Who s Suing Me Now? The Rise of Qui Tam Lawsuits Under the Unclaimed Property Laws

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1 Who s Suing Me Now? The Rise of Qui Tam Lawsuits Under the Unclaimed Property Laws David Finkelson McGuireWoods LLP Michael Rato McElroy, Deutsch, Mulvaney & Carpenter LLP 1

2 UPPO Presentation Disclaimer Use of the Unclaimed Property Professionals Organization, Inc., (UPPO) name or copyrighted materials in this presentation does not constitute an endorsement by UPPO of a member, vendor, product or service. The content represents the opinions of the author and not necessarily those of UPPO. This information is not intended as legal advice and should not be used to replace the advice of legal counsel. 2

3 UPPO Antitrust UPPO has a policy of strict compliance with federal antitrust laws. UPPO members and/or meeting attendees cannot come to understandings, make agreements, or otherwise concur on positions or activities that in any way tend to raise, lower or stabilize prices or fees. Members and/or attendees can discuss pricing models, methods, systems, and applications, as well as certain cost matters that do not lead to an agreement or consensus on prices or fees to be charged. However, there can be no discussion as to what constitutes a reasonable, fair or appropriate price or fee to charge for any service or product. Information may be presented with regard to historical pricing activities so long as such information is general in nature and does not include data on current prices or fees being charged in any trade area. Any discussion of current or future prices, fees, discounting, and other terms and conditions of sale, which may lead to an agreement or consensus on prices or fees to be charged, is strictly prohibited. 3

4 CPE Credit CPE credit is available at this conference. However, NASBA rules require proof you attended the sessions. For UPPO to provide verification of attendance, you MUST be scanned in AND out of each session to be eligible to receive credit(s). Please see the room monitor(s) at the back of room to have your name badge scanned. 4

5 Agenda Overview of Qui Tam Lawsuits Purpose & History Procedure Application of Qui Tam to Unclaimed Property Recent Qui Tam Activity in Life Insurance Arena Historical Qui Tam Cases Defense & Avoidance Strategies Potential Defenses to Qui Tam Actions Potential Legislative Solutions General Avoidance Guidance 5

6 Qui Tam Lawsuits - Overview Qui What? Short for qui tam pro domino rege quam pro se ipso in hac parte sequitur In English: "who as much for [our] lord the king as for himself in this action pursues" In (Understandable) English: A lawsuit brought by a private citizen, in the place of the government, to address another s failure to comply with some legal obligation 6

7 Qui Tam Lawsuits Purpose & History Why are Qui Tam actions allowed? Encourage citizens to aid with law enforcement efforts, through partial awards Encourage private parties to comply with legal obligations through additional potential for private citizen action 7

8 Qui Tam Lawsuits Purpose & History History: Used as early as 13 th century England to enforce laws Adopted by the first Continental Congress to protect whistleblowers who reported fraud or misconduct 1963 False Claims Act ( Lincoln s Law ) used to uncover and punish price gouging in the sale of goods and services to the government during the Civil War 8

9 Qui Tam Lawsuits - Procedure Private plaintiff brings a lawsuit under seal Usually called a relator or informer State AG generally has a 60 day period to investigate, after which time the state may decide to intervene or not If AG does not intervene, private plaintiff may continue the litigation 9

10 Qui Tam Lawsuits - Procedure Basis of claims Defendant knowingly presents a false or fraudulent claim for payment to the State; Defraud the state by making a false claim for money or property from the state Knowingly makes a false record to avoid or decrease an obligation to make payment to the state 10

11 Qui Tam Lawsuits - Procedure Limitations Action cannot be based on an action or administrative proceeding to which the State is already a party Action cannot be based on public disclosure of allegations by government, law enforcement, or news media Action cannot be brought by former public employee based upon knowledge gained in course of his or her duties 11

12 Qui Tam Lawsuits - Damages Qui Tam Damages Can be Substantial Private plaintiff entitled to 15% to 30% of award Some acts provide for treble (i.e., triple) damages for each false claim or assertion Some acts also provide for civil penalties to be assessed in addition to damages under the act 12

13 Application to Unclaimed Property Potential bases for unclaimed property qui tam actions: Unbilled vendor payables Overdue deposits Escrow funds Gift card / gift certificate funds Credit balances 13

14 Recent Qui Tam Activity in Life Insurance Arena Cases brought by Total Asset Recovery Services, a Michigan asset recovery company Based upon failure to turn over unclaimed life insurance proceeds Florida Case Pending Illinois Voluntarily Dismissed by Plaintiff Minnesota Dismissed by the Court 14

15 Bank of America: The McCann Cases Allegations: BOA, as clearinghouse, failed to properly process checks and escheat credit balances Florida: Qui tam claim dismissed. See 444 F. Supp. 2d 1227 (N.D. Fla. 2006); State of Florida, et al. v. Bank of America Corp., No. 05 CA 1537 (Fla. Cir. Ct. March 3, 2006). California: Qui tam claim dismissed because relators failed to specifically plead a certain and liquidated obligation. See 191 Cal. App. 4th 897 (2011). 15

16 Bank of America: The Stull Case Allegations: BOA failed to escheat funds that were deposited to pay California municipal bonds California: Settled in 1998 for $187.5 million, with relator receiving $25 million. See Bank of America v. State of California, No. A118436, 2009 Cal. App. Unpub. LEXIS 215 (Cal. Ct. App. Jan. 12, 2009). 16

17 Telecommunications Carriers: The Grayson Case Allegations: Carrier defendants did not report breakage (unused balances) on prepaid calling cards District of Columbia: Qui tam claim dismissed under the public disclosure bar. See 15 A.3d 219 (D.C. Ct. App. 2011). 17

18 The SourceGas Case: Ex-Employee Whistleblower Allegations: Company knowingly failed to report unclaimed property liabilities to state; Relator was former tax manager of company. Delaware: Court held that Defendant s change of account name from Unclaimed Property Liability to Converted Balance from Dec was an attempt to conceal property from the state 18

19 Potential Defenses to Qui Tam Actions Pendency of ongoing proceeding relating to same subject matter (e.g., unclaimed property audit) Complaint is based on publicly disclosed allegations for which qui tam plaintiff is not original source No obligation to escheat Failure to allege specific false claim 19

20 Potential Legislative Solutions Roughly 30 states have False Claims Acts, 10 of which are limited to Medicaid-related claims. Of the roughly 20 remaining state FCAs: IL, IN, RI: Bar income-tax-related FCA claims TN, CA, DC, GA, MA, NM, MN, MT, NC, NJ, OK, VA: Bar all tax-related FCA claims Illinois: Council on State Taxation recently proposed reforms to exclude unclaimed property claims under Illinois FCA, as analogue to tax-related exclusions 20

21 General Avoidance Guidance Establish and document unclaimed property policies and procedures Ensure annual unclaimed property reporting compliance Consider voluntary disclosure agreements Use audit settlement agreement language to your advantage 21

22 Contact Information David Finkelson McGuireWoods LLP One James Center 901 East Cary Street Richmond, VA (804) Michael Rato McElroy, Deutsch, Mulvaney & Carpenter LLP 1300 Mt. Kemble Avenue Morristown, NJ (973) Blog: 22

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