Reed Smith In-depth

Key takeaways

  • On September 12, 2024, the Sacramento Superior Court denied summary judgment to both the Investment Company Institute (“ICI”) and the California Controller regarding the construction of California Code of Civil Procedure § 1516 (“Section 1516”), the statutory provision that determines when a security becomes dormant.
  • The Court’s decision does not resolve the ongoing uncertainty for holders over when to escheat securities and may even deepen that uncertainty, and signals that it could take several more years until holders receive final, binding guidance on Section 1516.
  • In light of the risk created by this uncertainty, holders should consider consulting with counsel for assistance in navigating this complex situation.

Background

In October 2021, Investment Company Institute (“ICI”) challenged the California Controller’s interpretation of California Code of Civil Procedure § 1516 (“Section 1516”). Section 1516 relates to the presumption of abandonment for securities and provides that a security is presumed abandoned “if (1) the [security] is owned by a person who for more than three years has neither claimed a dividend [or similar payment]. . . nor corresponded in writing with the [holder] or otherwise indicated an interest as evidenced by a memorandum or other record on file with the [holder], and (2) the [holder] does not know the location of the owner at the end of the three-year period.” Section 1516(b) (emphasis added). Separately, Section 1516(d) requires a holder to mail outreach notices (referred to as pre-escheat “due diligence”) to owners six to twelve months before stock becomes escheatable to the state.