fill out a change of address form. Vondjidis assumed his wife responded to the note and therefore did not fill out the change of address form. Accordingly, HP s official records continued to reflect that Vondjidis s address was HP s Athens office, in accordance with its defined corporate policies. 1 From 1979 until 1983, Vondjidis did physically receive small dividend checks, which he never cashed. Vondjidis contended that he did not cash the checks because currency regulations made it cumbersome to cash the checks in Greece and it was easier to throw out the checks than go through the trouble of actually cashing them. HP s Athens office closed sometime between 1982 and 1984, at which point Vondjidis did not receive any further communication from HP. At that point, Vondjidis also stopped receiving dividend checks. Similarly, Vondjidis did not try to contact HP at any point after Corporate Unclaimed Property Policies and Procedures Under HP s corporate policies, it considered a shareholder to be lost if multiple mailings went out and returned with unknown address on it. In accordance with state unclaimed property laws, in 1993 HP used an escheatment vendor to transfer abandoned shares to the relevant state. Before HP transferred any stock to a state, HP would retrieve addresses it had on its system and would forward any address that HP had for that person to the escheatment vendor. It was the escheatment vendor s responsibility to send a letter to each of the lost shareholders; in other words, the vendor conducted due diligence efforts on HP s behalf. Procedural History of the Litigation In 1993 HP transferred Vondjidis s unclaimed shares of HP stock to California in accordance with the state s unclaimed property law. In 2001 Vondjidis learned of that transfer. In 2003 Vondjidis sued HP seeking reissuance of the shares; general, special, and punitive damages; and injunctive and other relief. 3 (Independent of this suit, he recovered about $22,000 from the state of California as the rightful owner.) Vondjidis alleged that HP had known his identity and address, but it had failed to exercise due diligence before transferring the shares. HP answered that claim, raising the affirmative defense that Vondjidis s complaint was barred by the immunity provisions of California s Unclaimed Property Law. 4 The superior court granted HP s summary judgment motion on the grounds that HP was immune under Code of Civil Procedure section Vondjidis appealed. On November 25, 2008, the court of appeal reversed the judgment of the trial court, holding that statutory immunity is available under the California Code of Civil Procedure only when there is compliance with title 10 s statutory scheme (the unclaimed property provisions), and that HP failed to establish that it had complied with the statutory scheme. 1 The notes and dividend checks were forwarded to Vondjidis from the Athens office. It appears that HP had different databases with different addresses, as evidenced by the forwarding of the dividend checks and notes to Vondjidis s home address. However, HP s corporate policy was to use the Athens office address for due diligence purposes until a new address was provided to HP in writing. The facts surrounding that issue will likely be made clearer at trial. 2 Vondjidis said that when he failed to receive further dividend checks after 1983 (when the Athens office closed), he assumed that they had worked something more clever out and they would reinvest my money. Between 1983 and 1992, 39 HP dividend checks representing dividend payments for Vondjidis s shares, totaling $265.86, were never cashed. 3 The decision does not discuss what efforts, if any, Vondjidis made to file a claim for uncashed dividends checks with California before bringing suit against HP. 4 HP also answered Vondjidis s claim by asserting the affirmative defense that the claim was barred by the statute of limitations. The superior court, however, rejected HP s claim that Vondjidis s action was barred by the statute of limitations. The court concluded that there were triable material issues of fact as to Vondjidis s state of mind when he stopped receiving communications and when he filed his action in 2003, and whether a reasonable person would have been on notice that his stock had escheated. However, we will not address that interesting aspect of the case in our article. 46 State Tax Notes, January 5, 2009

3 Legal Analysis and Commentary on Vondjidis The specific legal issues on appeal, as they were in the original action, were: first, whether immunity under chapter 3 of title 10 (section 1321) or chapter 7 of title 10 (section 1532) requires compliance with the unclaimed property statutory scheme or whether immunity is absolute, and second, whether HP was entitled to immunity under chapter 3 of title 10 (section 1321) or chapter 7 of title 10 (section 1532). The court of appeal interpreted both Cal. Code Civ. Proc. section 1321 and Cal. Code Civ. Proc. section 1532 as requiring strict compliance with the legislative scheme. Cal. Code Civ. Pro. section 1321 provides that any person delivering money or other property to the Treasurer or Controller under the provisions of this title shall, upon such delivery, be relieved and held harmless by the State and no action shall be maintained against any person who is the holder. 5 Cal. Code Civ. Pro. sections 1532 and 1516 provide that the holder of any interest shall be relieved from all liability only if the association does not know the location of the owner at the end of the three-year period. 6 The court s exercise in statutory interpretation, in concluding that a grant of statutory immunity under both California provisions was predicated on the holder not having any knowledge of the ultimate address of the owner, relied partly on the court s divination of legislative intent. Based on the language of the statute, the court s conclusion may seem justified; however, another California appellate court reviewed the same statutory immunity provisions and concluded that they were not conditional on strict compliance with the due diligence rules: The Legislature s adoption of a rule of absolute immunity is consistent with the purpose of the UPL, which is to give the state rather than the holders of unclaimed property the benefit of its use. [Quoting Douglas Aircraft Co. v. Cranston, 374 P.2d 819 (Cal. 1962).] Without this protection, holders of unclaimed property concerned about lawsuits such as this class action would likely err on the side of retaining rather than delivering unclaimed property to the Controller, thereby depriving the State of the benefit of its use. The Legislature, faced with a choice between absolute immunity (which promotes delivery of unclaimed property to the Controller but provides only limited redress to the owners of the property) and conditional immunity (which would have discouraged delivery A Pinch of SALT but allowed redress), plainly and unambiguously opted for absolute immunity. Harris v. Verizon Communications, 141 Cal. App. 4th 573, 579 (2nd App. Dist., 2006). However, the court in Vondjidis instead opined that because the purpose of unclaimed property law is to protect unknown owners by locating them and restoring property to them, granting absolute immunity would be inapposite to the legislative intent. This analysis tracks that of yet another appellate court, which decided Azure Ltd. v. I-Flow Corp., 163 Cal. App. 4th 303 (4th App. Dist., 2008), review granted, (Aug. 27, 2008). In Azure, a former shareholder alleged that a holder failed to properly transfer shares to California because the holder failed to even try to give notice to the owner. The court held for the shareholder, declining to follow the majority in Harris. The court concluded that a holder has statutory immunity only if plaintiff failed to claim dividends or communicate for three years and defendant did not know [the owner s] location. 7 The existence of one extreme blatant noncompliance does not justify a common-law rule that requires another extreme perfect compliance. We question whether the Vondjidis court s reliance on Azure is justified, given the distinct factual contexts of each case. The court in Azure determined that immunity is not absolute in situations in which a holder has not engaged in due diligence despite having an owner address on record hence, allegedly breaching its fiduciary duty to give [the owner] a fair opportunity to prevent the operation of the unclaimed property law in the first instance. 8 The court was likely concerned with creating a precedent whereby a state immunity provision would immunize reckless transfers of nonescheated shares to the state without notice, thereby removing the incentive for a corporation to honor its fiduciary duty to reunite a stockholder with lost shares. 9 We certainly acknowledge the concern articulated in Azure. However, the existence of one extreme blatant noncompliance does not justify a commonlaw rule that requires another extreme perfect compliance. We would likewise suggest that holders that fail to undertake any due diligence do not satisfy the prerequisites for statutory immunity 5 Cal. Code Civ. Pro. section 1321 (emphasis added). 6 Cal. Code Civ. Pro. section Azure, 163 Cal. App. 4th at Id. 9 Id. at 311. State Tax Notes, January 5,

4 under any set of facts. However, statutory immunity should not be lost for holders that, in good faith, exercise due diligence but nonetheless attain a state of less-than-perfect compliance. Recognizing that good-faith efforts can result in less-than-perfect compliance emphasizes the need for a balanced approach to unclaimed property compliance an approach that would protect those holders that, on balance, deserve protection. That approach also balances the various competing public policies underlying the unclaimed property statutes. Policy Considerations and Practical Questions Raised by the Vondjidis Litigation Owner Responsibility/ Unclean Hands Defense It seems to us that more than a modicum of responsibility rests with the owner to communicate with the holder regarding property a holder is actively trying to return to the owner. Should courts be sympathetic to the claims of an owner who willfully discarded the instruments representing the property interest in question (dividend checks) and failed to complete a change of address form that would have foreclosed the possibility of his property being reported and paid to the state as unclaimed property? Clearly, the owner s conduct contributed to the escheatment and should not be disregarded in the overall analysis of whether the holder exercised due diligence for purposes of statutory indemnification. In instances in which the owner s conduct arguably rises to the level of negligence, there should be a presumption that a holder has engaged in due diligence. The court s failure to address HP s lessthan-perfect compliance avoids a necessary question: Did Vondjidis truly need protection or does the responsibility partly rest with Vondjidis? Is this a situation that can be properly analogized to comparative negligence? Uniform Unclaimed Property Acts Good-Faith Standard for Holder Indemnification Both the 1981 and 1995 Uniform Unclaimed Property acts (1981 Act and 1995 Act, respectively) contain provisions that contemplate the grant of statutory indemnity to a holder that pays or delivers property to the administrator in good faith. [1981 Act, section 20(a); 1995 Act, section 10(b).] Both acts define a payment or delivery to have been made in good faith if the following conditions are met: payment or delivery was made in a reasonable attempt to comply with this [act]; the holder was not then in breach of a fiduciary obligation with respect to the property and had a reasonable basis for believing, based on the facts then known, that the property was presumed abandoned; and there is no showing that the records under which the payment or delivery was made did not meet reasonable commercial standards of practice Act, section 10(a); compare 1981 Act, section 20(f). The California statutory indemnification provisions subject to review in Vondjidis differ from the uniform acts provisions in that there is no articulated good-faith standard for holder attempts to comply with the unclaimed property laws of the state (and in fact, current California provisions are more akin to the uniform acts). 10 Perhaps the case would be easier to resolve if the holder s good-faith attempt to comply with the law had been the standard for a grant of holder indemnification; however, one can easily imagine this litigation focusing on issues such as what constitutes a reasonable attempt to comply (that is, is the HP corporate policy of using a proxy HP office address reasonable after employee terminations?) and whether the records on which the holder relied met reasonable commercial standards of practice. However, both those standards are subjective and contemplate that a holder s action that falls short of perfect compliance or best practices may still form the basis for a good-faith report or payment of deemed-abandoned property by a holder to a state. More than a modicum of responsibility rests with the owner to communicate with the holder regarding property a holder is actively trying to return to the owner. In failing to address the possibility of the owner s own culpability and the possibility that the holder s good-faith efforts satisfied the goals of the unclaimed property law, the court appeared to give no weight to the real difficulties that HP experienced in trying to pay over dividends to Vondjidis, and the fact that both parties actions contributed to the result in the case. The Vondjidis court s approach fails to recognize the compliance burdens placed on holders and the necessary reliance of the state, if it is to realize the policy goal of reuniting property with owners, on holders voluntary compliance. The court should have at least addressed the purpose of immunity as the court did in Harris. 11 One clear purpose of immunity is to protect holders from lawsuits when they are complying with mandatory state unclaimed property 10 See Cal. Code Civ. Pro. section See, generally, Harris, supra. 48 State Tax Notes, January 5, 2009

5 law. The decision in Vondjidis renders adherence to that stated purpose a veritable impossibility in some situations. To require perfect compliance with the statutory scheme makes immunity a nullity because immunity is important when the holder is charged with failing to meet one requirement of the statutory scheme. Therefore, when the holder has complied perfectly with statutory scheme, immunity is arguably necessary only to defend against claims outside the scope of what immunity attempts to prevent. 12 In fact, that is exactly what the court in Azure concluded. The court opined that by requiring perfect compliance by holders, immunity still serves a valuable purpose because it protects holders from claims that they should have done more than unclaimed property law requires. 13 The conclusion that a state immunity provision is still valuable because it protects holders from claims that exceed the scope of statutory requirements, in point of fact, endorses the court s imposition of a perfect compliance requirement but does not really answer the question of why immunity from claims exceeding the statutory requirements would be necessary. For an analysis that considers all elements of the state unclaimed property laws, that concept of perfect compliance must be examined in the context of due diligence requirements placed on holders. Due Diligence: Intersection of Legal Standards and Corporate Records/Practices Most states impose a statutory due diligence requirement on holders. Those statutes generally require some form of notification to be mailed to the apparent owner of the property before it is turned over to the state. 14 Some states do not impose any formal requirements. 15 In the states that do impose a due diligence requirement on holders, due diligence is defined as mailing notice to the last-known address as reflected on the holder s books and records. 16 Even in states that require additional efforts by a holder, due diligence requires only 12 For example, a holder that complies perfectly with the statutory scheme will not need immunity because the owner will not have a cause of action the holder did not violate the unclaimed property law. In that case, immunity would be useful only to protect holders from breach of contract claims or claims that the holder breached a fiduciary duty. 13 Azure, supra note7at See, e.g., Colo. Rev. Stat. section (5)(a)-(c). 15 For example, Texas unclaimed property law requires only that holders make reasonable efforts to locate owners early in the abandonment period, but it has no formal requirements. Texas Prop. Code See, e.g., Ga. Code Ann. section ; Va. Code Ann. A Pinch of SALT making a good-faith effort or reasonable diligence in accordance with good business practices to locate the owner. 17 The court in Vondjidis did not focus on whether HP performed the requisite amount of due diligence per se, but the decision throws doubt on the generally held belief that less-than-perfect compliance with a statutory scheme will nevertheless be sufficient in most circumstances to shield holders from potential liability. To what extent must holders look beyond their books and records to seek out the address of an owner? Do holders have to keep multiple addresses on file or within their computer systems to ensure compliance with the statutory requirements? As in Vondjidis, does a holder s historical knowledge of one particular address preclude a mailing to a different address on file from satisfying the due diligence requirements if the address is shown to be incorrect? Taken to a logical extreme, holders might be required by some courts to retain every address an employee provides in the event that the employee is later found to be the apparent owner of property on the holder s books. The administrative procedures would be burdensome and in some cases, depending on the computer systems involved, impossible. Holders computer systems, documentation, and other information sources are rarely, if ever, completely integrated. Finding an owner s address in one system does not mean it is practically available for unclaimed property compliance purposes. To impose such an integration requirement would be prohibitively expensive and likely suffer its own unique failures. We are not suggesting that willful blindness will satisfy the due diligence requirements. Certainly, a practice in which a holder knows of the right address but chooses instead to mail the property or the notification to an address where the holder knows the owner no longer resides should not satisfy due diligence requirements. However, when the holder makes a good-faith attempt, based on workable and established corporate procedures, to reunite an owner with property, those efforts should satisfy due diligence requirements for purposes of obtaining statutory indemnification, even if the efforts do not comport exactly with the statutory scheme. A Perfectly Good Approach Balances Competing Considerations and Policies If the strict reading of the immunity statute adopted by the Vondjidis court were adopted, as opposed to a more balanced approach, there is the potential for increased compliance burdens to be section (emphasis added). 17 See Ore. Rev. Stat. sections ; Ore. Admin. R. section ; Mo. Ann. Stat. section State Tax Notes, January 5,

6 placed on holders. Holders would have to consider whether they have knowledge of an owner s address to ensure perfect compliance with the statute controlling remittance of deemed-abandoned property to the state. Vondjidis supports an inquiry into what constitutes knowledge for purposes of determining whether the location of the owner of property is truly unknown. Though Vondjidis addressed a situation in which the holder arguably had actual knowledge of the owner s address, it is not difficult to envision a court suggesting that a holder has constructive knowledge of that address, in some circumstances. If a holder could theoretically piece together information to ascertain the owner s address, will that address be deemed to have been known by the holder? For example, if the holder receives correspondence that contains a different address than is reflected on the holder s books and records for unclaimed property purposes, such as in connection with healthcare benefits or even general customer service inquires, is a holder deemed to have constructive knowledge that the alternative address is the owner s last-known address? As Vondjidis now stands, holders may potentially be subject to a one-two punch of state unclaimed property audits and claims by plaintiffs lawyers. With increased state enforcement and the potential for private lawsuits seeking triple or punitive damages (for example, regarding claims raised under consumer protection, fraud, and other statutes), it is particularly important, in considering the requirements placed on holders, to consider what is a fair or equitable result. We contend that fairness can more regularly be achieved when there is a balancing of the relative burdens and responsibilities placed on all parties involved (holder, owner, and claimant state). Most states have legislated an equitable approach in which statutory due diligence requires reasonable or ordinary efforts to locate the owner of property and to maintain commercially reasonable records that form the basis for the due diligence efforts. That approach recognizes that holders can be required to do only so much in situations in which the owner has become lost. Similarly, that approach accommodates holders employment of workable, efficient, and cost-effective procedures that sometimes represent less-thanperfect compliance systems. To impose additional requirements would not only deviate from the statutory requirements in many states, but also would often lead to inequitable results, including the opening of the door to additional liability based on these types of lawsuits. (Un)Conclusion: Unsettled, and Unsettling As Vondjidis now stands, holders may potentially be subject to a one-two punch of state unclaimed property audits and claims by plaintiffs lawyers. 18 If holders are to avoid falling prey to claims asserted by plaintiffs attorneys, often on behalf of a putative class of owners, that represent potentially significant additional liability regarding the same items of property that have been reported to a state, it is imperative to sensitize courts to the interests of each party involved. That requires ensuring that courts recognize the overwhelming obligations and singular burden placed on holders, and the necessary extension of statutory indemnification to holders that make good-faith efforts to comply with state statutes designed to return property to lost owners. Otherwise, lawsuits like Vondjidis may lead us down the proverbial slippery slope. Worst-case scenario: Plaintiffs lawyers file lawsuits (class actions when possible) to attack corporations that in good faith attempt to comply, seeking out those corporations that are presumed to have deep pockets. Although we do not contend that all class actions or plaintiffs lawsuits are inherently bad when there exists a culpable party, lawsuits in this context often lack that necessary component. What makes plaintiffs lawsuits or class actions fundamentally unfair in this context is that corporations generally are acting in good faith to comply with a regime they are required to be a part of, based on the nature of their business. That is to say, in conducting their business, corporations often find themselves in possession of abandoned property that by law they must turn over to the state. In an already expensive and burdensome game of compliance, it is imperative that courts adopt a balanced approach an approach that recognizes the overwhelming obligations placed on holders and the need to extend 18 It is not as if that concern is unfounded or without precedent. In recent years, a veritable cottage industry has evolved whereby plaintiffs lawyers have sued retailers under state qui tam statutes, alleging sales and use taxes were either overcollected or undercollected. See, e.g., Larrieu et al. v. Wal-Mart Stores, Inc., 872 So.2d 1157 (La. Ct. App. 1st Cir. 2004) (class action lawsuit in which plaintiffs alleged that Walmart and other retailers overcollected sales tax on prepaid telephone calling cards); Ackerman et al. v. International Business Machines, 337 N.W.2d 486 (Iowa 1983) (class action lawsuit in which plaintiffs alleged IBM illegally overcollected sales tax on two machine service agreements in violation of law and contrary to contract provisions). Indeed, the Harris case discussed in Vondjidis involved a class action suit against GTE regarding shares of stock that GTE, as holder, had reported to California as unclaimed property. 50 State Tax Notes, January 5, 2009

7 statutory indemnification to holders that make good-faith efforts to comply. A balanced approach is the only approach that can consistently lead to fair and equitable results, while respecting the important policies underlying state unclaimed property laws. Kendall L. Houghton is a partner and Matthew P. Hedstrom is an associate with Sutherland s State and Local Tax Practice. Sutherland s SALT Practice is composed of 17 attorneys who focus on planning and controversy associated with income, franchise, sales and use, unclaimed property, and property tax matters. Sutherland s SALT Practice also monitors and comments on state tax legislative and policy efforts. State Tax Notes, January 5,