Opinion of the Court
IV
Delaware argues that even if the Disputed Instruments qualify as “other similar written instrument[s]” within the meaning of §2503 they are also “third party bank check[s]” and, as such, are expressly excluded from the FDA.[1] The Special Master, too, ultimately adopted a version of this argument; in his view, the “third party bank check” exemption applies to any Disputed Instrument on which a bank is liable (in addition to MoneyGram).[2] Neither Delaware nor the Special Master has provided a persuasive reason for concluding that the Disputed Instruments are “third party bank check[s]” within the meaning of the FDA, and the drafting history of the statute further confirms that the
- ↑ The Special Master concluded that the “third party bank check” exemption modifies only “other similar written instrument” and does not modify the terms “money order” or “traveler’s check.” Delaware does not challenge this conclusion.
- ↑ When they appeared before the Special Master, the parties and experts disagreed on the meaning of “liability,” and no one has proffered an agreed-upon definition to this Court. Before us, Delaware does not dispute the Special Master’s conclusion that MoneyGram is “directly liable” on the Disputed Instruments. When referencing a bank’s liability on a MoneyGram product, it appears that the Special Master was using the term to describe a situation where a bank—as opposed to only MoneyGram—also has an obligation to pay the prepaid instrument upon proper presentment.
business practices. But, given this unusual statute, that is not an anomalous outcome. Both Congress (in the text of the FDA) and this Court (in our precedents) have indicated a preference for the equitable distribution of escheats, and our common-law rules can result in equitable escheatment if the business practices of the company possessing the funds suffice. The FDA is a recognition that, sometimes, our common-law rules do not achieve that outcome, i.e., it is the equivalent of a statutory “Band-Aid” if our common-law rules fail. In other words, the FDA is a statutory fix that need only kick in when, as a matter of business practice, the company holding the funds does not generally collect the relevant address information, such that inequitable escheatment occurs. The text and context of the FDA—and especially the phrase “other similar written instrument”—connote that flexibility and do not suggest that the statute only and exclusively applies to a static category of products.
