When The Protectors Of Abandoned Property Become The Predators… What Should Public Companies Be Doing??
An Interview With Bob Irvine, President And Jennifer Borden, Executive Vice President & General Counsel, Unclaimed Property Recovery And Reporting, LLC
The OPTIMIZER: As you both know, abandoned property has been very high on the Optimizer’s radar screen for 17 years now: We consider it to be one of the most important – and among the most troublesome set of issues a public company has to deal with. And about a year ago it seemed that State Treasurers were ramping up their activities here in a major way. What exactly has been happening?
Bob Irvine: It’s no secret, of course, that states are under enormous financial pressures these days. And many seem to think that there is a bottomless pit of money out there in the form of abandoned property – that they can lay hand on rather easily – and that once they have it, only a tiny fraction of the real owners ever appear to claim it. So it’s like “free money” to them.
This may have been true when no one was paying much attention to the issues, but it’s no longer true today. But, for starters, about a year ago, the State of California launched a major effort to challenge the escheatment reports that publicly traded companies had filed with them – going back as far as ten years. Over 4,000 demands were issued, asserting that various reports were late, or contained errors, and accordingly, that a wide array of fines and penalties were due. Most of the complaints that we know about at UPRR ended up with the company’s transfer agent – which required the TA’s to research and respond to them one by one. For most of our clients, after tedious research, we were able to have the assessments reduced or reversed, and we believe many TA’s had similar success for their clients. But many assessments appear to have been settled-out by public companies themselves – because they were not sure on how to answer, or where to go for the information they needed to refute them. Thanks to the efforts of Securities Transfer Association members, where we were very proactive, these demands have pretty much simmered down: A lot of work was done on both sides – without bearing much fruit for California.
Jen Borden: But earlier this year the states embarked on a much more troublesome initiative – contingent fee audits of the equity filings that companies have reported and remitted back to 1981 – in search of errors and omissions that may have been made over the last three decades.
The OPTIMIZER: We have been hearing that this is a mighty disruptive thing for public companies. Tell us a little bit about how these audits go.
Borden: About half of the Fortune 1000 has been or is going through a general ledger audit. Therefore, the audits are already authorized, and the equity portion simply begins with a new information request. It is a staggeringly long list of documents the auditing firm wants to have. Question-two, for example, typically calls for a list of “all mergers, acquisitions, and redemptions that have been made since 1981” – which for many companies runs to two or three pages. Then they ask for a list of the unexchanged shareholders of all these deals and any outstanding balances there may be…plus “proof” of all the cash deposits that were made to the various paying agents. Can’t lay hands on all this stuff? No problem, they’ll simply “estimate” and say, for example, “Well…there were X number of shares, at X dollars, … so we’ll estimate that 10% of them must not have exchanged their shares, so X dollars are due to your state of incorporation, plus interest.”
Irvine: And no big surprise, we’re hearing lots of stories about big companies that took over smaller companies – that had made several acquisitions themselves, way back when. But with all the changes there have been, both in the public company sector and in the transfer agent sector, there is not always a clear audit trail, or clarity on who the responsible party is. And let’s face it, most companies assumed, and with good reason, that they’d “closed the books” on these deals once and for all when they escheated everything that was left over…way back when.
Borden: There’s another interesting factor at work here too: audit fatigue. Many companies – especially the largest and best-known ones – are war-weary: They’ve already been through a major siege of general ledger audits by cash hungry states. These audits consumed a huge amount of time and talent and, aside from the cost, they created a major distraction in the company treasurer’s office, and in the legal and auditing departments too. The equity auditors insist on speaking directly with the company. They don’t want to speak with the transfer agents. So there is a strong temptation to simply pay up to end the audit barrage.
The OPTIMIZER: We go back to the days when state treasurers used to brag about their efforts to find “lost shareholders” – and would actually keep stock certificates in their vaults, so that “found holders” would get their full value back. This no longer seems to be the case. And are we right that these audits are being conducted by outside contractors – who are being paid on commission – through a bounty system of sorts?
Borden: I’ve worked for and defended a state in abandoned property matters, and believe that state officials want to do the right thing by their citizens. To reach out to return property, they attend state fairs, and attempt to publish information on the internet, and utilize newspapers alert owners. However, most states are selling underlying shares as soon as they become escheatable, and will only give back what they got –not the shares themselves, or the appreciated value – if the rightful owners come forward. And yes, the outside auditors are working on a sort of bounty system: although there are variations, in most instances they are being paid 12% of the amount they deem to be escheatable. The problem I have with this system is that it allows the auditors to drill an awful lot of dry holes at corporate sites, thanks to the gushers they occasionally find elsewhere. Some states are now saying that there should be no pre-escheatment searches allowed. This creates an inherent conflict – the states are using statutes designed to reunite owners with their property to say don’t attempt to reunite owners with their property. Couple that with the liquidation of the shares, and it’s as if the former protectors have turned into predators.
The OPTIMIZER: Apropos the predators, and potentially predatory practices, let me ask about the many moves we’ve been hearing about to make a lot more property “escheatable” than ever before.
Irvine: Several states have already adopted a “no contact standard” for escheatment, instead of the very longstanding practice of waiting for actual evidence that a holder is “lost” or that their property has been abandoned. There is a growing list of states that are considering similar moves. This is really a terrible practice. Take a typical shareholder who’s in a Dividend Reinvestment Plan: They made a decision way back when to buy the stock…and then to systematically reinvest. There really was no need for continued review of the account– and many inves-tors felt no need to buy more, or sell any, or vote their proxies or to write the agent a letter. But under a no-contact standard their property would be escheatable – unless the company goes to the expense of “proving contact” by sending such people something that they have to send back. And, as we all know, many recipients of such notices just won’t pay them any attention, or send anything back, and will lose their entire stake as a result.
The OPTIMIZER: The scariest thing about these kinds of state practices, from our perspective, is that some of the people whose property was theoretically abandoned will ultimately come forward, and that in general, most states will only pay back what they realized when they sold off the underlying assets, – rather than the appreciated value. So owners, or their heirs, will assert that the company failed to do right by them, and sue…and maybe win.
Borden: Yes, this is probably the worst nightmare one can contemplate. And there have been plenty of such suits, where even if you win you lose after you count in the time, the legal expense, and the reputational expense. The answer is so simple: Just find the owners before you escheat even a dime. It is easier, and less expensive to find so-called lost-holders than ever before. And most important, as we are seeing of late, escheating even one thin dime is opening the door for lawsuits and the accompanying negative publicity.
The OPTIMIZER: What are the top tips you’d offer to people who discover they’re going to be audited?
Borden: First, read the letter you get with special care. Make sure you – and they – dot every “i” and cross every“t”: Make sure, for example, that you know exactly what states the audit firm is representing. If they are representing two states, do not turn over records for all 50 states, even thought they may ask you to. Know the state laws that apply, and what, exactly, they mean: What, for example is the “date prescribed for payment” or a “string of uncashed checks”? Make sure that the acquisitions are actually ones for which your company is responsible. Cross reference the outstanding shareholder files with your payroll files to make sure that you do not escheat the shares of your employees. Pay particular attention to accounts held in street name. The United States Supreme Court has made it clear that such accounts are the responsibilities of the broker dealer, not the issuer, yet the auditors are attempting to take these accounts. The burden of proof in audits such as these ought to be on the states – not on you.
Irvine: If you are getting audited, be sure to find and use experts. Very few in-house attorneys are familiar with arcane matters like these, but your transfer agents generally have people on staff who are. And most transfer agents have outside experts of their own, who specialize in abandoned property. So, as Jen said, do not go into any audit under-prepared.
For information about developing a comprehensive shareowner outreach program, “reach out” to:
Jennifer Borden, Boston 857.753.4430
Bob Irvine, New York 212.971.3333, ext. 12