Opinion of the Court
whatsoever for the conclusion that this is what “third party bank check” means in the FDA context. And, indeed, Delaware’s own expert disagreed with that definition for FDA purposes. Delaware also has no theory as to why it matters to the escheatment rules that the statute adopts whether a financial instrument is or is not paid through a third party like MoneyGram. Thus, we are hard pressed to agree that “third party bank check” means what Delaware says.
The Special Master’s analysis fares no better. In his Second Interim Report, the Special Master offered a potential definition of “third party bank check” that relies on the view that the phrase was intended to exclude from the FDA’s reach certain financial instruments that were well known at the time of the statute’s enactment but were not expressly mentioned in the statute—specifically, cashier’s checks, certified checks, and teller’s checks. According to the Special Master, a significant feature of those particular financial instruments at the time of the FDA’s enactment was that a bank was liable on those instruments. Therefore, according to the Special Master, insofar as a bank is directly liable on some of the Disputed Instruments (in addition to MoneyGram), any such MoneyGram product is a “bank check” that should be deemed to fall within the “third party bank check” exception for purposes of the FDA.
We detect multiple problems with the Special Master’s reasoning. For one, the Special Master did not explain why the statute uses the amorphous phrase “third party bank check” to capture specific financial instruments that, according to the Special Master, were well known at the time of the enactment of the statute. Congress called out other well-known instruments—money orders and traveler’s checks—by their names in the text of the FDA. One would reasonably expect it to have done the same for cashier’s checks, certified checks, and teller’s checks.[1]
- ↑ We are not opining today as to whether the FDA applies to cashier’s
