Delaware v. Pennsylvania

(Slip Opinion)              OCTOBER TERM, 2022                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                 DELAWARE v. PENNSYLVANIA ET AL.

        ON EXCEPTIONS TO REPORTS OF SPECIAL MASTER

 No. 145, Orig. Argued October 3, 2022—Decided February 28, 2023*
A State may take custody of abandoned property located within its borders; this process is commonly known as “escheatment.” When abandoned property is intangible, however, the lack of a physical location
  means that multiple States may have arguable claims. In these cases,
  the question is which States have the right to escheat two financial
  products sold by banks on behalf of MoneyGram: Agent Checks and
  Teller’s Checks (collectively, Disputed Instruments). Operating much
  like money orders, both products are prepaid financial instruments
  used to transfer funds to a named payee. When these prepaid instruments are not presented for payment within a certain period of time,
  they are deemed abandoned, and, currently, MoneyGram applies the
  common-law escheatment practices outlined in Texas v. New Jersey,
  

. There the Court established the rule that the proceeds
  of abandoned financial products should escheat to the State of the creditor’s last known address, 

 at 680–681, or where such records are
  not kept, to the State in which the company holding the funds is incorporated, 

. Because MoneyGram does not, as a matter of regular business practice, keep records of creditor addresses for the two
  products at issue in this case, it applies the secondary common-law
  rule and transmits the abandoned proceeds to its State of incorporation, i.e., Delaware.
     Multiple States invoked this Court’s original jurisdiction to determine whether the abandoned proceeds of the Disputed Instruments
  are governed by the Disposition of Abandoned Money Orders and Traveler’s Checks Act (Federal Disposition Act or FDA) rather than the
——————
  * Together with No. 146, Orig., Arkansas et al. v. Delaware, also on exceptions to reports of Special Master.
2                   DELAWARE v. PENNSYLVANIA

                                 Syllabus

    common law. The FDA provides that “a money order . . . or other similar written instrument (other than a bank check · Case Law">third party bank check)” should
    generally escheat to “the State in which such . . . instrument was purchased.” 

. This Court consolidated the actions and
    appointed a Special Master. In his initial report, the Special Master
    concluded that the Disputed Instruments were covered by the FDA.
    Following oral argument in this Court, he reassessed that decision and
    issued a second report, concluding that many of the Disputed Instruments were or could be “third party bank check[s],” which are excluded
    from the FDA and would generally escheat to Delaware under the circumstances.
Held: The Disputed Instruments are sufficiently “similar” to a money order to fall within the FDA. Pp. 9–23.
    (a) The parties disagree whether the Disputed Instruments qualify
 as “money order[s]” or “other similar written instrument[s] (other than
 a third party bank check)” under §2503. Because a finding that the
 Disputed Instruments are similar to money orders would be sufficient
 to bring the Disputed Instruments within §2503’s reach, the Court
 need not decide whether they actually are money orders. Instead, the
 Court concludes that the Disputed Instruments are sufficiently “similar” to money orders so as to fall within the “other similar written instrument” category of the FDA. Pp. 9–16.
       (1) The Disputed Instruments share two relevant similarities
 with money orders. First, they are similar in function and operation.
 Although the FDA does not define “money order,” a variety of dictionary definitions contemporaneous with the Act’s passage universally
 define a “money order” as a prepaid financial instrument used to transmit a specified amount of money to a named payee. And this Court’s
 common-law precedents—the backdrop against which the FDA was
 enacted—are in accord with that definition. In addition, the features
 that money orders share with the Disputed Instruments, e.g., the fact
 that they are prepaid, make them likely to escheat, and thus implicate
 the FDA in the first place.
    Second, due to the recordkeeping practices of the entity issuing and
 holding on to the prepaid funds, abandoned money orders and the Disputed Instruments both escheat inequitably under the Court’s common-law rules. The FDA was passed to abrogate this Court’s common-law precedents precisely because, for certain instruments like money
 orders, the entities selling such products often did not keep adequate
 records of creditor address information as a matter of business practice, which meant that the common law’s secondary rule mandating
 escheatment to the State of incorporation always applied. The FDA
 prevents this “windfall” to the State of incorporation by instead adopting a place-of-purchase escheatment rule that distributes escheats “as
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                              Syllabus

a matter of equity among the several States.” §§2501(3), 2503. Because MoneyGram does not keep records of creditor addresses as a
matter of business practice, application of the common law to the Disputed Instruments would produce the same inequitable result that the
FDA is designed to remedy. Pp. 9–14.
     (2) Delaware’s contrary arguments are unpersuasive. First, the
State contends that “money order” refers to a specific commercial product labeled as such on the instrument and sold to low-income individuals in small amounts. Unable to present a dictionary definition that
cabins the term as described, Delaware attempts to highlight the various ways in which the Disputed Instruments differ from money orders. But Delaware never explains how the differences are relevant to
the assessment of similarity for FDA purposes or how such differences
undermine the similarities previously outlined above.
   In an effort to make those proffered differences more relevant, Delaware asserts that the FDA was actually concerned with dissuading
States from adopting costly recordkeeping requirements that would
then be passed on to consumers. Delaware argues that the Disputed
Instruments are unlike money orders in that the consumers of the Disputed Instruments are typically more capable of absorbing the cost of
recordkeeping requirements. The text of the FDA, however, does not
support this argument.
   Finally, Delaware’s suggestion that §2503 be read narrowly to avoid
creating surplusage and sweeping in all sorts of unintended financial
products goes too far. While there is some merit to Delaware’s concern
about a broad definition of “money order,” this Court need not actually
define that term, as it suffices under the FDA that the instruments in
question be “similar” to a money order. Pp. 14–16.
   (b) Both Delaware and, to some extent, the Special Master, claim
that even if the Disputed Instruments qualify as “other similar written
instrument[s]” under the FDA, they are also “third party bank
check[s],” which are expressly excluded from the FDA. The problem
with this argument is that the FDA does not define that phrase. Nor
does that phrase have a commonly accepted meaning. Delaware insists that the term means a check signed by a bank officer and paid
through a third party. But the State provides no theory as to why it
matters to the FDA’s escheatment rules whether a financial instrument is or is not paid through a third party. In his Second Interim
Report, the Special Master offered the view that “third party bank
check” was intended to exclude from the FDA’s reach certain well-known financial instruments upon which a bank may be liable, specifically, cashier’s checks, certified checks, and teller’s checks and thus,
to the extent a bank shares liability with MoneyGram on a Disputed
Instrument, that product should likewise be characterized as a third
4                    DELAWARE v. PENNSYLVANIA

                                  Syllabus

    party bank check and thereby excluded from the FDA. The Special
    Master did not explain why Congress would use an amorphous term
    to describe well-known financial products, while also calling out other
    well-known instruments, such as money orders, by name in the FDA.
    Nor did the Special Master explain how bank liability relates to the
    FDA’s escheatment rules in any meaningful way. Bank liability also
    does not seem to be a tipping point for triggering an exclusion from the
    FDA given that banks can be liable on money orders and those products are expressly covered by the statute. Finally, the legislative history of the FDA does not support the contention that the Disputed Instruments constitute “third party bank check[s].”             The well-documented circumstances surrounding the insertion of the phrase
    into §2503 support the conclusion that, whatever the intended meaning of “third party bank check,” it cannot be read broadly to exclude
    from the FDA large swaths of prepaid instruments that escheat inequitably due to the business practices of the company holding the funds.
    Pp. 17–22.
Exceptions to Special Master’s First Interim Report overruled; First Interim Report and order adopted to the extent consistent with this opinion; and cases remanded.

   JACKSON, J., delivered the opinion for a unanimous Court with respect
to Parts I, II, III, and IV–A, and the opinion of the Court with respect to
Part IV–B, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined.
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                              Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that
     corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                    _________________

                        Nos. 145, Orig. and 146, Orig.
                                    _________________


                 DELAWARE, PLAINTIFF
145, Orig.                v.
              PENNSYLVANIA AND WISCONSIN

                ARKANSAS, ET AL., PLAINTIFFS
146, Orig.                   v.
                       DELAWARE
      ON EXCEPTIONS TO REPORTS OF SPECIAL MASTER
                               [February 28, 2023]

   JUSTICE JACKSON delivered the opinion of the Court.*
   “Escheatment” is the power of a State, as a sovereign, to
take custody of property deemed abandoned. Texas v. New
Jersey, 

 (1965). In the context of tangible
property, the escheatment rule is straightforward: The
State in which the abandoned property is located has the
power to take custody of it. 

. But determining
which State has the power to escheat intangible property,
which has no physical location, can be complicated, as multiple States may have arguable claims. See 

   These original jurisdiction cases require us to decide
which States have the power to escheat the proceeds of certain abandoned financial products that MoneyGram Pay-


——————
 *JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE
BARRETT join all but Part IV–B of this opinion.
2      DELAWARE v. PENNSYLVANIA AND WISCONSIN

                     Opinion of the Court

ment Systems, Inc. (MoneyGram) possesses. Delaware argues that this Court’s common-law rules of escheatment apply, which means that the abandoned proceeds should go to
Delaware as MoneyGram’s State of incorporation. A collective of other States (the Defendant States) argues that a
federal statute—the Disposition of Abandoned Money Orders and Traveler’s Checks Act (Federal Disposition Act or
FDA), 

, 

 et seq.—governs the
products at issue, and therefore, as a general matter, the
abandoned proceeds should escheat to the State where the
products were purchased. We hold that the FDA covers the
instruments in question and thus that they should generally escheat to the State of purchase, pursuant to §2503.
                              I
  To decide which escheatment rules apply, we must interpret a federal statute that abrogates our precedent. Thus,
we begin with a discussion of this Court’s common-law rules
for escheatment, followed by a description of the statute
that partially displaced those rules.
                              A
  Our first case to address the escheatment of intangible
property involved Western Union money orders. Western
Union Telegraph Co. v. Pennsylvania, 

(1961). At the time, if an individual wanted to safely send
money to another person, she could go to a Western Union
office and purchase a money order. 

 Such a purchaser
would give Western Union the value of the money order
plus a fee. 

 Then, Western Union would send a telegraph message to the company office closest to the intended
recipient (or “intended payee”). 

 Upon notification, the
intended payee could come to his local Western Union office
to collect a negotiable draft, which he could cash immediately or keep to cash in the future. 

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                          Opinion of the Court

   Sometimes, however, the prepaid draft was never collected or cashed. 

 at 72–73. At that point, Western Union would endeavor to issue a refund to the purchaser. 

But if neither the purchaser nor the payee ever collected the
prepayment, Western Union would hold on to the funds until they were deemed abandoned under state law, at which
point the property could become eligible for escheatment.
Ibid.; see also Pennsylvania v. New York, 

(1972).
   Texas outlined the rules that this Court established for
determining which State has the right to take custody of
such abandoned property. 379 U. S., at 680–682. That case
involved various small debts held by Sun Oil Company, and
multiple States asserted the right to escheat the funds. 

at 675–676. To resolve the competing claims, we established that, as the primary (default) rule, the proceeds of
abandoned financial products should escheat “to the State
of the creditor’s last known address as shown by the
debtor’s books and records.” 

 at 680–681.1
   We further acknowledged that there would be times in
which that primary rule would not resolve the escheatment
question, either because the creditors’ addresses were unknown or because the State that is entitled to escheatment
under the primary rule did not have a law empowering it to
take custody of the proceeds. Id., at 682. So we also
adopted a secondary rule to apply in those circumstances;
namely, that the proceeds should escheat to the debtor’s
State of incorporation. Ibid.
   These rules were designed, at least in part, to distribute
——————
  1 We have previously described the “debtor” as the entity holding the

prepaid funds equivalent to the value of the money order, for example,
Western Union or MoneyGram, which would be contractually obligated
to pay those funds to certain recipients. Delaware v. New York, 

 (1993). The “creditors” can be both the intended payee and,
where the debtor has an obligation to provide a refund if the draft is
never paid out, the original purchaser. 

4      DELAWARE v. PENNSYLVANIA AND WISCONSIN

                     Opinion of the Court

escheats equitably. We selected escheatment to the State
of the creditor’s last known address as the default principle
because it “tend[ed] to distribute escheats among the States
in the proportion of the commercial activities of their residents.” Id., at 681. By contrast, escheatment to the State
of incorporation of the debtor (our secondary rule) “would
too greatly exhalt a minor factor”—i.e., where the debtor
chose to incorporate—when the underlying “obligations
[were] incurred all over the country.” Id., at 680. However,
we believed the secondary rule was likely to apply “with
comparative infrequency.” Id., at 682.
   It soon became clear that our primary and secondary escheatment rules were resulting in inequitable distributions, at least with respect to particular instruments, because Western Union largely did not keep records of the
addresses of the purchasers or payees of the money orders
that the company sold, as a matter of business practice.
Pennsylvania, 407 U. S., at 211–212, 214. The default rule
thus rarely applied in practice, such that proceeds from
abandoned Western Union money orders largely escheated
to New York, Western Union’s State of incorporation, pursuant to the secondary rule. Id., at 212, 214.
   Characterizing this “windfall” as unfair, Pennsylvania
filed an action that asked us to reconsider Texas’s escheatment rules. 407 U. S., at 213–215. Pennsylvania argued
that the proceeds from an abandoned money order should
escheat to the State where the money order was purchased
rather than the State of the creditor’s last known address.
Id., at 212, 214. This proposal approximated our primary
rule under the commonsense assumption that a money order is usually purchased in the State where the creditor
lives, but it obviated the need to require additional recordkeeping by the debtor. See id., at 214. While we recognized
that Pennsylvania’s proposed escheatment rule had “some
surface appeal,” we declined to modify the primary and secondary rules established in Texas, noting that States could
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                      Opinion of the Court

solve the problem of inequitable escheatment by requiring
Western Union to keep sufficient records. 407 U. S., at
214–215.
                               B
   Congress passed the FDA two years after our decision in
Pennsylvania to abrogate this Court’s common-law escheatment practices and adopt a more equitable rule, at least for
some products. 

; Delaware v. New York,

 (1993); S. Rep. No. 93–505, pp. 1–3
(1973).
   In the text of the statute, Congress declared that, “as a
matter of equity among the several States,” the States
“wherein the purchasers of money orders and traveler’s
checks reside should . . . be entitled to the proceeds of such
instruments in the event of abandonment.” §2501(3). Yet,
the statute further recognized that such an equitable distribution was not happening under the common-law rules,
to the detriment of interstate commerce, because “the books
and records of banking and financial organizations and
business associations engaged in issuing and selling money
orders and traveler’s checks do not, as a matter of business
practice, show the last known addresses of purchasers of
such instruments.” §2501(1); see §2501(4).
   Notably, instead of keeping our Texas default rule and
mandating recordkeeping requirements for debtors, as we
had suggested in Pennsylvania, the FDA addressed the inequitable escheatment problem by establishing a different
set of escheatment rules that displaces this Court’s primary
and secondary escheatment rules whenever applicable. See
§2503. It states that “[w]here any sum is payable on a
money order, traveler’s check, or other similar written instrument (other than a third party bank check) on which a
banking or financial organization or a business association
is directly liable,” the primary escheatment rule is the
place-of-purchase rule that Pennsylvania had proposed in
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                          Opinion of the Court

the Pennsylvania case. §2503(1).
   Thus, per the FDA, the proceeds of the listed financial
instruments escheat to the State of purchase upon abandonment, so long as purchase-location information is
known and that State has enacted laws empowering it to
take custody of those proceeds. Ibid.2 The text of the FDA
also explains why the inequitable escheatment problem
was handled in this fashion rather than by adopting a
recordkeeping requirement for debtors holding on to abandoned funds. See §2501(5) (observing that “the cost of
maintaining and retrieving addresses of purchasers of
money orders and traveler’s checks is an additional burden
on interstate commerce” that is unnecessary “since it has
been determined that most purchasers reside in the State
of purchase of such instruments”).
                           II
                           A
 Although the telegraphic aspect of Western Union’s
money order business has fallen into disuse, money orders
——————
  2 In full, the primary escheatment rule of the FDA states:

  “Where any sum is payable on a money order, traveler’s check, or other
similar written instrument (other than a third party bank check) on
which a banking or financial organization or a business association is
directly liable–
  “(1) if the books and records of such banking or financial organization
or business association show the State in which such money order, traveler’s check, or similar written instrument was purchased, that State
shall be entitled exclusively to escheat or take custody of the sum payable
on such instrument, to the extent of that State’s power under its own
laws to escheat or take custody of such sum.” §2503.

   Subsections (2) and (3) adopt alternative rules that apply when there
is insufficient information about where the instrument was purchased,
and/or when the State of purchase does not have laws permitting the
escheatment of such property. In those circumstances, the abandoned
proceeds from covered instruments escheat to the State where the company holding the funds has its principal place of business. §§2503(2)–
(3).
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                          Opinion of the Court

are still sold today for the same purpose: to safely transmit
funds to an intended payee.3 Many banks have outsourced
the issuance and handling of these kinds of prepaid financial instruments to businesses such as MoneyGram.
   The parties have identified four MoneyGram products as
relevant to this litigation. MoneyGram calls these financial
instruments “Retail Money Orders,” “Agent Check Money
Orders,” “Agent Checks,” and “Teller’s Checks.” All of these
instruments are products that MoneyGram creates and
markets but that are sold to customers by another entity
(either a retail location or bank) on behalf of MoneyGram.
   As a general matter, these four MoneyGram products operate in the same manner. The purchaser prepays the face
value of the instrument, plus any fee, and MoneyGram
holds the proceeds (which have been sent to them by the
seller entity) until the intended payee presents the instrument for payment. In addition, as a matter of business
practice, MoneyGram keeps only limited records about
transactions concerning these products. The seller entity
transmits information to MoneyGram that identifies where
the product was sold, among other things, but the seller
does not include in the information given to MoneyGram
the identity or address of the purchaser or payee (even if
the seller collects that information).
   The heart of the instant dispute relates to how
MoneyGram handles the abandoned proceeds of these products. MoneyGram considers two of the four products—Retail Money Orders and Agent Check Money Orders—as falling within the scope of the FDA, so it gives the abandoned
proceeds of those particular instruments to the States of
purchase in accordance with §2503. But MoneyGram treats
——————
  3 In addition to being a safe alternative to cash for transmitting money,

money orders and similar prepaid instruments have an advantage over
standard checks in that, because they are prepaid, they do not depend on
the purchaser having sufficient funds in her bank account (in ordinary
parlance, they cannot “bounce”).
8      DELAWARE v. PENNSYLVANIA AND WISCONSIN

                     Opinion of the Court

Agent Checks and Teller’s Checks (collectively, the Disputed Instruments) as governed by the common law instead
of the FDA. Because MoneyGram does not keep records of
creditor addresses for these products, MoneyGram applies
the secondary rule of Texas and gives the abandoned proceeds of those particular instruments to its State of incorporation, Delaware.
                               B
   After an audit of MoneyGram’s escheatment policies,
Pennsylvania and Wisconsin filed separate lawsuits challenging Delaware’s escheatment of the abandoned proceeds
of Agent Checks and Teller’s Checks. Invoking this Court’s
original jurisdiction to decide controversies between States,
Delaware moved to file a bill of complaint against Pennsylvania and Wisconsin. Arkansas, acting on behalf of itself
and several other States, filed a separate motion for leave
to file a bill of complaint. We consolidated the actions and
appointed a Special Master.
   The Special Master bifurcated the proceedings into liability and damages phases. The first phase (to which the current dispute pertains) focuses solely on which State or
States have priority to take custody of the proceeds from
MoneyGram Agent Checks and Teller’s Checks upon abandonment. At the second phase, the Special Master will analyze any damages. The parties filed cross-motions for
summary judgment on the issue of liability.
   In July 2021, the Special Master issued a First Interim
Report that concluded that the Disputed Instruments were
covered by the FDA. Delaware filed exceptions to that report. Then, after we had considered the parties’ briefs and
held oral argument, the Special Master announced that our
proceedings had caused him to reassess his conclusions. He
subsequently issued a Second Interim Report that concluded that many of the Disputed Instruments were or
could be “third party bank checks” and would thereby be
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                          Opinion of the Court

excluded from the FDA, which means that, when abandoned, they would generally escheat to Delaware under the
common law. Both parties submitted exceptions to the Special Master’s Second Interim Report.
                             III
  The parties are at odds over whether the Disputed Instruments qualify as “money order[s]” or “other similar written
instrument[s] (other than a third party bank check)” within
the meaning of the FDA, §2503—a determination that, for
present purposes, establishes whether the FDA or the common law governs their escheatment when abandoned. We
conclude that the Disputed Instruments are covered by the
FDA because they are “other similar written instrument[s],” and neither Delaware nor the Special Master has
convinced us that they are “third party bank check[s].”
Ibid.
                                A
  Because the plain text of the FDA applies to not only
money orders and traveler’s checks but also written instruments that are “similar” to those financial products, ibid.,
we need not determine whether the Disputed Instruments
are money orders; a finding that they are similar to money
orders is sufficient to bring them within the reach of the
statute (so long as they are not third party bank checks).4
We determine what “similar” entails in light of the FDA’s
“text and context,” Southwest Airlines Co. v. Saxon, 

, ___ (2022) (slip op., at 7), not in the abstract. And
——————
  4 The parties agree that the Disputed Instruments are not traveler’s

checks, which are a type of prepaid financial product characterized by a
double signature: the purchaser signs once when purchasing the instrument and then again when redeeming it. Accordingly, although traveler’s checks share the characteristics outlined infra, at 10–13, for simplicity’s sake, we focus on the similarities between money orders and the
Disputed Instruments, in the context of §2503, for purposes of this opinion.
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                          Opinion of the Court

in these particular cases, the Disputed Instruments share
two relevant similarities with money orders. Those instruments operate in the same manner as money orders do (as
defined by contemporaneous dictionaries and our prior escheatment cases), and they also implicate the one feature of
money orders that the text of the FDA explicitly identifies,
insofar as the Disputed Instruments escheat inequitably
solely to one State under our common-law rules due to the
business practices of the company holding the funds.
   First, the Disputed Instruments are similar to money orders in function and operation. The FDA does not define a
“money order,” so the core features of that instrument are
gleaned from a consideration of the “ ‘ordinary, contemporary, common meaning’ ” of the term. Sandifer v. United
States Steel Corp., 

 (2014) (quoting Perrin
v. United States, 

 (1979)). The parties cite
a variety of contemporaneous dictionary definitions and encyclopedia descriptions for the term, and, at the most basic
level, a money order is universally defined as a prepaid (or
“purchased”) financial instrument used to transmit money
to a named payee.5 Some of the dictionaries further indicate that a money order involves a “specified sum of money.”
Webster’s Seventh New Collegiate Dictionary 547 (1972);
see also American Heritage Dictionary 847 (1969) (“a specified amount of money”).
   These features—i.e., prepayment of a specified amount of
money to be transmitted to a named payee—generally ac-

——————
  5 See, e.g., Black’s Law Dictionary 907 (5th ed. 1979); Glenn G. Munn’s

Encyclopedia of Banking and Finance 581 (rev. 7th ed. 1973); Webster’s
Seventh New Collegiate Dictionary 547 (1972); 15 Compton’s Encyclopedia and Fact-Index 430 (1970); American Heritage Dictionary 847 (1969);
Black’s Law Dictionary 1158 (rev. 4th ed. 1968). While these sources do
not use the term “prepaid,” they describe a prepaid financial instrument
because they define a money order as an instrument “purchased” by one
party in order to transmit money to another party.
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                     Opinion of the Court

cord with how we described the Western Union money orders at issue in our prior escheatment cases. See Pennsylvania, 

; Western Union Telegraph Co., 

. And the FDA was enacted against the backdrop of the common law as set forth in those cases; indeed,
it abrogates the common-law escheatment rules that we
adopted in those cases. The statute is naturally read to reflect the same basic conception of the term “money order”
that we addressed in those precedents.
   The operation of the FDA further confirms the relevance
of the prepayment feature of a money order for the purpose
of assessing the similarity of the Disputed Instruments.
The FDA plainly regulates the escheatment of abandoned
financial products, and when financial instruments are prepaid, the likelihood of their abandonment (and thus the potential for escheatment) increases, as the holder of the proceeds of such instruments has possession of the prepaid
sums of money if the instruments are never collected or presented for payment. See Pennsylvania, 

.
Thus, the FDA naturally applies to prepaid instruments,
such as money orders, given that those instruments are of
a type likely to implicate the FDA’s escheatment rules. And
Delaware does not dispute that, just like money orders, the
Disputed Instruments are prepaid written financial instruments used to transmit money to intended payees.
   Second, the Disputed Instruments are similar to the
“money orders” that the FDA targets because they inequitably escheat in the manner that the text of the FDA specifically identifies as warranting statutory intervention.
Just as with the money orders in Pennsylvania, the company holding the proceeds of the Disputed Instruments
(MoneyGram) does not keep adequate records of creditor
addresses as a matter of business practice. And the FDA
abrogates this Court’s escheatment precedents on this very
basis. See §§2501, 2503. Consequently, the inherent characteristics of money orders are not the only relevant point
12     DELAWARE v. PENNSYLVANIA AND WISCONSIN

                      Opinion of the Court

of similarity between money orders and the Disputed Instruments; in addition, they both would otherwise escheat
inequitably under the secondary common-law rule due to
the business practices of the company holding the funds.
   The context in which the FDA arises underscores the
meaningfulness of this similarity. Our common-law rules
were permitting inequitable escheatment (insofar as our
primary rule mistakenly relied on the assumption that the
holders of such instruments regularly collected creditors’
address information), and the statute that Congress enacted in the wake of our Pennsylvania ruling details the inequitable escheatment problem. Thus, the FDA regulates
“money orders” (however that term is ordinarily defined)
not just for the sake of regulating those particular financial
instruments, but because inequitable escheatment occurs
under our common-law rules if financial instruments do not
have address information that can facilitate distribution to
the State of entitlement when they are abandoned, and the
entities issuing and selling money orders often do not keep
adequate records. The lack of related creditor address information was a key feature of the money orders that we
evaluated when we were asked to revisit our common-law
escheatment rules in Pennsylvania, 

. So it
should come as no surprise that it is likewise a key feature
of the statute that Congress enacted to displace our common-law rules.
   The inadequate-recordkeeping feature of money orders is
also derived from the text of the FDA itself. The statute
references both our observation in Texas that, “as a matter
of equity,” the proceeds of abandoned intangible property
should be spread “among the several States,” §2501(3), and
Pennsylvania’s subsequent recognition that “the proceeds
of such instruments are not being distributed to the States
entitled thereto,” §2501(4). The FDA explains that this inequity was occurring because “the books and records of
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                           Opinion of the Court

banking and financial organizations and business associations engaged in issuing and selling money orders and traveler’s checks do not, as a matter of business practice, show
the last known addresses of purchasers of such instruments.” §2501(1). The operative provision of the statute
(§2503) then adopts the precise alternative rule of escheatment that Pennsylvania suggested in the face of inequitable
escheatment caused by a company’s business practices.
   In short, the FDA’s text provides a solution for the problem of the inequitable distribution of escheats, and that solution expressly eschews requiring entities like Western
Union to keep adequate records. See §§2501(5), 2503. Inadequate recordkeeping is thus highly relevant to the interpretive question of when the FDA, rather than the common
law, should apply to the escheatment of the intangible property at issue.6
   It is uncontested that the Disputed Instruments share
the inadequate recordkeeping feature of money orders that
the FDA identifies. See §2501(1). Therefore, if the common
——————
   6 To be sure, the parties and the Special Master conceive of the inter-

pretive question before us as how to define the statutory term “money
order,” or whether the Disputed Instruments look enough like a money
order to fall within the statute. That is, indeed, one way to view the task
at hand. But the text and history of the FDA also suggest an alternative
framing. Against the backdrop of the operation of our common-law rules
and in light of Congress’s effort to abrogate them, the interpretive question becomes when should the FDA, rather than the common law, apply
to particular abandoned intangible property (here, the Disputed Instruments). And the statute’s text suggests at least a partial answer: when
“the books and records of banking and financial organizations and business associations engaged in issuing and selling” the instruments at issue “do not, as a matter of business practice, show the last known addresses of purchasers of such instruments,” such that, absent application
of the FDA, the products would not be distributed “as a matter of equity
among the several States.” §§2501(1), (3), (4). This answer follows not
only from the FDA’s codified findings, but also from §2503, insofar as the
text applies both to instruments that can be defined as “money orders”
(in light of their inherent features) and also to instruments that are “similar” to money orders for escheatment purposes.
14       DELAWARE v. PENNSYLVANIA AND WISCONSIN

                          Opinion of the Court

law were to apply to the Disputed Instruments, then the
abandoned proceeds would escheat inequitably solely to the
State of incorporation, just like the money orders expressly
referenced in the statute.7
                                B
   Delaware’s various arguments as to why the Disputed Instruments should not qualify as “other similar written instrument[s]” within the meaning of §2503 are unpersuasive.
   First up in Delaware’s attempt to distinguish the Disputed Instruments from money orders for FDA purposes is
its contention that the term “money order” in the FDA refers to a specific commercial product that is labeled “money
order” by the seller and is generally sold in low values to
low-income individuals as a substitute for ordinary personal checks. Delaware does not point to any dictionary
that includes those additional attributes in its definition of
“money order,” nor do any of our prior cases that describe
Western Union money orders mention such features. See
Pennsylvania, 407 U. S., at 208–209; Western Union Telegraph Co., 368 U. S., at 72–73. Moreover, while Delaware
offers two encyclopedia entries that suggest money orders
are “especially helpful to persons who do not have checking
accounts,”8 neither source says that the typical or intended
user is, itself, an attribute of a money order.
   Delaware also tries to highlight various ways in which
the Disputed Instruments can be said to differ from money
orders, as Delaware describes them, including differences
——————
  7 Indeed, the facts of these very cases reflect the inequitable escheat-

ment dynamic that is at the heart of the FDA: According to the Defendant States, Delaware took $250 million between 2002 and 2017 pursuant
to the common law’s escheatment rules with respect to Disputed Instruments that were purchased across the Nation, whereas, if the FDA applied, that State would have been entitled to only about $1 million.
  8 15 Compton’s Encyclopedia and Fact-Index 430 (1970); see also Glenn

G. Munn’s Encyclopedia of Banking and Finance 581 (rev. 7th ed. 1973).
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                      Opinion of the Court

with respect to face values and customer use. But Delaware
never explains why those purported differences are relevant to our assessment of similarity for FDA purposes.
Since money orders and the Disputed Instruments are comparators that are not identical, they are likely to be different in some respect. The real question is which differences
and similarities matter. And none of the differences Delaware identifies relates to the statutory text or ordinary
meaning of a money order, nor do they otherwise undermine the analysis of similarity we outlined above.
   Undaunted, Delaware attempts to make the differences
it identifies seem more material by proffering an alternative vision of the FDA. In this regard, Delaware asserts
that the FDA was really an effort to dissuade States from
adopting costly recordkeeping requirements, the costs of
which might then be passed along to low-income consumers. Its argument is that, because the Disputed Instruments are, when compared to money orders, generally
larger-value instruments that are typically purchased by
consumers who can more easily absorb any additional
recordkeeping-related costs, those products simply do not
implicate the FDA’s core (cost-related) concerns and are
thus not “similar” to money orders.
   But the text of the FDA bears no relationship to Delaware’s cost argument. Indeed, the statute says absolutely
nothing about the rising costs of money orders for low-income individuals. See §2501. “[T]he cost of maintaining
and retrieving addresses of purchasers of money orders and
traveler’s checks” is only mentioned to explain why a mandatory recordkeeping option (which we had suggested in
Pennsylvania, 

) was not selected as the
statutory solution to the inequitable escheatment problem
that the FDA plainly addresses. §2501(5).
   Nor does it matter that there would be no inequitable escheatment with respect to the Disputed Instruments if
MoneyGram did not factor into the equation, as Delaware
16       DELAWARE v. PENNSYLVANIA AND WISCONSIN

                          Opinion of the Court

maintains. In this regard, Delaware argues that the Disputed Instruments do not implicate the concerns underlying the FDA because the banks that sell the Disputed Instruments generally do keep adequate records, and
therefore States can avoid the escheatment problem by
passing laws requiring those banks to transmit their records to MoneyGram and requiring MoneyGram to keep
those records. But the FDA regulates escheatment, so it is
the recordkeeping practices of the entity holding the funds
that is relevant. Here, that entity is MoneyGram, not the
banks. MoneyGram has the recordkeeping practices identified as warranting intervention through the FDA, see
§2501(1), and the statute contains a solution to the escheatment problem that MoneyGram’s ordinary business practices cause, see §2503.
   Finally, Delaware suggests that §2503 must be read narrowly in order to avoid both creating surplusage and sweeping in all sorts of financial products that Congress did not
intend to cover. This goes too far. Although Delaware argues, with some merit, that broadly defining a “money order” as a prepaid instrument used to transmit money to a
named payee would render the statute’s separate references to “traveler’s checks” and “other similar written instruments” superfluous, we need not define “money order”
in order to conclude that the FDA applies to the Disputed
Instruments, since it suffices that the instruments in question be “similar” to a money order; they need not share its
definition. And if “other similar written instrument” is interpreted with reference to both the inherent qualities of a
money order and also the recordkeeping concern that the
FDA expressly identifies in the text, as discussed above,
then the scope of the statute is properly cabined.9

——————
  9 It is true that, so interpreted, the status of a particular category of

instrument as falling within or outside of the FDA’s scope could shift if
the company in possession of the funds changes its regular or ordinary
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                           Opinion of the Court

                             IV
   Delaware argues that even if the Disputed Instruments
qualify as “other similar written instrument[s]” within the
meaning of §2503 they are also “third party bank check[s]”
and, as such, are expressly excluded from the FDA.10 The
Special Master, too, ultimately adopted a version of this argument; in his view, the “third party bank check” exemption applies to any Disputed Instrument on which a bank is
liable (in addition to MoneyGram).11 Neither Delaware nor
the Special Master has provided a persuasive reason for
concluding that the Disputed Instruments are “third party
bank check[s]” within the meaning of the FDA, and the
drafting history of the statute further confirms that the
——————
business practices. But, given this unusual statute, that is not an anomalous outcome. Both Congress (in the text of the FDA) and this Court (in
our precedents) have indicated a preference for the equitable distribution
of escheats, and our common-law rules can result in equitable escheatment if the business practices of the company possessing the funds suffice. The FDA is a recognition that, sometimes, our common-law rules
do not achieve that outcome, i.e., it is the equivalent of a statutory “BandAid” if our common-law rules fail. In other words, the FDA is a statutory
fix that need only kick in when, as a matter of business practice, the
company holding the funds does not generally collect the relevant address information, such that inequitable escheatment occurs. The text
and context of the FDA—and especially the phrase “other similar written
instrument”—connote that flexibility and do not suggest that the statute
only and exclusively applies to a static category of products.
   10 The Special Master concluded that the “third party bank check” ex-

emption modifies only “other similar written instrument” and does not
modify the terms “money order” or “traveler’s check.” Delaware does not
challenge this conclusion.
   11 When they appeared before the Special Master, the parties and ex-

perts disagreed on the meaning of “liability,” and no one has proffered an
agreed-upon definition to this Court. Before us, Delaware does not dispute the Special Master’s conclusion that MoneyGram is “directly liable”
on the Disputed Instruments. When referencing a bank’s liability on a
MoneyGram product, it appears that the Special Master was using the
term to describe a situation where a bank—as opposed to only
MoneyGram—also has an obligation to pay the prepaid instrument upon
proper presentment.
18       DELAWARE v. PENNSYLVANIA AND WISCONSIN

                          Opinion of the Court

sweep of that language is not as broad as the definitions
that Delaware and the Special Master have offered. Therefore, as explained below, we do not accept the contention
that the Disputed Instruments are carved out of the statute
per the “third party bank check” language.
                               A
   First, however, a caveat: We readily admit that discerning the meaning of “third party bank check” in §2503 is
tricky, because the FDA does not define that phrase, and,
as far as we can tell, it does not have an “ordinary, contemporary, common meaning.” Sandifer, 

. The
parties have not pointed to any contemporary legal or financial source that defines that precise term. And the FDA’s
“third party bank check” language confounded all three experts retained in these cases, each of whom agreed that it
has no traditional meaning in either the legal or the financial realms. Notably, the Special Master valiantly attempted to bring clarity to this term, adopting three different definitions of “third party bank check” over the course
of this litigation. Ultimately, between the parties and the
Special Master, we have been offered at least six disparate
definitions of the term.12
   In the midst of this uncertainty, Delaware insists that the
term “third party bank check” means a check signed by a
bank officer and paid through a third party. Not surprisingly, that definition fits the Disputed Instruments like a
glove, given that they are signed by bank employees and
then ultimately paid through MoneyGram, a nonbank third
party, when presented. But Delaware provides no support

——————
   12 Those definitions are: an ordinary (nonprepaid) check; a check sold

at a bank and paid through a third party such as MoneyGram; a check
issued at a bank indorsed to a third party; a check on which a bank is
liable that was issued at the instance of a third party; a check on which
a bank is liable regardless of whether a third party is involved; a check
which is drawn on (and only drawn on) bank accounts.
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                         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.13
——————
 13 We are not opining today as to whether the FDA applies to cashier’s
20      DELAWARE v. PENNSYLVANIA AND WISCONSIN

                        Opinion of the Court

  The Special Master also failed to provide an adequate explanation for why bank liability relates in any meaningful
way to the escheatment rules that the FDA adopts. That
explanation seems crucial because the parties appear to
agree that banks can be liable on money orders themselves,
and, as previously explained, far from being excluded,
money orders are expressly covered items in this statute.
This incongruity makes it hard to conceive of the bank-liability attribute as the tipping point for whether a financial
instrument qualifies as a “third party bank check” for FDA
purposes. Similarly, if we were to agree with the Special
Master that bank liability is dispositive of a “third party
bank check” designation, then presumably any draft on
which a bank is liable would fall outside of the FDA—a result that reads the term “third party” out of the statute.
  The Special Master’s reasoning further fails to account
for the nature of the Disputed Instruments, which do not
appear to qualify as “bank checks,” at least not in the traditional sense of that word. According to the parties, a
“bank check” is a check “drawn” on a bank’s own account or
by a bank and on a bank (either the same bank or another).14 That does not describe the Disputed Instruments,
which are drawn on MoneyGram’s account, not a bank’s account.
  Consequently, nothing in the reasoning provided by Delaware or the Special Master persuades us that the Disputed
Instruments, which are otherwise “similar” to money orders
for FDA purposes, should be deemed “third party bank
checks” within the meaning of §2503.
——————
checks, certified checks, or non-MoneyGram teller’s checks because the
dispute before us does not concern those products.
   14 See L. Lawrence, Making Cashier’s Checks and Other Bank Checks

Cost-Effective: A Plea for Revision of Articles 3 and 4 of the Uniform
Commercial Code, 

, 278 (1980); G. Wallach, Negotiable Instruments: The Bank Customer’s Ability To Prevent Payment
on Various Forms of Checks, 

, 584 (1978).
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                      Opinion of the Court

                                B
    Nor does the legislative history support Delaware’s contention that the Disputed Instruments constitute “third
party bank checks.” “Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambiguous text.” Milner v. Department of Navy, 

, 572 (2011). In the instant
situation, while the meaning of the phrase “third party
bank check” is subject to myriad alternative definitions and
is generally unknown, the phrase was inserted into §2503
under well-documented circumstances. And those circumstances further support the conclusion that, whatever
“third party bank check” is meant to mean, the Disputed
Instruments are not exempted from the FDA under that
provision, as Delaware maintains.
    Specifically, during the time in which Congress was mulling a draft of the FDA’s provisions, it solicited the views of
the Treasury Department, and the agency’s general counsel
responded. He wrote a letter stating that, although he did
not object to the adoption of the bill’s escheatment rules, he
“believe[d] the language of the bill [was] broader than intended by the drafters.” S. Rep. No. 93–505, at 5 (Letter
from Edward C. Schmults). According to the letter, agency
counsel was concerned, in particular, that the phrase
“ ‘money order, traveler’s check, or similar written instrument on which a bank or financial organization or business
association is directly liable’ ” could be interpreted to cover
“ ‘third party payment bank checks.’ ” Ibid. Thus, he recommended excluding “third party payment bank checks”
from the FDA, ibid., and Congress subsequently adopted
this recommendation, dropping the suggested word “payment” in the process, id., at 6; see also §2503.
    Reliable sources indicate that the “third party bank
check” language was not supposed to be a significant addition. The Senate Report described it as a mere “technical”
alteration. Id., at 6; see also 120 Cong. Rec. 4528 (1974)
22      DELAWARE v. PENNSYLVANIA AND WISCONSIN

                      Opinion of the Court

(statement of Com. Chairman Sen. Sparkman referring to
the insertion of the language as a “minor” change). Thus,
that statutory phrase is reasonably viewed as merely clarifying the intended initial scope of coverage (i.e., as an effort
to better demarcate the boundaries of a statute that regulates escheatment of “money order[s], traveler’s check[s],
[and] other similar written instrument[s],” §2503), rather
than as an express exemption that accepts that items of this
nature would otherwise qualify for regulation under the
terms of the statute and specifically undertakes to carve
them out.
   In any event, given the history and text of the FDA, it
would be strange to interpret the “third party bank check”
language to exempt from the statute entire swaths of prepaid financial instruments that are otherwise similar to
money orders in that they operate in generally the same
fashion and would likewise escheat inequitably pursuant to
the common law due to the business practices of the company holding the funds. At the very least, reading the exemption that broadly would imbue “third party bank check”
with a meaning that far surpasses a “technical” change.
And it would also risk rendering largely ineffectual the
FDA’s framework for displacement of the common law, as
necessary, to ensure equitable escheatment.
                         …
   When a financial product operates like a money order—
i.e., when it is a prepaid written instrument used to transmit money to a named payee—and when it would also escheat inequitably solely to the State of incorporation of the
company holding the funds under our common-law rules
due to recordkeeping gaps, then it is sufficiently “similar”
to a money order to fall presumptively within the FDA.
Such is the case with the Disputed Instruments. And nothing in the parties’ arguments, the Special Master’s Second
Interim Report, or the record in these cases persuades us
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                          Opinion of the Court

that the Disputed Instruments should be deemed “third
party bank checks.”
   Accordingly, we adopt the Special Master’s recommendations in the First Interim Report, along with his initial proposed order, to the extent they are consistent with this opinion.15 We also overrule Delaware’s exceptions to the First
Interim Report and remand this matter to the Special Master for further proceedings consistent with this opinion.16

                                                       It is so ordered.




——————
  15 Because we decline to adopt the Special Master’s Second Interim Re-

port, we need not address the Defendant States’ argument that we
should not entertain the Second Interim Report.
  16 In light of our conclusions in these cases, Pennsylvania’s alternative

request that we reconsider the common-law escheatment rules is moot.