we do would you like to reserve some time yes i'd like to reserve five minutes ok that will be granted and you may proceed when your ready in delaware versus new york eight look can i ask you about that specifically the screen kelly because i'm looking at page five of your opening brief and you say that that primary rule gives a street authority to the state of the creditors last known address as shown by the debtors books and records but rd your you've let your lay out the three rules from the texas trilogy if the debtors records disclosed no address for creditor the secondary rule awards the right to a steep to the state in which the debtor sick or prated now my question for you is is that a full and accurate statement of an another state that is the state of residence of the creditor has in a steep law that'll make a significant difference in whether or not what delaware is suggesting is its to do here is really as outlandish as you claim it is well xander hochul fifty states and the district of columbia and the territories all have a state statutes now so that really doesn't come into play yes but in marathon which you know well this court held that when a state exe has a statute but exempt certain property the holder has a right to that property and another state la act would be interfering with the sound entity of the state that actually has is to jurisdiction over the property if it were to then claim that property you know i try to think back and remember stuff  states that do not provide for his cheap in a business to business debt that means that the kind of debt that city issue will make a difference in whether or not delaware some title to claim it or not correct ok and if that is the case then what is wrong with delaware saying look we need more information from you to understand whether we've got a claim to this or not i made it his statement my answer before i didn't understand your question exactly if you are asking me whether delaware has a claim to property with for example or is address in ohio that has a business to business exemption whether delaware actually can claim that property the answer is no according to the marathon opinion and new jersey re that you'd have to acknowledge that and if we took it as siemens that it's not siemens money right seem is got no claim to it it's it belongs either to the person to whom it was oh or it belongs to the state where if that person does a step forward where there that person or business exists or if that person can't be found so i moved to florida but that doesn't mean delaware can follow me there and tax my hand with i don't ask i'm not asking you that i'm just asking you how the texas trilogy works going to texas trilogy works doesn't it work straight me out if i'm wrong but i thought i just laid out exactly how it works if that if they live in ohio ohio gets it if they live in ohio and ohio doesn't provide for a steep enough that but the business that's holding that debt does provide for it excuse me that the state where they are incorporated does provide for that a statement then that state gets it isn't that isn't that there's not some someplace else right if if this if state x doesn't provide for the estate meant then the state of incorporation candace cheated and and in no circumstance is the sure we can't overrule the supreme court so if we had to stick with what the supreme court said do you acknowledge you were not acknowledge that the wave the city the trilogy works is the way i just outlined it don't take me is mood there is no situation where that will arise and it interferes with the sovereignty of the state that might want companies to incorporate in their state just like states do when they don it interferes with their sovereignty and their decision to have an estate statute and exempt the reporting wire and or certain kinds of property so you're just to be clear your legal position is there's no state  new union which exempts any kind of property they might think they might have different reporter are nuts but there's not a state or district in the whole country that exempts business property for example business that just doesn't exist that's what you're telling us now right because you're saying it's mooted so what you're saying is that eventually can never arise that's what i'm here in my hearing it right more time what you're saying is there is not a state in the union that exempts business property or exempt some other category property your assertion your legal position here today is the texas trilogy the possibility of a nonis cheating state no longer exists correct and ok so if we if we found one state where that was not the case your argument falls apart right well respected that ok and if it falls apart with respect to that state then the question of where what kind of debt you've got  now we're talking about reporting the only way to know is that for them to be able to inquire and find out from you what kind of property what kind of debt what state had to find out what kind of debt ok but they've already done in this case in this case they have already identified all of the debts the only thing left is for siemens to prove that it's not unclaimed property and the state wants to audit property delaware cannot claim under the texas trilogy is it in the record that they do that you've identified the kinds of debt that is but whether it's business to business or other kinds of debt that's in the record it is in the record and the list of items that against a presumption of abandonment or checks and credits with owner addresses in other states that whether they're and whether they are i don't think property or not general can't claim them even if they are and not them all the ones that have a business name and address are identified they are all identified and the record shows how much of that is business to business so this is not about quoting to see if something is business to business exempt it it's about quaternion property for the purpose of holding up siemens for a settlement they terminated the expedited autumn election not because siemens didn't answer all the questions they gave them everything the audit reports they have showed the most delaware complain and all of the items the auditors identified but they still but they told us they told us they admit it they're not going to end the audit the amount that they show was an amount that the temple in one case that shocked the conscience violated due process because it was an estimate based on property delaware cannot claim because the owners addresses were in other states the only reason this article isn't over after eleven years is because delaware is holding us up for a settlement they don't want another temple in one case so they refused to give us a demand they and yet delaware kept saying no no you've got to defend yourself against the presumption of abandonment to all six thousand checks and credits with your address is in other states that delaware cannot claim under any circumstance because the primary rule allows the state of the address to clean it and your and your assertion is under any circumstance that that depends right on your having disclose all the information that would eliminate any argument that this is not a student will property in the state of residence they have already gotten the entire there wasn't a single outstanding seems to say the examination has not been completed so what's left to do so the reason why the examination has not been completed is because siemens itself elected to insisted in fact that the state take the six thousand items and as the universe and the state has requested that siemens research and remediate those items obligates them in the law to do what you're saying is doing that the situation is this is a circumstance of siemens own making so what they have done in saying we're not going to do anything with us is they are creating a scenario where there would be estimation and then they are complaining that the estimation is unlawful so as a circuit and let's start with this who's got the burden of proof who's got the burden to prove this is  the property that is in the it titled to delawareans it is entitled to a sheet property that is in this foreign it is entitle to a sheet property it is a known address yes so straightforward question i think do you have the burden to prove its is gina bull or to siemens have the burden to prove it's not a stupid it depends on the property and who is it is addressed to your honor wait the burden shifts based on the kind of property it is the burden is that the that's that siemens provides documents to the state of delaware and it's on the basis of the documents fate has no way of knowing without seeming providing the documents  question my question isn't whether you're entitled to enquire what i don't think and i don't think anybody's arguing that there's not some legitimate scope for administrative subpoena in fact finding the question is at the end of the day who's got the burden to prove that the property the universe you're talking about is a suitable or not and it's the state doesn't the state owned that burden i believe it's siemens has the burden to prove that it is not unclaimed property after the state finds an indication in the records that it is unclaimed property ok now you're talking about a burden of production archer you're saying once the government says this is unclaimed property then the burden of production with respect to evidence ends up on siemens yes you're not demonstrate but at the end of the day you've got a show that's a suitable property i think i might be wrong about it that's why i'm asking the question your honor the reason why i keep turning the question around on the question of documents is because it's not a simple a simple as saying the state has the burden the state is in a position where it must ask the holder of the unclaimed property for information for the state to be able to ok well let me ask you this when does it stop right because you've heard miss kelly kelly and you've seen the briefing and we have two and a tale it tells is of extortion of behavior by the state of delaware using a self interested rd party to come in and give wildly inflated estimates based on a universe of information which clearly show that north of ninety percent ninety five plus percent of the people being talked about here don't live in the state of delaware and then on the basis of that saying now this is you know as tens of millions of dollars and interest and penalties are going to run while you fight and go ahead make us an offer that's the way they frame it it's instead a saint well they they did it they made it up they created the problem which we've heard we've read in what else can you point to in that description of how things play out here that that is that is an inaccuracy which you know that how should that leave us with a false impression what they've described your honor what's printed not what's critical here to understand is that that is the one sided as you put it history of this of of what kelly has alleged in this case so that's a complaint and that is the facts as a seaman's has articulated them they are not the facts as the state sees them and the state has not answered the complain actually inaccurate when they say we've given them these six this universe of six thousand delaware delaware is owed you know like five bucks i'm exaggerating for effect but that's sort of the the indication they've given is that you there's a handful of delaware holders here delaware creditors here everybody else is out of state and on the basis of that even despite the texas trilogy they're saying none of these other states would is cheat delaware says that we're entitled to it all give it to us all and when they say no you're not entitled to us all all of that the answer they get back is will make us an offer now you just said that's not the facts we're set not the facts your honor they have identified a universe of six thousand items that have not provided all the names and addresses and from ation that's needed for the state to determine whether there are delaware address property and there whether there is foreign address whether there is a known the reason why we need the information that we have been seeking from mr green kelly and from siemens is to be able to determine what among that is the sheet of bullets in state of delaware all that information is information they have she's just flat wrong it's incorrect or honor because what do you lack so we so that one of the critical points here that is not yet in the in the record below because we have not had a chance to file an answer is that we are aware from not only from records that siemens has provided but also from records provided to the state from whistleblowers that there is information that has not been provided to the state of delaware and there's a significant lack of reporting on the part of siemens one of the entities that is filed suit has and has did never filed prior to two thousand and nine and the other one has a limited filing history and why that's important we're sort of sweep spun out of where i thought we were a minute ago which was we're talking about a universe of six thousand  folks right writing say we gave them all the information everything with respect to that success and you're saying no they didn't correct and i'm also saying that in addition to that there is a it is the state belief that there is more than that and that there is a due to the historical lack of reporting and based on the size of this entity and siemens both companies that have filed suit here it is the belief based on experience in the a sheet arena that a company of this size and complexity likely has much more available that  you can you can go after these folks for eleven years and you can then say we're sure they're small war and just keep going is there no stopping point your honor the rea is articulating actually is the record it is it is not what the state with the state were to answer today many of the allegations in the complaint would be met with denials so the record keeping issue is not one for the six thousand items and when it comes to the remainder of the examination this examination was implemented in two thousand and nine and the lookback is based on the prior from the initiation of the examination i don't know if i've answered your question your honor but you have can i ask you a question about new jersey retail and about the district courts distinguishing out if if i understood the district court rectally to court said that this case was in contrast to the plaintiffs in new jersey retail because siemens is not currently in the position of having to choose between prosecution or fines for noncompliance versus churning over funds that was injunction is tonight if the state enforces chapter twenty five issuers must either face prosecution fines from compliance or turn over in cash remain value in other words we framed it specifically as contingent that is we didn't say they are facing we said if the state enforces if the state enforces then the issuers will face prosecution of fines for noncompliance well that seems to be precisely the circumstance here isn't it the question that this report said well you're not facing that they were facing in new jersey retail either it was this threat of that happening if enforcement happened that steps here to get to the point where we are where new jersey retail was so in this instance the court has not or the i'm sorry the state of delaware has not issued a determination of unclaimed property to the state of delaware from siemens and you are you are telling them and they save tell now again if there's a factual disk skewed here i guess we'll hear about it but they say they told us the cystic lea no interest  and finds they're on the table that's run and while we're fighting that's that is out there that the meters run in for you so make us an offer so your honor i think that you will get a denial of those facts as articulate is not happening we are not going to be seeking penalty and interest for the time this is in litigation your honor that right now we don't even know if there's going to be a determination that siemens has a liability at all and it's just just can you answer that question or can you say this state's forgoes and will not seek interest and penalties for the time that this matters under litigation i cannot say that as i'm counting here that you know then so then the presumption i think is it is happening because that's what the statute provides for and if interest and penalties are running so why isn't this exactly like new jersey at retail because not only has the court has the state of delaware not issued a finding against siemens but it is possible that it is that there would be zero finding although we do not think that's likely it is going to jersey retail too because it enters the retail the question was if today in force and and one more point your honor is and this is essential to it is that when we're talking about fines and interest or interest and penalties we're talking about monetary harm we're not talking about what was at issue and new jersey retail which was no it was  asking whether i think judge directors question was whether they can recover interest and penalties should i say if they the answer to that is there could be a refund from the state of interest and penalties requested get it back from you can they because you're the state of delaware and will say we got sovereign immunity just like new jersey retail right that's right your honor we do have our unity then then we're not any different than new jersey retail are we that's the irreparable harm that was identified in new jersey retail you can take the money and they can never get it back it is if the quote if the question is whether the state can be sued for monetary damages the answer to that is no because of sovereign immunity that is not waived if the question is whether they can get it back if they're wrong the answer is that st of all it's speculative because it hasn't happened yet but nd of all it is potentially refundable i think we even said that in our briefing u yes your honor just a moment well if you don't have it mean perhaps i did i mean i'm just i'm looking at a large document so i'm trying to determine what is the  perspective it is that is what the court should be determining and it should end there because below the district court never reached the issue of the likelihood of success on the merits and it is only with the determination of likelihood of success on the merits does the the issues of the interlocutory order like everything that was brought into the motion to dismiss  not been dismissed and the district court never got into the arguments that miscreant kelly is putting forth to this court as to what should constitute the irreparable harm or the imminent  pardon me the merits and irreparable harm is definitely in front of us right irreparable harm is in front of you your honor but one of the issues that we have in this case is that  miscreant kelly is bootstrapping merits argument into the irreparable harm argument by talking about the procedural due process claim that was dismissed by the time the court got to dealing with the irreparable harm so it's there again there are several layers here you have a motion for a preliminary injunction that the court the district court denied on the basis of lack of imminent risk of irreparable harm and never reached the merits evaluation and in order for miss green kelly's merits arguments to make it back before you you would have to look to the already dismissed claims of the district court so the district court had several claims that were only on a motion to dismiss in the light most favorable to miss green kelly on a record that only includes her allegations and nothing from the state and those claims had already been dismissed by we necessarily has to have some factual background to understand it against and we necessarily have to take the allegations of the complaint at face value for assessing that in other words maybe having to say ask in the same  as she garrus was aren't these things tied up in a way that take get what everybody agrees is in front of us which is the determination about irreparable harm we have to accept at least for the purposes of this discussion not in a way that would bind future fact finding by the court or a fact finder down of the fact under down the road but we have to accept some factual background and it stands as the merits that  said poorly but you get what i'm trying to ask is do i i do understand what you're asking your honor i think the problem there and i agree that that that is how it's how it seems to be framed here but i don't agree that the court in extremely connected and the reason for that is that this circuit has a rule that irreparable harm st of all is not just presumed right and this court the circuit also has a role that you can't just have a rep you can't have the merits qualify for what is irreparable harm so there are two different products and having not reached having not met the pronk of one well now i think we're about out of time i'm asked my colleagues if they have any other questions judge jordan any more said for example one of the entities had never filed a claim property report they filed the voluntary disclosure agreement request and estate denied them even though the regulations didn't allow them  stated you say you're not making this up because green kelly we have a we we have a very pointed factual disagreement you've said there's no information in that you stick with the universe of six thousand  say we gave them every piece of information that could possibly be needed to understand where these people lived or that there was no way to know where they lived and what kind of debt it was there is nothing more that they could inquire about remediation has been provided by siemens and where the remediation provided has been deemed to fish further it appears the ms is refusing to research open items for which the owners address this matter participating states she goes on to say  that was the only thing open and then the status year when she terminated the exam to the same thing so i left and so maybe i just don't understand what all that means but help me understand i was thinking you were going to read something that said and we acknowledge you have provided all the information we need with respect to the six or nine thousand but that's not what you read you what you read to me something that said hey we think there are still open information we need and you're refusing to get it that's what it sounds like you read now information yet doesn't remediation doesn't remediation mean something like you've given us information but now if this isn't information that should show it comes to us tell us your further information items with our addresses in other states if you don't do that we are terminating you and then in fact they do it well wait a nd you don't know you just i didn't hear that the part you said about six thousand with owner addresses in other states i didn't hear you read that part well because they attached a list to the letter and the list was six thousand items with her addresses in other states or items we simply proof as to the existence and amount of the property and it's abandonment is satisfied by showing evidence of the unpaid debt or under start obligation and passage of the requisite period of abandon it is the spirit of truth of the state to identify and that's what they did the list that i'm describing of six thousand items has the name and address but the check number the amount every one of those six thousand  dormant and they say it's abandoned if you if you voided check after thirty days so this presumption of abandonment we have to rebut it in order to reduce the liability but the liability stay at the amount in that report that the auditors provided they said it in their briefs they said to us in letters attached to the complaint that is the only thing open the absolute only thing we have in the affidavit remember were a motion still on the audits even in the temple in one case only one property type was at issue but the state stopped the rest of order so after six months of doing the same doing nothing they sent a letter saying we're going to keep going with the the elements of new jersey reach our merchants it's a likelihood of success on the merits of preemption we face penalties mandatory interest of up to fifty percent twenty five percent is and the issue that he never mentions ever in kelly you started this by saying we're all the same as new jersey retail and then you started by talking about likelihood of success on the merits likely to success the merits is not something that the district court addressed at all right hold us up for ever potentially by rap us up with three million dollars that we can't spend the companies are buying and selling each other we have to disclose this if somebody wants to buy we got to disclose this they're going to keep us open  limitations causes irreparable harm to and that's something the court never mention the court also didn't mention the irreparable harm we had sucker from being held up i we've got we've got one side of this case saying they haven't given us everything and we've got you saying we gave them everything so you know we're going to have to duel syria but when you say this is a purely legal issue just from the discussion today saying that's not the facts so should the district court if we agreed with you that the judge here very capable district judge just misunderstood new jersey retailer got it wrong and that there are there is a showing of the reparable harm then why why would we not send it back to st now you need to take a look at the record assess the the factual dispute which exists and make except that we said you're right about irreparable harm she didn't talk about likelihood of success and you apparently have a dispute a fact because you're both saying different thanks to me and the other two of us here and they because three of us who are he wildly different assertions about the facts well i shouldn't speak for my colleagues it certainly seems like alternative universes so why wouldn't the district court be the right place to sort that out  common big us state statute is preempted by federal law can be decided as a matter of law and you and if there is true that new jersey beach on her chance has been satisfied because penalties and interest she hasn't said they're not going to issue them and the statute says they shall issue the interest and they shout it's issued to man and there's a high likelihood of success on the merits of the preemption claim a court would have to go back that's why there's pending jurisdiction because there is a high likelihood of success on the merits of the preemption play and she got the rightness issue totally wrong she said the reason marathon doesn't doesn't say it doesn't apply is because marathon six dealt with a challenge to the audit of a company that wasn't incorporated in delaware that's not what it was about i know i drafted the complaint i wrote the and this court and judge jordan you authored the the opinion in that matter and you say it is right you said it's right because we're challenging the very authority to audit property that delaware cannot claim under federal law determined that seeing as is the holder they've already determined that the addresses are in other states or other states have a store authority over them so they're done with that the audience over i mean actually page five  beyond that point is that not a factual question yes but it's in the record the records don't but letterman's the admissions by the defendants that they are done to you i understand i understand i understand your point is  abandonment of the six thousand items where terminating your audit we're not going to and we want a settlement and then the items they attach to the letter are six thousand items with her honor addresses and other state excellent we would ask the parties though to order a transcript you can touch base with the clerk and i'd like to we'd like the parties to split the cost of the transcript all right we'll take the case under advisement