IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE STATE OF DELAWARE,

Plaintiff,
ex rel.

WILLIAM SEAN FRENCH,

V.

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Plaintiff-Relator, ) C.A. No. N13C-06-289 PRW CCLD
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cARD COMPLIANT, LLC, er al., )

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Defendants.

Submitted: January 16, 2018
Decided: April 30, 2018
Withdrawn and Reissued With Clarifications: August 29, 2018

M`EMORANDUM OPlNION AND ORI)ER
Upon Defena’ants ’ Motionfor Summary Jua'gment,
DENIED.

Thornas E. Brown, Esquire, Edward K. Black, Esquire (argued), Stephen G.
MacDonald, Esquire, Deputy Attomeys General, Delaware Department of Justice,
Wilmington, Delaware, Attorneys for the State of Delaware.

Stuart M. Grant, Esquire, Mary S. Thomas, Esquire (argued), Laina M. Herbert,
Esquire, Vivek Upadhya, Esquire, Grant & Eisenhofer P.A., Wilmington, Delaware,
Attorneys for Plaintiff-Relator William Sean French.

Kermeth J. Nachbar, Esquire, Michael Houghton, Esquire, Matthew R. Clark,
Esquire, Bamaby Grzaslewicz, Esquire, Morris, Nichols, Arsht & Tunnell LLP,
Wilrnington, DE, Ethan D. Millar, Esquire, Of Counsel (pro hac vice), J. Andrew
Howard, Esquire, Of Counsel (pro hac vice), Alston & Bird LLP, Los Angeles, CA,

Williarn R. Mitchelson, Jr., Esquire, Of Counsel (pro hac vice)(argued), Jason D.
Popp, Esquire, Of Counsel (pro hac vice), Alston & Bird LLP, Atlanta, GA,
Attorneys for Defendants Apple American Group LLC, CBC Restaurant Corp., Il
Fornaio (America) Corporation, Noodles & Company, and ShutterHy, Inc.

Stephen E. Jenkins, Esquire, Catherine A. Gaul, Esquire, Ashby & Geddes,
Wilmington, Delaware, Richard M. Zuckerman, Esquire, Of Counsel (pro hac
vice)(argued), Sean Cenawood, Esquire, Of Counsel (pro hac vice), Kiran Patel,
Esquire, Of Counsel (pro hac vice), Catharine Luo, Esquire, Of Counsel (pro hac
vice), Dentons US LLP, NeW York, NY, Attorneys for Defendants Card Cornpliant,
LLC, Cardfact II, Inc., Cardfact III, Inc., Cardfact IV, Inc., Cardfact V, Inc., Cardfact
VII, Inc., Cardfact VIII, Inc., Cardfact IX, Inc., Cardfact XI, Inc., Cardfact XIV,
Inc., Cardfact XV, Inc., Cardfact XVII, Inc., Cardfact XVIII, Inc., Cardfact XXX,
Inc., CARDCO CXVI, Inc., and CARDCO CCCIII, Inc.

Colrn F. Connolly, Esquire, Jody C. Barillare, Esquire, Morgan, LeWiS & Bockius
LLP, Wilmington, Delaware, Gregory T. Parks, Esquire, Of Counsel (pro hac vice),
Ezra D. Church, Esquire, Of Counsel (pro hac vice), Courtney McCormick, Esquire,
Of Counsel (pro hac vice), Morgan Lewis & Bockius LLP, Philadelphia, PA,
Attorneys for Defendants Hanna Anderson, LLC, Nash-Finch Company, Pamida
Stores Operating Co., LLC and Shopko Stores Operating Co., LLC.

David S. Eagle, Esquire, Michael W. Yurkewicz, Esquire, Klehr, Harrison Harvey
Branzburg LLP, Wilmington, Delaware, Martin I. Einstein, Esquire, Of Counsel
(pro hac vice), David SWetnam-Burland, Esquire, Of Counsel (pro hac vice), Stacy
O. Stitham, Esquire, Of Counsel (pro hac vice), Brann & Isaacson, Lewiston, ME,
Attorneys for Defendant Overstock.com, Inc.

Brian M. Rostocki, Esquire, Benjarnin P. Chapple, Esquire, Reed Smith LLP,
Wilmington, Delaware, Michael J. Wynne, Esquire, Of Counsel (pro hac vice),
David A. Ramrnelt, Esquire, Of Counsel (pro hac vice), Reed Smith LLP, Chicago,
IL, Attorneys for Defendant Einstein Noah Restaurant Group, Inc.

Brian E. Farnan, Esquire, Farnan LLP, Wilrnington, Delaware, ShaWn J. Organ,
Esquire, Of Counsel (pro hac vice), Joshua M. Feasel, Esquire, Of Counsel (pro hac
vice), Organ Cole LLP, Columbus, OH, Attorneys for Defendant Vacation

Properties United Ltd.

WALLACE, J.

I. INTRODUCTION '

Plaintiff-Relator William Sean French (“French”) and the State of Delaware
(the “State” or “Delaware,” and together with French, the “Plaintiffs”) brought this
action pursuant to Delaware’s False Claims and Reporting Act (“DFCRA”) alleging
that CardFact, Ltd. (“CardFact”), its successor-in-interest Card Compliant LLC
(“Card Compliant”), and the Retailers2 entered into a contractual scheme designed
to deprive Delaware of hundreds of millions of dollars to which it was lawfully
entitled under Delaware’s Abandoned and Unclaimed Property Law (“DUPL” or the

“Escheat Law”).3 The abandoned property at issue in this case are the unredeemed

 

l The parties to and the subject ofthis qui lam action have been set forth in the Court’s prior
opinions and orders and will not now be fully recounted See, e.g., State ex rel. French v. Card
Compliant LLC, et. al., 2015 WL 11051006 (Del. Super. Ct. Nov. 23, 2015) (“Cara' Compliant
I”); State ex rel. French v. Card Compliant LLC, et. al., 2017 WL 1483523 (Del. Super. Ct. Apr.
21, 2017) (“Cara’ Compliant II”). The Court will instead concentrate here on the factual and
procedural background necessary to the resolution of this discrete summary judgment motion.

2 The remaining defendants in this case fall into three groups: (l) CardFact, including Card
Compliant and the fifteen non-Delaware legal corporations created by and affiliated with CardFact
and Card Compliant, hereinafter collectively referred to as “the Card Companies”); (2) twelve
Delaware-incorporated retailers that entered into Card Services Agreements (“CSAS”) with the
Card Companies including: (i) Apple American Group, LLC (“AAG”); (ii) CBC Restaurant Corp.
(“CBC”); (iii) Einstein Noah Restaurant Group, Inc. (“ENRG”); (iv) Hanna Andersson, LLC
(“Hanna Andersson”); (v) ll Fornaio (America) Corporation (“Il Fornaio”); (vi) Nash-Finch
Company (“Nash-Finch”); (vii) Noodles & Company (“Noodles”); (viii) Overstock.com, Inc.
(“Overstock”); (ix) Pamida Stores Operating Co., LLC (“Pamida”); (x) Shopko Stores Operating
Co., LLC (“Shopko”); (xi) Shutterfly, Inc. (“Shutterfly”); and (xii) Skip Barber Racng School,
LLC (“Skip Barber”), (i) to (xii) of which are collectively referred to herein as the “Retailers”; and
(3) Vacation Properties United Ltd., formerly known as CardFact, Ltd. (“Vacation Properties”).
The Card Companies, the Retailers and Vacation Properties are collectively referred to herein as
the “Defendants.” This action has been stayed with respect to Skip Barber due to its bankruptcy
filing.

3 See Compl. 11 1, Stale ex rel. French v. Card Compliant LLC, C.A. No. Nl3C-06-289
_1_

balances of gift cards issued by the Retailers to its customers for goods and services
at their respective places of business.

Under DUPL’s Sections 1199 and 1201, “holders”4 of abandoned property
must file a report of such property with the State and must pay or deliver to the State
Escheator all property specified in that report. Plaintiffs assert that Defendants
knowingly and intentionally attempted to circumvent this requirement with respect
to gift cards by creating “shell” companies in jurisdictions like Ohio and Florida
where unredeemed balances on gift cards are not subject to state escheat. A Card
Company and a Retailer would then “issue” gift cards from the non-Delaware entity
or contractually assign the Retailer’s existing obligations to its creditors (i.e.,
cardholding retail customers) to a “shell” company pursuant to a Card Services
Agreement (“CSA”) so that the Retailer “ceased” to be the “holder” of the
obligation. Plaintiffs contend that such a CSA was a sham because the property was
never in fact transferred to the “shell” company and the parties otherwise failed to

adhere to the CSA’s other terms.5

 

PRW CCLD (Del. Super. Ct. June 28, 2013) (D.I. 1); DEL. CODE ANN. tit. 6, §§ 1201-1211 (2012)
(Delaware False Claims and Reporting Act) [hereinafter “DFCRA”]; DEL. CODE ANN. tit. 12, §§
1130-1190 (2012) (Delaware’s Unclaimed Property Law) [hereinafter “DUPL”].

4 Under Section § 1198(7) of DUPL, “holder” means “any person having possession,
custody or control of the property of another person . . . .”

5 The “shell” companies to Which Plaintiffs refer to in their pleadings are the non-Delaware
Card Companies and are commonly referred to in the abandoned property industry as “giftcos.”
Under “giftco” planning structures, a Delaware-incorporated retailer forms a subsidiary single-

_2_

Defendants argue that the assignments to the non-Delaware entities were valid
and enforceable and therefore the Retailers had no obligation to pay the value of the
unredeemed gift cards to Delaware under DUPL, Nor, they say, could their actions
constitute fraud under the DFCRA since their view of their obligations was
“objectively reasonable” as Delaware had issued no authoritative guidance to the
contrary. Defendants further claim that the reasonableness of their position is
bolstered by the fact that Delaware consistently approved such gift card structures
in audits and voluntary disclosure agreement (“VDA”) proceedings with the
Delaware Department of Finance.

At the conclusion of factual discovery, remaining Defendants collectively
brought this Motion for Summary Judgment (the “Motion”) seeking the dismissal of
all claims. For the reasons set forth herein, that Motion is DENIED.

II. PROCEDURAL HISTORY

In June 2013, French filed a qui tam complaint asserting claims against the
Defendants under §§ 1201(a)(4) and (a)(7) of the DFCRA. Within a month,
Delaware moved to intervene. The Court granted the State’s motion and the
complaint was unsealed. The case was then removed to federal court. There,

Defendants moved to dismiss. But before that motion was addressed, the case was

 

purpose entity-a “giftco”_to issue its gift cards and to bear any liabilities associated with the
cards. That retailer’s giftco is domiciled in some state that exempts gift card liabilities from
escheat. The retailer then contracts its giftco to sell and redeem its gift cards.

_3_

sent back to this Court. Defendants were granted leave to refile their motion to
dismiss here. In 2015, Defendants’ dismissal motion was granted, in part, and
denied, in part, by a predecessor judge of this Court.6

In 2016, five Defendants moved to dismiss or, in the alternative, for summary
judgment alleging that the Court lacked subject matter jurisdiction due to the
administrative proceedings bar found in 6 Del. C. §l206(b).7 After the voluntary
dismissal of two of the moving Defendants, the Court, last year, granted summary
judgment for the remaining three.8

The now-remaining Defendants filed this joint l\/Iotion for Summary

Judgment. The Court has heard argument and allowed supplemental briefing

thereon.

 

6 In Card Compliant 1, Defendants’ Motion to Dismiss was granted with respect to all claims
asserted under 6 Del. C. § 1201(a)(4), but denied with respect to all claims asserted under 6 Del.
C. § 1201(a)(7).

7 All parties agreed that the version of the DFCRA’s Administrative Proceedings Bar extant
from June 30, 2000, to July 23, 2013, was applicable here. Six Del. C. § 1206(b) then provided
that “[i]n no event may a party bring an action under this chapter which is substantially based upon
allegations or transactions which are the subject of a civil suit or an administrative proceeding in
which the Government is already a party.” DEL. CODE ANN. tit. 6, § 1206(b) (2012).

8 In Card Compliant 11, the Court dismissed claims against Ralph Lauren Corp., Ruth’s

Hospitality Group, Inc. and Shell Oil Co. On August l6, 2017, Ulta Salon, Cosmetics &
Fragrance, Inc. was voluntarily dismissed from the case.

_4_

III. FACTUAL BACKGROUND

CardFact was formed in the State of Ohio in 2003. French is a resident of
Columbus, Ohio, a former employee of CardFact and the brother-in-law of
CardFact’s founder, Ted Ziegler (“Ziegler”). CardFact’s principle business was
providing card services to companies incorporated in Delaware and other states that
require that the unredeemed value of gift cards escheat to the state.9 In order to
entice the Retailers to enter into the CSAs with the Card Companies, CardF act and
Card Compliant promised the Retailers in its marketing materials that they would
not have to change anything about the way the Retailers were running their gift card
programs. Under Defendants’ giftco structure, the Retailers would continue to issue
and redeem their gift cards and retain the possession, custody and control of the
value of the unredeemed gift cards.10

After Ziegler sold CardFact to its competitor Card Compliant in 2009, French
took a job at Card Compliant, “providing customers with ‘legislative updates’
regarding escheat law as well as ‘educating’ Card Compliant clients about the

company’s ‘product portfolio.”’ll When French left Card Compliant, he provided

 

9 Compl. jj 14.

10 See, e.g., Exhibits 12, 13 and 14 of Pl.’s Prin. Op. Br. in Supp. of their l\/Iot. for Summ. J.
(hereinafter “Pl.’s Prin. Op. Br.”).

" Defs.’ Prin. Op. Br. in Supp. of their l\/Iot. for Summ. J. at 30 (hereinafter “Defs.’ Prin. Op.
Br.”).

_5_

his new employer with a list of Card Compliant’s clients, including the Retailers
named in this case.12
At issue in this case are CSAs entered into between the non-Delaware Card
Companies and the Delaware-incorporated and/or -organized Retailers.13 Under the
CSAs, the Card Companies began issuing gift cards for the Retailers and were
assigned the unredeemed gift card balances that had not yet entered dormancy.'4
Although the terms of the CSAs were revised slightly over the years and modified
to accommodate specific Retailers, the CSAs entered into between the Card
Companies and the Retailers contain the same fundamental terms. Each CSA states,
in relevant part:
0 CardFact shall manufacture and deliver, or shall
instruct, or may authorize [Client] to directly
instruct applicable third-party manufacturers of the
Cards to manufacture and deliver, the Cards
pursuant to the Orders.
¢ [Client] agrees to permit CardFact to market the
cards in [Client’s] stores and otherwise related

venues with the consent of the [Client] . . . and
CardFact agrees to . . . so market, the Cards . . .

 

l2 [d
13 Defs.’ Prin. Op. Br. at l.

14 Generally speaking, under Section § 1198(9)(a) of DUPL, a gift card becomes dormant
when, for a period of five years, “an owner has ceased, failed, or neglected to exercise dominion
or control over property or to assert a right of ownership or possession or to make presentment and
demand for payment and satisfaction . . . .”

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0 All cards shall clearly state that CardFact is the
issuer of the Card . . . .

0 During the terms of this Agreement, CardFact shall
be liable to the Cardholders for all unredeemed
Cards, and obligated to satisfy the debts presented
by said Cards. It is the intention of the Parties that
CardFact is the holder of any unclaimed property
with respect to Cards issued during the Term of this
Agreement and any now existing Cards issued prior
to the date of this Agreement with respect to which
no statutory dormancy period has run.

A fair reading of the record could cause one to question whether the parties
complied with any of these foregoing terms.15
IV. STANDARD OF REVIEW
This Court’s Civil Rule 56 permits summary judgment upon a showing “that
there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.”16 Summary judgment will not be granted if there is

a material fact in dispute or if “it seems desirable to inquire thoroughly into [the

”'7 In considering

facts] to clarify the application of the law to the circumstances
the motion, “[a]ll facts and reasonable inferences must be considered in a light most

favorable to the non-moving party.”'8 The moving party bears the burden of

 

'5 See, e.g., Exhibit 15 of Pls.’ Prin. Op. Br. at 74-75
"’ SUPER. CT. Clv. R. 56(0).
'7 Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).

18 Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986).
_7_

establishing the non-existence of any material issue of fact; upon such a showing the
non-moving party must then establish that a genuine issue of material fact exists.19
If the matter depends to any material extent upon a determination of
credibility, summary judgment is inappropriate20 And generally, “trial courts
should act . . . with caution in granting summary judgment . . . [and] the trial court
may . . . deny summary judgment in a case where there is reason to believe that the
better course would be to proceed to a full trial.”21
After the Court issued its initial summary judgment decision on these motions,
Defendants sought “reargument” because, in their view, the Court failed to address
certain of their legal arguments But the Court considers Defendants’ motion,
instead, one asking the Court to clarify its disposition of their remaining mostly
superficial and underdeveloped arguments. “A motion for clarification may be

granted where the meaning of what the Court has written is unclear.”22 Procedurally,

a motion for clarification is treated as a motion for reargument23 The Court’s review

 

19 JaCkSOl'l V. Ml'nn€l”, 2013 WL 4538321, at *l (Del. Aug. 23, 20l3).
20 C€I”bel”us Il'lt’l, Ltd. V. ApOllG Mgml‘., L.P., 794 A.2d ll4l, 1150 (Del. 2002).
21 Id. (quoting Ana'erson v. Liberly Lobby Inc., 477 U.S. 242, 225 (1986)).

22 New Castle County v. Pl`ke Creek Recreatz'onal Services, 2013 WL 6904387, at *2 (Del.
Ch. Dec. 30, 2013) (quoting Naughlfy Monkey LLC v. MarineMax Northeast LLC, 2011 WL
684626, at *l (Del Ch. Feb. 17, 2011) which was interpreting the Court of Chancery’s
substantively identical rule governing reargument and clarification motions)).

23 SUPER. CT. CIV. R. 59(e); Pike Creek Recreational Servl'ces, 2013 WL 6904387, at *2.
_8_

is “limited to consideration of the record,”24 meaning the Court may not consider
issues raised for the first time in a motion for clarification or reargument.25 Here,
the Court clarifies-via integration with its original opinion-its disposition of the
remaining Defendants’ pendant arguments as they may affect the looming trial of
this case.26
V. DISCUSSION

Defendants collectively assert a number of legal arguments in support of their
l\/Iotion. In addition, certain Defendants assert individual grounds in support of their
l\/Iotion. As an initial matter, the Court will address the arguments applicable to all
Defendants, followed by one remaining Retailer Defendant’s individual argument.27

A. DFCRA’s Scienter Requirement Does Not Readily Lend
to the Grant of Summary Judgment

Defendants argue that the undisputed facts demonstrate that the Retailers had

no legal obligation to pay the unredeemed balances on gift cards issued by and

 

24 Pike Creek Recreatz`onal Servz'ces, 2013 WL 6904387, at *2.
25 Pike Creek Recreational Services, 2013 WL 6904387, at *2.

26 The Court has been notified that the only remaining Defendant in this case is Retailer
Overstock. See D.I. 929 (Plaintiffs’ notice of agreements to settle all remaining claims against all
remaining Defendants but Overstock).

27 See n.26, supra.

assigned to the Card Companies and that Plaintiffs cannot, as a matter of law,
establish a DFCRA fraud claim.
The DFCRA’s Section 1201(a)(7) imposes liability upon anyone who
knowingly makes, uses, or causes to be made or used, a
false record or statement to conceal, avoid, or decrease an
obligation to pay or transmit money or property to the
Government . . .28
The statute defines “knowingly” as having “actual knowledge of the information; . .
. [acting] in deliberate ignorance of the truth or falsity of the information; or . . .
[acting] in reckless disregard of the truth or falsity of the information.” 29 lt further
provides that “no proof of specific intent to defraud is required.”30
Defendants try to convert the typically “fact-intensive inquiry” required to

prove scienter in a false claims action into a legal question capable of resolution at

the summary judgment stage.31 The Court can’t do so here. Defendants’ subjective

 

28 DEL. CODE ANN. tit. 6, § 1201(a)(7) (2012). Because French’s Complaint was filed on June
28, 2013, the Court here cites the relevant substantive language of this statutory provision that
existed from June 30, 2000, to July 23, 2013.

29 DEL. CODE ANN. tit. 6, § 1202(3) (2012). This definition has not changed since the
DFCRA’s first enactment in June 30, 2000.

30 Ia'.

31 United States v. Quicken Loans lnc., 239 F. Supp. 3d 1014, 1025 (E.D. l\/Iich. (2017)
(quoting United States ex. rel. K&R Ltd. P ’Ship v. Mass. Hous. Fin. Agency, 456 F. Supp. 2d 46,
61 (D.D.C. 2006)); United States ex. rel. McCready v. Columbus/HCA Healthcare Corp., 251 F.
Supp. 2d 114, 120 (D.D.C. 2003) (scienter under the False Claims Act is a “fact-intensive

inquiry”).

_1()_

beliefs on the validity of the giftco structure remain at issue and the record contains
numerous disputed factual issues that preclude resolution of Defendants’ scienter on
summary judgment.32

As this Court has observed earlier, case law on the federal False Claims Act,
the DFCRA’s federal analogue, is informative when interpreting our state false
claims statute.33 And under that federal case law generally, “[t]he issue of whether
[a] Defendant[’]s[] interpretation . . . negates scienter c[an] not be determined as a
pure issue of law” so, instead, a “Relator is entitled to develop evidence of scienter
at trial.”34 Courts have been “lenient in allowing scienter issues to withstand
summary judgment based on fairly tenuous inferences because such issues are

appropriate for resolution by the trier of fact.”35 This Court must decline to supplant

 

32 See, e.g., Exhibit A to Pls.’ Prin. Op. Br.

33 See Card Compliant II, 2017 WL 1483523, at *10 (noting that federal decisions on the
False Claims Act, “[t]he federal analogue to the DFCRA[,] is informative when deriving the proper
definition of ‘administrative proceeding’ under our statute”); Card Complaint l, 2015 WL
11051006, at *6 (“Delaware authority interpreting the DFCRA is scant. Since the DFCRA is
modeled after the federal False Claims Act, the court will look to federal case law for guidance.”)
(internal citations omitted). See also State ex rel. Higgins v. SourceGas, LLC, 2012 WL 1721783,
at *4 (Del. Super. Ct. May 15, 2012); State Dep’l ofLabor - Div. of Unemp 't Ins. v, Pasquale,
2015 WL 5461540, at *3 (Del. Super. Ct. Sept. 17, 2015).

34 United States ex. rel. Colqul`tt v. Abbott Laboratories, et al, 2016 WL 3571329, at *2 (N.D.
Tex. Mar. 8, 2016); see also United States ex. rel. Wuestenhoefer v. Jej}’ereson, 105 F. Supp. 3d
641, 668 (N.D. Miss. 2015) (denying summary judgment due to a “genuine issue of material fact
as to whether [defendants] . . . deliberately chose to remain ignorant” as that showing of “scienter
. . . is sufficient for liability under the [False Claims] Act”).

35 United States ex. rel. Fela'man v. Van Gorp, 674 F. Supp. 2d 475, 481 (S.D.N.Y. 2009)
(quoting In re DDA VP DirectAntitrust Litig., 585 F.3d 677, 693 (2d. Cir. 2009)).

_11_

this case’s ultimate trier of fact and must deny summary judgment. The Plaintiffs
must be given the opportunity to present to a jury evidence of Defendants’ actual
knowledge, subjective belief, and purported bad faith.

B. The Texas Trilogy and The Law of this Case

The rules governing the priority to escheat unclaimed intangible property
where there are conflicting claims between states were established under federal
common law by a series of cases known as the Texas trilogy.36 Under these rules,
the Court applies a three-step analysis to these disputes: first, “determin[ing] the
precise debtor-creditor relationship as defined by the law that creates the property at
issue”; second, identifying whether or not the creditor’s address is recorded; and
third, “if . . . the debtor’s records disclose no address for a creditor . . . award[ing]
the right to escheat to the State in which the debtor is incorporated.”37

Applying these rules in Card Compliant I, a predecessor judge in this case
determined:

With respect to Count One, under (a)(7), even if the CSAs
were not shams, the court must determine the relevant
debtor [for escheat purposes].

>l< >|< >l<

 

36 See Texas v. New Jersey, 379 U.S. 674 (1965); Pennsylvania v. New York, 407 U.S. 206
(1972); Delaware v. New York, 507 U.S. 490 (1993).

37 Delaware, 507 U.S. at 500.

_12_

CardFact and the Retailers cannot contract amongst
themselves to avoid the obligations to their customers (or
Delaware). The only relationship involving the creditor
(the customer) is the one between the creditor and the
Retailers, in contrast to the Retailers relationship with
CardFact. Because the creditor-Retailer relationship is the
relevant relationship, the Delaware-based Retailers are the
relevant debtors for escheat purposes. Again, that is true
if the Retailers and CardFact have their CSAs.38
Plaintiffs asserts that this ruling should stand, because “[s]uch a situation is
guided by the doctrine of the law of the case.” 39 In turn, Plaintiffs say, the Court
should not revisit the predecessor judge’s ruling absent the extraordinary
circumstances that allow for reconsideration only of decisions that are clearly
wrong.40 Defendants argue that the prior ruling of this Court was based on an
incomplete record and the judge assigned to the case at that time did not have the
benefit of any of the documents and testimonial evidence from confidential audits
and VDAs in which Delaware consistently took the position that when a gift card is
assigned before dormancy the Card Company/Non-Delaware Subsidiary is the

relevant debtor for escheat purposes.‘11 Plaintiffs are correct; the law of the case

applies because Defendants have failed to establish that the prior ruling was clearly

 

38 Card Compliant 1, 2015 WL 11051006, ar *6.
39 Pl.’s Prin. Op. Br. at 57-58.
40 Pl.’s Prin. Op. Br. at 57-58.

41 Defs.’ Prin. Op. Br. at 62.

_13_

wrong and that extraordinary circumstances exist so as to permit this Court to
second-guess the earlier decision.

Delaware courts consistently “take a dim view of a successor judge in a single
case overruling a decision of his predecessor.”42 Such a rule of law promotes
“fundamental fairness and . . . judicial efficiency”43 and ensures that parties are not
“entrapped by varying philosophies of different judges of the same Court in the
case.”44 But the law of the case doctrine is “not an absolute bar to reconsideration
of a prior decision that is clearly wrong, produces an injustice or should be revisited
because of changed circumstances.”45 The doctrine only applies “provided the facts

underlying the ruling do not change.”46

 

42 Frank G. W. v. CarolM W., 457 A.2d 715, 718 (Del. 1983); May v. Bigmar, Inc., 838 A.2d
285, 288 n.8 (Del. Ch. 2003) (“The ‘law of the case’ doctrine requires that issues already decided
by the same court should be adopted without relitigation, and once a matter has been addressed in
a procedurally appropriate way by a court, it is generally held to be the law of that case and will
not be disturbed by that court unless compelling reason to do so appears.”) (internal quotation
marks omitted).

43 Zirn v. VLI Corp., 1994 WL 548938, at *2 (Del. Ch. Sept 23, 1994).; Frank G. W., 457
A.2d at 719 (“Considerations of courtesy and comity are particularly relevant in Delaware where
it is not unusual for our Superior Court to have various judges involved at different stages of
protracted cases.”)

44 Fral’lk G. W, 457 A.2d 31719.
43 Gannett Co., Inc. v. Kanaga, 750 A.2d 1174, 1181 (Del. 2000) (emphasis in original).

46 Smre v. Wrighr, 131 A.3d 310, 321-322 (Del. 2016).

_14_

Here, the facts underlying the ruling in Cara’ Compliant I have not changed.
Defendants continue to assert that the CSAs constitute valid assignments of the
Retailers’ obligations to the Card Companies and argue that the Retailers were not
the relevant “debtors” and consequently were not subject to DUPL.47 The only
“change in circumstance” Defendants point to is the fact that the evidence in the
record after discovery shows that in certain nonpublic audits and VDAS Delaware
took the position that gift cards assigned before dormancy to a non-Delaware giftco
were not subject to DUPL. That’s not the type of “extraordinary circumstance[]
,,48

where justice demands the revisiting the merits of the parties’ claims.

C. Marathon Petroleum Supports a View that Delaware May Look Into
(and Past) the Formalities of a Giftco’s Structure.

The United States Court of Appeals for the Third Circuit’s recent decision in
Marathon Petroleum Corp. v. Sec’y of Finance49 further supports a finding that
summary judgment is inappropriate here. Marathon Petroleum involved the State
of Delaware’s unclaimed property audit of Marathon Petroleum Corporation

(“l\/Iarathon”) and its Delaware affiliate, Speedway LLC (“Speedway”). Marathon

 

47 Card Compliant 1, 2015 WL 11051006 at *4.

48 Frank G. W., 457 A.2d at 719.

49 876 F.3d 481 (3d Cir. 2017); see also Ojj‘ice Depot, Inc. v. Secretary of Finance for
Delaware, 710 Fed. Appx. 59 (2018) (holding that the Texas cases do not prevent Delaware from

conducting an examination to determine whether a subsidiary company is bona fide and the true
holder of abandoned property).

_15_

and Speedway had formed Ohio subsidiaries in 2001 and 2002 (the “Ohio
Subsidiaries”), respectively, to issue their gift cards. Several years after the audit
had commenced, Delaware asked questions about the Ohio Subsidiaries and
requested that Marathon and Speedway producer the articles of incorporation for
each of the Ohio Subsidiaries; the governing contracts between each of Marathon
and Speedway and the Ohio Subsidiaries; and numerous other related documents.
Marathon and Speedway complied with the initial request. But after Delaware
requested further documentation, Marathon, Speedway and the Ohio Subsidiaries
brought an action in federal district court.

There they claimed that the federal common law rules in Texas v. New Jersey50
barred Delaware from conducting an audit examining whether the funds paid for gift
cards issued by the Ohio Subsidiaries were held by Marathon and Speedway and
therefore subject to escheatment by Delaware. The district court dismissed the
action holding that private parties cannot invoke the Texas rules to challenge a state’s
authority to escheat property.31

On appeal, the Third Circuit vacated the district court’s decision finding that

private parties have standing to invoke the Texas rules.52 And, importantly here, the

 

59 379 U.S. 674 (1965).
31 Marathon Petroleum, 876 F.3d at 487-88.

52 Ia'. at 492-96.

_16_

Court then went on to hold that “[t]he Texas cases do not prevent Delaware from

examining books and records to determine the true holder of abandoned property.”33

In determining that Delaware had the power to look beyond the four corners of the
contracts and into the course of conduct between Marathon, Speedway and the Ohio
Subsidiaries, the Third Circuit explained that

[t]he Texas trilogy does not stand for the proposition that
states must ignore anything beyond the pages of the
contract. “[D]etermining the precise debtor-creditor
relationship,” [], may at times be a fact-based inquiry into
whether the formalities of corporate separateness have
been observed, not just in theory but in practice. . . . We
do not read the Texas trilogy as foreclosing a state’s right
to conduct an appropriate examination to determine if
there is fraud or another basis for determining that
property may be escheated, even if a contract viewed in
isolation might suggest otherwise.34

Earlier in this case, corporate Defendants sought refuge through application
of the DFCRA’s Administrative Proceedings Bar.33 Then their position was that if
Delaware had previously engaged in the very type of statutory audits (and VDA
procedures) the Third Circuit spoke on to examine their giftco activities and escheat

obligations, then the Defendants had been subject to the type of “administrative

 

33 Ia'. at 499 (citing Delaware v. New York, 507 U.S. at 499).

34 Ia’. at 500-01 (citations omitted).

33 Cara’ Compliant I, 2015 WL 11051006 (dismissing Pantry, Inc.); Card Compliant 11, 2017
WL 1483523 (dismissing others).

_17_

proceedings” that would preclude this Court from exercising subject matter
jurisdiction over the State’s civil suit here.36 To act as a bar, those prior
administrative proceedings must have been “substantially based upon allegations or
transactions which are the subject of a civil suit or an administrative proceeding in
which the Government is already a party.”37 lt would be indeed incongruous if the
administrative proceeding meant to discover and enforce a Defendant’s true escheat
obligation could cover more ground than a qui tam suit claiming fraud in the same
allegations or transactions.

Plaintiffs here question the course of dealings between the Card Companies
and the Retailers and whether the Defendants acted in accordance with the terms of
the CSAs, thereby calling into question the underlying debtor-creditor relationship.
The record shows that the facts upon which that determination depends remain
heavily disputed. As such, summary judgment is inappropriate and must be denied.

D. Purported Lack of Investigation of the Claims by the State.

Defendants contend that Delaware’s DFCRA claim cannot stand because

Delaware failed to conduct an investigation before intervening in this action as

 

36 Card Compliant II, 2017 WL 1483523, at *3; Card Compliant I, 2015 WL 11051006, at
*4.

37 DEL. CODE ANN. tit. 6, § 1206(b) (2012). Again, § 1206(b) has been amended since this
suit was first filed. See 79 Del. Laws ch. 141, § 1 (2013) (codified at 6 Del. C. § 1206 (2013)).
But as this was the wording of the Administrative Proceedings Bar extant from June 30, 2000, to
July 23, 2013, all parties agree it is this version that applies in this case.

_13_

required by 6 Del. C. § 1203(b)(2).38 Delaware argues that Defendants’ statement is
incorrect and that State’s counsel did conduct an investigation into the claims set
forth in the Complaint,39 but “that there were limits to the investigation that the
Department of Justice could have undertaken because it was limited by the

requirement that the Complaint be kept under seal during the course of its

investigation.”60

ln support of their position, Defendants rely heavily on one isolated
observation made by the Court in an earlier decision:

The State is under a statutory obligation to investigate
these claims prior to intervening and proceeding with a qui
iam complaint. The State admits it did not do so. If it had,
it would have learned that Ralph Lauren, Ruth’ s, and Shell
were all undergoing administrative proceedings nearly
identical to those Pantry Pride, Inc. was subjected to, in
which the Court previously found necessitated dismissal
of that co-defendant in this very action.61

Plaintiffs contend that such reliance is misplaced because the Court’s

comment was only directed to the scope of the State’s inquiry into one paragraph of

 

38 DEL. CODE ANN. tit. 6, § 1203(b)(2) (2009) (“Within 60 days after receiving a copy of the
complaint, the Department of Justice shall conduct an investigation of the factual allegations and
legal contentions made in the complaint.”).

39 See, e.g. State of Del. and Pl-Rel.’s Br. in Opp’n to Ruth’s Hospitality Grp, lnc., Mot. to
Dismiss, or in the Alternative, Summ. J. at 6-7; see also Plaintiffs’ contemporaneously filed
Opposition Briefs submitted in conjunction with Trans. No. 59739021.

60 Pl.’s Prin. Br. at 72.

61 Card Compliant II, 2017 WL 1483 523, at *3 (footnotes omitted).

_19_

the Complaint regarding whether there were administrative proceedings pending
regarding this action within the meaning of the DFCRA and not to the entirety of the
Complaint.62 Plaintiffs are correct.

The State conducted a substantial and substantive investigation into the
allegations prior to intervening The fact that the State and the Defendants held
different views as to what constitutes an administrative proceeding under the
DFCRA, which was a matter of first impression before the Court in Cara’ Compliant
II, is not surprising, nor does it negate the State’s efforts to confirm the Complaint’s
allegations

Moreover, even assuming that the State had failed to meet DFCRA’s statutory
investigation requirement, it is within the Court’s discretion as to whether it is
appropriate to dismiss the case on that basis63 In the Court’s view, dismissal is not
warranted. And dismissal is the only potential relief for such a statutory violation of
what is best viewed as a pleading requirement. That alleged failure is neither an
issue of fact for jury determination, nor a basis for summary judgment Rule 56

relief thereon is denied with respect to all remaining Defendants

 

62 Pl.’s Prin. Br. at 74.
63 See State Farm Fire & Cas. Co. v. U.S. ex rel. Rigsby, 137 S. Ct. 436, 444 (2016) (stating

that “[i]n general, the question whether dismissal is appropriate should be left to the sound
discretion of the district court. . ..”)

_20_

E. Gift Cards Sold to Third-Party Intermediaries.

Defendant Overstock argues that because it sold large numbers of gift cards
to third-party intermediaries (a.k.a. bulk purchasers) with known addresses outside
the State, it is entitled to partial summary judgment with respect to those cards
because, after dormancy, the cards are escheatable, if at all, to the states in which the
bulk purchasers are located under the Texas primary rule, and not to Delaware under
the secondary rule articulated in Texas.64 Specifically, Overstock argues that third-
party intermediaries that purchased its gift cards are “permitted, but not obligated,
to sell or transfer the gift cards they purchase” and that they are “the same as any
other purchaser or owner of a gift card.”65 Plaintiffs assert that the third-party
intermediaries that acquired Overstock’s gift cards are in the business of reselling
gift cards to retail purchasers for a profit (in the case of an intermediary like
Blackhawk) or utilizing them as part of an incentive or rewards program (in the case
of a company like Incentco) making them quite different than other purchasers since
their business reality makes it virtually certain the intermediaries will resell the gift

cards under pain of financial loss.66 And so, according to Plaintiffs, such

 

64 Texas v. New Jersey, 370 U.S. 674 (1965).
63 Defs.’ Suppl. Op. Br. at 52.

66 Pls. Supp. Br. at 58. Moreover, in the case of Shutterfly, certain contracts with third-party
intermediaries require the reseller to use commercial best efforts to sell its gift cards Ia’.

_21_

intermediaries are not the “owners” of the cards for purposes of determining which

state has the right of escheatment.

As previously discussed, the U.S. Supreme Court’s decision in Texas v. New
Jersey and its progeny sets forth a three-step analysis for determining which state
has the right to escheat abandoned intangible personal property among competing

states67

First, we must determine the precise debtor-creditor
relationship as defined by the law that creates the property
at issue. Second, because the property interest in any debt
belongs to the creditor rather than the debtor, the primary
rule gives the first opportunity to escheat to the State of
the creditor’s last known address as shown by the debtor’s
books and records Finally, if the primary rule fails
because the debtor’s records disclose no address for a
creditor or because the creditor’s last known address is in
a State whose laws do not provide for escheat, the
secondary rule awards the right to escheat to the State in
which the debtor is incorporated.68

In Delaware, the third decision of the Texas trilogy, the U.S. Supreme Court
made clear that it had “not relied on legal definitions of ‘creditor’ and ‘debtor’
merely for descriptive convenience. Rather, [the Court] grounded the concepts of

‘creditor’ and ‘debtor’ in the positive law that gives rise to the property at issue.”69

 

67 See Texas v. New Jersey, 370 U.S. 674 (1965); Pennsylvania v. New York, 407 U.S. 206
(1972); Delaware v. New York, 507 U.S. 490 (1993).

68 Delaware, 507 U.S. at 499-500 (internal quotes and citations omitted).

69 Delaware, 507 U.S. at 501.

_22_

The Court went on to explain that an “examination of the holder’s legal obligations
not only defined the escheatable property at issue but also carefully identified the
relevant ‘debtors’ and ‘creditors.’70 Based on these rules, Overstock’s position is
founded on the notion that the third-party intermediaries are the “creditors” to whom
the debtors (i.e. Retailers) owe the contractual obligation to produce goods and
services in exchange for the gift cards But that is just not consistent with what was
happening here.

Overstock relies on Nellius v. Tampax,71 a 1978 Delaware Chancery Court
case, and N.J. Retail Merchanis Ass ’n v. tS'ia’amon-Eristojf72 a 2012 Third Circuit
case, in support of its position. But neither case is dispositive. ln Nellius, the
Delaware’s Escheator brought a cause of action against Tampax, Incorporated, a
Delaware corporation, alleging that the corporation was the holder of certain stock,
stock dividends and cash dividends which were subject to escheat by the State.73
The original holder of the 200 shares of stock in question that yielded the dividends

were issued to a resident of Massachusetts as recorded on the corporation’s stock

 

70 Delaware, 507 U.S. at 503.
71 394 A.2d 233 (Del. Ch. 1978).
72 669 F.3d 374 (3(1 Cir. 2012).

73 Nellius, 394 A.2d 233, 234.

_23_

ledger.74 The original holder sold his stock sometime thereafter, but the transfer was
never recorded on the corporation’s books and records.73 For several years after the
sale, the corporation sent dividend checks to the original record holder and on each
occasion the original holder sent back the check with a notation disclaiming
ownership of the shares.76 After several rej ections, the corporation stopped
forwarding the dividends to the record holder, but continued to hold and accumulate
the dividends and stock splits in the name of the original record holder.77

In bringing the cause ofaction, the Escheator took the position that the address
of the owner of the abandoned property was unknown giving Delaware the right to
escheat the property under the secondary rule in Texas.78 The Court of Chancery
disagreed and held that the state of the last known address of the creditor as shown
on the debtor’s books and records (i.e. Massachusetts) had the right to escheat the
stock and dividends despite the record holder disavowing ownership thereof and

dismissed the action brought by Delaware for lack of standing.79

 

74 Id.
75 1a
76 ld.

77 Ia’. Over time, the original 200 shares grew to a total of 7,200 shares and cash dividends
of$145, 072. Ia'. at 234-35.

78 Ia’. at 236.

79 Id. at 236.

_24_

Nellius is simply different than what has happened (and is happening) with
Overstock gift cards ln Nellius, the corporation (i.e., the debtor) had incorrect
owner information on its books and records as opposed to no owner information at
all (as the State Escheator had argued). The Court of Chancery’s Nellius decision is
consistent with the primacy in which the stock ledger is held under Delaware
corporate law.80 Had there actually been no record holder information at all with
respect to the shares at issue in Nellius, the decision would likely have been different.

In N.J. Retail Merchanis Ass ’n v. Sia’amon-Eristojf the issuers of gift cards
brought a cause of action challenging certain amendments to New Jersey’s
unclaimed property laws regarding escheatment of gift cards The issuers argued,
among other things, that a provision of the New Jersey statute requiring the issuers
to obtain the name and address of the purchaser or owner of each gift card sold (and,
at a minimum the zip code of the purchaser or owner, collectively referred to by the
Court as the “data collection provision”) was preempted by federal common law

because it did “not further the Texas priority scheme.”61 The issuers argued that the

 

80 See e.g. Shaw v. Agri-Mark, Inc. 663 A.2d 464 (Del. 1995) (holding that the corporation
may look to its stock ledger as the sole evidence in identifying those shareholders of record who
are entitled to inspection under Section 220 of the General Corporation Law); In Re Giant Portland
Cement Co. , 21 A.2d 697 (Del. Ch. 1941) (holding that as far as the corporation is concerned, the
record owner must be regarded as the real owner of the stock, with the consequent right to vote
such stock by proxy or otherwise).

61 N.J. Retail Merchanis Ass 'n v. Sia’amon-Eristoff 669 F.3d 374, 397 (3d Cir. 2012).

_25_

statute’s data collection provision did little to reunite abandoned property with its
actual owner, who was most often the recipient of the gift card.82 When rejecting
this argument, the Third Circuit cited the Texas trilogy noting that “either the
purchaser or recipient of the gift card may redeem the gift card because either can
be considered the creditor” and reiterating that the United States Supreme Court “has

consistently permitted states to escheat based on the last known address of the

purchaser.”83

Plaintiffs assert that the N.J. Retail Merchanis Ass ’n holding that either the
gift card’s purchaser or recipient may be the “creditor” is of no moment here because
the Court of Appeals never considered the type of intermediaries used by

Overstock.34 Plaintiffs are right.

 

82 Id.
63 Ia'. (internal citations omitted).

64 Pls. Supp. Br. at 61. Nor has the United States Supreme Court. The type of intermediary
considered by the Supreme Court in Pennsylvania v. New York, 407 U.S. 206 (1972) was Western
Union Company, which held proceeds left unclaimed because the company was not able to locate
the payee of a money order or to make a refund to the sender. In such a circumstance, the Supreme
Court found that “either a payee or a sender” may redeem a money order because either can be
considered a creditor. Id. at 213. Likewise, the type of intermediaries considered by the Supreme
Court in Delaware v. New York, 507 U.S. 490 (1993), were financial intermediaries such as banks,
brokers and depositories that held unclaimed dividends and other distributions made by securities’
issuers for their beneficial owners These financial intermediaries were the “record owners” of the
stock and fully entitled to receive the distributions based on those securities Ia'. at 495. The
Supreme Court found that these financial intermediaries that held the unclaimed property in their
own names were the relevant “debtors” under the secondary rule in Texas because an intermediary
serving as a record owner is the “debtor” insofar as it has contractual duties to transmit distributions
to the beneficial owner and that issuers can no longer be considered “debtors” once they pay
dividends and distributions to the record owners Ia’. at 504.

_26_

While Overstock claims that sales of its gift cards to intermediaries are the
same as any other sale of gift cards to retail purchasers and are recorded as such on
their respective books and records,33 the record also reveals that the sales of
Overstock’s gift cards to certain intermediaries (such as Blackhawk)36 are not the
functional equivalent of sales to end-use consumers Gift cards that are purportedly
sold to intermediaries like Blackhawk are not activated nor are they assigned any
monetary value at the time of sale to that intermediary.37 Rather, the gift cards are
activated at the time when a retail customer takes it to a store register for activation
and purchase.33 As one witness testified, “any time before that, it’s just a piece of
plastic.”39 That witness explained: “[w]e pay Blackhawk a fee for gift cards that we
sell at third-party retailers.”90 In turn, there is hardly a record supporting the notion
that Overstock is entitled to judgment as a matter of law. lnstead, the weight of the

evidence suggests far more strongly that those of Overstock’s intermediaries are

 

33 Defs.’ Suppl. Op. Br. at 53.

36 According to one witness, “Blackhawk is a well-connected third-party distributor.
Essentially they allow us [i.e. Overstock] to put our cards in thousands of physical locations and
thousands of digital locations Essentially they’re a middle man. . . .” See Ex. 59 to Pls. Supp. Br.
at 109.

37 Pls. Supp. Br. at 59.

33 Pls. Supp. Br. at 59.

39 Pls. Supp. Br. at 59.

96 Ex. 7 to Pls. Supp. Br. at 41.

_27_

neither “creditors” nor the gift cards’ “owners” at all; they are, rather, just a conduit
for sales to retail purchasers and consumers

The record reveals also that other bulk purchasers of gift cards may purchase
gift cards outright and then use the gift cards as incentives for its customers (like
Discover card)91 or operate businesses that utilize gift cards as rewards or incentives
for employees or customers (like Incento).92 Despite the purported purchase of such
gift cards by these types of third-party intermediaries, nothing in the record indicates
that such bulk purchasers remain the holders of such cards through dormancy,
Rather, the gift cards are routinely transferred to customers or employees who are
the “creditors” as contemplated by Texas. Therefore, summary judgment in
Overstock’s favor is equally inappropriate with respect to those transactions

VI. CONCLUSION

Accordingly, for the reasons stated above, Defendants’ Motion for Summary

Judgment is DENIED.

IT IS SO ORDERED.

@DM

Paul R. Wallace, Judge

 

91 Ex. 7 to Pls. Supp. Br. at 44.

92 See Ex. 59 to Pls. Supp. Br. at 112-13 (“So, Incento, . . . so essentially they run a site that
is a private site with a - l believe they’re a rewards program for their just specific companies that
can access the site, so you work at the company and you do some good things, you get some reward
benefit that you can go redeem for a gift card on their site.”).

_28_

