Office Depot is taking on the state of Delaware over its unclaimed property audit tactics, asking the U.S. District Court in Delaware to declare that the state’s unclaimed property law violates federal law and the U.S. Constitution.
Along with North American Card and Coupon Services, Office Depot has named three Delaware officials as defendants in its suit, including the state’s secretary of finance, the state escheator, or the one in charge of collecting unclaimed property, and the state’s audit manager.
Office Depot has been tangled up in an unclaimed property audit that has dragged on for more than three years, according to a complaint and attached documents filed with the court. The company says the state’s outsource audit service provider, Kelmar, which works on a contingent fee, is demanding “voluminous, over broad, and irrelevant information and documents, including information on property that is not within Delaware’s jurisdiction.
That includes gift cards, gift certificates, and merchandise credits issued by NACCS, a Virginia company in which Office Depot is the “sole member,” the complaint says. Delaware has no authority over NACCS, the complaint says. When Office Depot declined certain audit requests citing case law that challenges Delaware’s authority, Kelmar responded with a promise to refer the matter to Delaware’s attorney general’s office for enforcement action, according to the complaint.
Delaware is known to be among the most aggressive states in pursuing unclaimed property from companies incorporated there. The state is engaged in a separate legal battle with numerous big-name retailers and Card Compliant over gift card practices that Delaware considers abusive. The state alleges that companies are conspiring to hide abandoned gift card balances to avoid unclaimed property law.
Office Depot says in its complaint that it entered a voluntary self disclosure agreement with Delaware in 2001 to settle up any historical unclaimed property issues, and has filed annually with state each year since. The company had issued its own gift cards prior to 2002, but then engaged with the newly formed NACCS in 2002 to issue gift cards, gift certificates and merchandise credits going forward.
The state informed Office Depot in early 2013 that it intended to examine the books and records of the company as well as its subsidiaries and related entities to determine compliance with Delaware unclaimed property law. Kelmar took up the work and requested “voluminous detailed financial records for periods back to 1995,” despite a six-year statute of limitations, the complaint says. The record request included a demand for essentially the entire corporate history of NACCS.