threshold question to the other and it may be that the we assert that the district court erred in ruling that a private party like standing to enforce the the federal law on some fraud might be alleged mean there is no case out there that anyone has cited that says that ape party racks standing merely because they're alleged to have engaged in some fraud so it could be that your you got true but it is possible only because in any have this court held that if it is evident that the result of the process must lead to conflict preemption defined logic took over the process itself cannot be preempted and that a complaint seeking the result would not raise a right you sure and that that is that first step where you say well it's it's clear that we do have you know that assumes that first step that the second step can't be right if the first step goes the way you say ghost but that's assuming the question we're here to discuss and that you have throughout characterize the texas cases as posing so explain why you don't fail at the first step because i think there argument to be not framed in these terms but i think there are going to be we're allowed to figure out what the debtor creditor relationship is they want to understand the character of the crazy relationship nothing in fact in freehold cogeneration the court held that that inquiry and here that encourage was simply a matter of law of contract interpretation the relationship the contract between so that you if you paid for something right no matter what's actually going on in the real world doesn't matter said is that the position pays you could if you had the of the gift card and the consumer who buys it that is the relationship that sets up who is the debtor and who is the creditor and once that was determined but that's a little variable i mean you know determine for you but not for the other side jersey at page six seventy five that instead of all law it was determining which state would have jurisdiction over the property and in delaware versus new york at page four ninety eight the court said it was to review at this point and that itself seems to turn on a question of the documents in the record with a dispute between the parties that really is about the scope of discovery and isn't there a mechanism in even on that question at least in the sense of exhaustion even on a motion to dismiss the record can include the documents that are referenced in the complaint here the record is complete because the contracts merchants whether or not the the existence of the entity was somehow fraudulent or a sham issue was could be make presumptions that would put the money back in new jersey didn't hear it we're dealing with  different what seems to be a different point petula i think they did it in the end you're saying delaware is a got a bunch of greedy state bureaucrats or just want their hands on the money and they say in is we ought to be able to look behind a paper facade at least a little bit you can't tell us we can't do that so what's your authority for the position that if you give them a piece of paper all bets are off  with something then it's beyond reach to look past that well the authority is that the federal law kids a state jurisdiction there are only two states that have jurisdiction over property under the federal law the state of incorporation state of our state claiming under the secondary role and the state of the owner's address under the primary role that it i mean what they want to do is create multiple liability hey i live in indiana on the corner  half my house there's a speedway on a marathon kitty corner they sell gift cards there they can be redeemed there why can't indiana has a law like eleven eighty four and say hey you incorporated in ohio to well i don't i don't understand we're not we're not connecting this green kelly i don't understand their argument to be that you can't organize your fears the way you rot and in fact organize in ohio so as to avoid steep i take their argument to the release of the most pointed argument to be be have an organizational structure which is not real world that we are entitled to abide because if you look behind it case from the superior court that some call it comply l l c and say we're having to deal with this there's bierce in effect corporate fraud going on that's completely different than saying well he and it could pass a law that ignores the high well first of all they are auditing and they have been hoarding for nine years the delaware companies but that's a thing for the companies have the property yet they don't find it yet that point is a different point which is they're abusing the process but it's not big can't engage in the process you first argument here and the one i'm proud of press you on is they cannot engage in the process at all and i'll try to test the ten ability of that with you if you're if you real argument is they've abused the process that's a different thing right yes ok but it creates context because here the context is and the just a court properly looked at the context i mean the temple in law i thought it was that and further investigation is perfectly appropriate but here you produced rights of background documents like bank account statements and signatory information contract itself is a few as a matter of law to establish who is a bona fide holder in delaware this is new york the supreme court determined that the nominees the brokers w purpose of the federal law which is really answer the question is yes your position is we hand you the contract and that's enough because that is the contract that establishes as a matter of law the relationship between the issue  they have that paper over that's it because there's no such thing as fraud in a street well it's a public matter whether a company is incorporated in the state how compliant is not an estate case it's a false claims act case and the allegation there is different and here the allegation there is that the delaware companies issue the good cards and kept the property and then try to get through contracts transfer the liability to a third party that's not n you know in the record although it doesn't could have been produced in the district court to this point but shows that you put it that the fun the relationship the functioning  that is where it stops and decides who the debtor is with the creditor isn't saying no state has authority over the property it's just not delaware in this case because the debtor is an ohio company without addresses and the creditor is the consumer under a simple contract between them but if we don't agree with you on that point what would be the appropriate next step what would you ask us to do as as your backup or well i would ask that you rule and reaffirm that a private party has standing to enforce the texas trilogy of cases against the state and it just you and that undertake delaware under a new jersey tell her chance reaffirm that and issue were becomes one of process right then the question becomes a better point your argument is that that legal framework is established you are under more consult their own cases they rely on you delaware are abusing the process yes ok can you give us your position on how how all three egos are treated under the texas is really more like you're looking at kissing the corporate veil and that only comes into play when the debtor doesn't have the funds to make good on a debt and so they say hey you deliberately made sure you didn't have capital to pay the debt and so now we're going to go to your parent because they really control you that's not this case you don't have a situation where anybody's away just that these gift card companies can't honor their agreement with the consumer which don't apply in use realm so that individual entities private entities could abuse and cheat and be fraudulent in their use of corporate forms and nobody can look at that because that's in the end that's what you're saying and yet you're saying alter ego analysis has no place here and we can do whatever we want don't look further at what authority do you have for that principle so certainly it's not from the texas cases they would say frauds ok but you're taking the cart before the horse because the state might arguably have an alter ego argument yet when it was already determined they  right is it the entity in ohio where is it actually delaware need because there is no real entity in ohio because the ohio want to use only the alter ego of the delaware company that is the question at the very first step as set out in the three part  with authority over the property has been determined and and that's i guess where we're running in a circle now because you're saying that that which state question is decided strictly on the face of papers and they're has authority and jurisdiction over property is very straightforward that there's no room for effect in creative if delaware says i'm taking this property another state can also say i'm taking this property under the same alter ego theater but if there are two members what if there is a delaware member and indiana member which of those two members of the l l c are you going to look to as to who the alter ego and again at the end delaware are going to claim that property certain point a process can go too far be abusive and be the basis for a cause of action that seems to be part of what they're saying and that's what the district court looked at and said yeah it looks like there's an issue there that needs to be resolved how can you stand up and say that's all just wrong theory just a couple good friends sit down no no fight here really responding to a number one the reason it's momentary is because they can at any point when you talk about an abusive investigation they can say we're not going to comply it is not a factual issue that is a matter of delaware state law there are no criminal or civil penalties or any penalty whatsoever from them just telling the auditor go away in the only way we can influence the judge jordan in the real world his theory penalty when somebody says to you if you don't do x i'm calling the tourney general and i'm going to see to it that there is both enforcement and we'll ask for acknowledging that the process itself even though it's not in enforcement through the trade general the process itself can become abusive in the esteem auditing process well look let me go to the second point i was going to make because i think this limiting principle and that is that if they really believed we were abusive to them if we sought a subpoena from them which they thought was abusive there is a tribunals the court of chancery which is assume for the sake of discussion that we disagreed with you about rape as god and the merits here and we're asking ourselves the very point which you're making right now which is if they've got a process of it and if that's true how do you square that with our new jersey retail marchin up in but i think i can answer both of those questions your honor first of all i think that the to provide that property to the state of new jersey it is entirely reasonable and logical for this court to say there was a powder right of action under that circumstance and not to extend that principle to this case why ere could be something outside the federal common want that no one else will address a private party doesn't address it was not going to come in they don't have an astute law so the only person who's got an interest in seeing that delaware doesn't color outside rights and could bring a suit would be a private party right your right but your honor is going to get to the critical distinction which i think is the limiting those are all dealt with substantive to step back potential claims melt and not really do things and bed to step in and start saying give me records for the last ten years or i asked fifteen years drag it out death by a thousand cuts and that's not ordinary investigation it's use of process to beat somebody down when there's no right to do that is a violation in essence of federal common law and they have framed it that way but it's shot is a conscious sort of violence to process so to say there's nothing no there's no there's nothing to see here nothing to see here are just blown pass all factual allegations like a complaint no no no feels like it use but the whole process together the way we used estimation the timing factor the absence of records created a new process problem in that case we're not there yet we see we are dealt with the prada rights about action but it was implicit in new jersey merchants because it intertainment that claim as a matter of strict holding it wasn't a holding of this court emphasized enough if you look at the structure of the texas t but we do have to wrestle with the process because the assertion being made is that that's really not all that's going on here that bed enough was given to you to satisfy you should put enough to satisfy you that there was no fraud but that the pressure stays on the demand for more continues and the assertions about what you can all was get made not because you have a legitimate interest in protecting residual holders but because you've got an interest in sweeping money into the coffers of the state of delaware because qatar has an interest in fattening its own role as a contingent fee auditor for the state if that's what's really going on here know best that seems to me you know that that is what you've got to address you can't just say all we're talking about here is you know satisfy it's that there's no fraud because the factual allegations take us past that don't they i do not believe they do i believe if they read them but it sure looks like they say you are abusing the process against us ok in this case not in some hypothetical but in but there was standing for a private party and that there is a federal common law right that they can assert but is it the case is it the case assume for the purpose of the scotch that that we thought there was i'm not saying there is or isn't but just assume it for this next step to get to what you just said if there is a private right of action based on a federal common law all right is it possible that that right could exten so far as traditional constitutional remedies that is that that common robin wright is subject to process limitations as well as substantive issues and if you abuse those p but i do not believe it and it is our position the trilogy does the rules that stuff we have rights we were to if we were to come if we we completed the process and we were claiming money from them contrary to the three and for you to be satisfied as to who is the holder but on the premise add do you agree bad and if enough is produced adjusted step one to identify the  data is necessary in order to look at what we do we do not agree with that proposition we we believe that it is not it cannot create a federal cause of action for them to provide whatever documents they choose to provide us and give us no opportunity and they're arguing on the blanket level no opportunity to go behind that and ask for documents in our underlying financial information my understanding in this and i can't give you chapter and verse here because it will come up directly in the case but my understanding is that the materials that were provided to the auditors the them for one of the states do not provide a complete picture that there's additional information that's necessary when additional information is necessary well that there is no bank records adequate what's what's not adequate there is a war on we are these issues can be dealt with it should not be a federal claim that we mentioned in the complaint it was only at a later point within the past three or four years that the state of delaware and the possibility of fraud and one side is giving us they are giving us documents we're learning about the nature of this alleged fraud and we're coming to this court to ask is a right for further in that's about something you got it you've got it and maybe and maybe we've got your position there isn't anything more to say about it when you say all we're asking for some way to further inquiry and what the state court handle it at the end of the day we have to ask the question is there a preemie which gives these people the right to say we don't have to go to state court and we don't have to wait until they subpoena us there's a federal common law right that prevents the state of delaware from saying we all we want to do sing choir and then spend years rooting around in our stuff costs in a small mia tell we not go under and and pay him some money you know not to put too fi and they don't care whether there's fraud or not they'll keep saying to shows from more things to show us one more thing that we just finally say here take the money and leave us alone that is the issue but squarely in front of us in that context that nothing more difficult with what we we would urge this court that it not extend trilogy too limiting stokes of investigations we're there is an adequate state women for dealing with abuse and inadequacy and i understand we've not we are we are saying that it's one thing powerful that there's a cause of in which any federal court has held that claim they present that we're discussing today exists mean because even further there is no court that is held b federal law limits investigations in any shape or form instead what you have is a body of case law we had this case this court's case and corrigan we ha ve mobile from the tenth circuit which says it is a federal policy not to interfere with investigations and subpoenas and in those cases you had a federal investigation and we had a federal court being asked to intervene here we have a state investigation with a state remedy a powerful plenary proceed going to new statute the new statute way i'm looking at yes the deputy attorney general says yes i mean my understanding is exactly that that the restrictions that were imposed by the statute now could this investigation so the ten year bar and the rest of the requirements apply counting from the inception of the investigation from this point forward for a second decade we can go back years ten year period of time i'm not i'm not sure when when the teen years commences we can provide you with that answer end with the list of documents and they have already been produced and in the course of that audit can you can you identify i like to make three points and i can answer your question about the statute the statute provides now that it's a ten year statute of limitation that is told as soon as there's a notice of audit so this audit can go on and on and  always go back ten years from the date it started which was two thousand and seven which means reports from one thousand nine hundred seven which means property from one thousand nine hundred two were going back more years than the temple in one case it's twenty four years held there were two claims one was brought by the church and one was brought by the pastor the state that we're not going to sue the church that claim wasn't right but they didn't disavow the claim against the pastor that claim remained  at your disposal and that it would be unprecedented for us to insert ourselves as a rule supervisors of state investigations when you have access to a highly is what is wrong with that analytical point because the federal law established the jurisdiction in tampa and texas prisons new jersey the court said this rule establishes wrong to say you have a remedy if you think you're the process is abusive the state provides you ready to use the state remedy what is  held that when the determination of whether freehold had a legitimate exemption under federal law to the state proceeding and it wasn't a question of legal interpretation of a contract but that process could be preempted here this property is exempted from the delaware statute because there's no jurisdiction of delaware over this property under the federal law does not once again you in that the process preemption on human you're making a right this is something that a federal court should address is requires finding that it's evident that the outcome contractual want there is nothing else it's just contractual issue or is the better the purchaser is the creditor there is no other question to ask other then is there an address so your solution that and that's it no not unless they've been threatened with enforcement action and here we have been threatened with enforcement action and his never been disavowed but they were going after that and we don't have ten grinders right behind us is office depot they didn't file immediately they got the same letter on january twenty sixth that was identical asking for the same property with the same threat they didn't see right away they get followed by a threatening letter about penalties and then a letter saying go through this process of saying oh gee there's an alter ego well it was certainly designed to be simple state the state but what you seem to be avoiding studiously is that once a private actor gets into the  mix incentives differ i don't think there was in the supreme court's mind to concerned that the state of new york was fraud to what we're going to hide something from the state of delaware but there is an assertion by the state of delaware that private parties have an incentive and a does that's a different completely different kind of a case there's also case in the supreme court twenty one states have sued delaware for claiming for taking hundreds of millions of dollars of official tax in violation of the that congress passed a law after pennsylvania versus new york because pennsylvania vs new york was about money markets and they passed a law saying you know for money workers and american express travelers checks we're going to have a place of pur