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New Jersey Ret. Merch. Assn v. Sidamon-Eristoff

January 13, 2011

NEW JERSEY RET. MERCH. ASSN.,
PLAINTIFF,
v.
SIDAMON-ERISTOFF, ET AL., DEFENDANTS.
NEW JERSEY FOOD COUNCIL,
PLAINTIFF,
v.
STATE OF NEW JERSEY, ET AL., DEFENDANTS.
AMER. EXP. PREPAID CARD MGMT. CORP.,
PLAINTIFF,
v.
SIDAMON-ERISTOFF, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Wolfson, United States District Judge

NOT FOR PUBLICATION

OPINION

Presently before the Court is a motion brought by Plaintiffs American Express Prepaid Card Management Corporation ("AMEX Prepaid"), New Jersey Retail Merchants Association ("Retail Merchants"), and New Jersey Food Council ("Food Council") (collectively, "Plaintiffs'"), each issuers of stored value cards ("SVCs"), for construction of the Court's November 13, 2010 Opinion and Order ("November 13th Ruling"*fn1 ) granting a preliminary injunction enjoining Defendants Andrew P. Sidamon-Eristoff, Treasurer of the State of New Jersey ("Treasurer"), and Steven R. Harris, Administrator of Unclaimed Property of the State of New Jersey (collectively, "Defendants") from enforcing portions of New Jersey's recent amendment to its Unclaimed Property Law, 2010 N.J. Laws Chapter 25 ("Chapter 25" or "the Act"), codified at N.J.S.A. 46:30B-1, et seq. ("Unclaimed Property Act"), and portions of the Treasury Guidance dated September 23, 2010. In the alternative, Plaintiffs seek another preliminary injunction enjoining Defendants from enforcing the data collection requirements created by Chapter 25 as well as portions of the Treasury Announcements dated November 23, 2010 and November 24, 2010. For the reasons that follow, the Court clarifies its November 13th Order and denies Plaintiffs' request to enjoin the data collection provisions of the Act.

I. BACKGROUND

The facts surrounding Plaintiffs' dispute with Chapter 25 are set forth in great detail in the Court's opinion dated November 13, 2010. Since I write for the sake of the parties, I recount here only those facts necessary for the disposition of this motion.

In the November 13th Ruling, inter alia, this Court enjoined application of the place-of-purchase presumption found in subsection 5c of Chapter 25. The basis for this ruling was that the place-of-purchase presumption is preempted by the federal common law set forth in a series of Supreme Court cases that create a priority scheme for the escheat of abandoned intangible property-the Texas line of cases. At the conclusion of this Court's Texas preemption analysis, the Opinion stated "[t]he State shall be preliminarily enjoined from applying the place-of-purchase presumption in the Act to SVCs." 2010 WL 4722209 at 45.

Shortly thereafter, on November 23, 2010, the Treasurer issued Treasury Announcement FY 2011-05, which directed all issuers of SVCs to collect and maintain zip code information. This Announcement relied on a separate paragraph found in subsection 5c of the Act, which states "[a]n issuer of a stored value card shall obtain the name and address of the purchaser or owner of each stored value card issued or sold and shall, at a minimum, maintain a record of the zip code of the owner or purchaser." The next day, on November 24, 2010, the Treasurer issued Treasury Announcement FY 2011-06, which extended the effective date for this data collection provision to January 3, 2011. Thereafter, the State appealed the place-of-purchase presumption aspect of the Court's November 13th Ruling.*fn2

The instant motion was filed on December 8, 2010, followed by opposition and reply papers. Via a conference call, on December 21, 2010, the Treasurer agreed to further extend the effective date to January 15, 2011, to afford the Court time to consider and rule on Plaintiffs' motion.

II. DISCUSSION

A. Construction of November 13th Ruling

Plaintiffs first move for clarification or construction of this Court's November 13th Ruling, citing language in McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949), stating that a party may petition "the District Court for a modification, clarification, or construction of [a previously-issued] order." There is no provision in the Federal Rules of Civil Procedure for such a motion. However, according to both Federal Rule of Civil Procedure 62(c) and Federal Rule of Appellate Procedure 8(a)(C), a party may move in the district court for "an order suspending, modifying, restoring, or granting an injunction while an appeal is pending." Fed. R. App. Proc. 8(a)(C). The State's appeal of this Court's place-of-purchase presumption is still pending. Thus, I find it appropriate to consider Plaintiffs' request for clarification and construction of the November 13th ruling.

Plaintiffs interpret the November 13th Ruling as enjoining not only the place of purchase presumption found in 5c of Chapter 25, but also the data collection requirement in the preceding paragraph. Subsection 5c reads as follows:

An issuer of a stored value card shall obtain the name and address of the purchaser or owner of each stored value card issued or sold and shall, at a minimum, maintain a record of the zip code of the owner or purchaser.

If the issuer of a stored value card does not have the name and address of the purchaser or owner of the stored value card, the address of the owner or purchaser of the stored value card shall assume the address of the place where the stored value card was purchased or issued and shall be reported to New Jersey if the place ...


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