S. David Goldberg v. MICHAEL W. FRERICHS, Treasurer of Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2432
S. DAVID GOLDBERG,
Plaintiff-Appellant,
v.
MICHAEL W. FRERICHS, Treasurer of Illinois,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 3792 — Charles P. Kocoras, Judge.
____________________
SUBMITTED DECEMBER 14, 2018 — DECIDED JANUARY 2, 2019
____________________
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge. An earlier opinion in this
case concluded that people whose property is taken into cus-
tody by Illinois under the state’s Disposition of Unclaimed
Property Act, 765 ILCS 1026/15-607, are entitled to receive
the time value of their property (that is, interest or other
earnings), less reasonable custodial fees. Kolton v. Frerichs,
869 F.3d 532 (7th Cir. 2017); see also Cerajeski v. Zoeller, 735
F.3d 577 (7th Cir. 2013). On remand the district court de-

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2 No. 18-2432
clined to certify the proposed class, ruling that, despite what
our opinion said, owners of property in the state’s custody
are entitled to be compensated for the time value of money
only if the property was earning interest at the moment the
state took it into custody. 2018 U.S. Dist. LEXIS 51062 (N.D.
Ill. Mar. 28, 2018). This meant that the class had internal di-
visions that made certification inappropriate. The court then
granted summary judgment to the state on the claim of S.
David Goldberg, one of the putative class representatives,
whose property had not been earning interest before the
state took custody of it. The judge entered a partial final
judgment under Fed. R. Civ. P. 54(b), leading to this appeal.
For the proposition that the owner receives the proper-
ty’s time value only if the property was earning interest in
private hands the district court relied principally on Cwik v.
Topinka, 389 Ill. App. 3d 21 (2009), a state court’s decision
that precedes both Kolton and Cerajeski and interprets a state
statute rather than the Takings Clause of the Constitution.
The proposition is untenable, as we have already explained:
The Supreme Court has held that the Takings Clause protects the
time value of money just as much as it does money itself. Brown
v. Legal Foundation of Washington, 538 U.S. 216, 235 (2003); Phillips
v. Washington Legal Foundation, 524 U.S. 156, 165–72 (1998); Webb’s
Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 162–65 (1980).
In Cerajeski v. Zoeller, 735 F.3d 577 (7th Cir. 2013), we applied
these precedents to an Indiana statute like the Illinois statute in
this case. We held that a state may not take custody of property
and retain income that the property earns. A state may charge a
bookkeeping fee, which for small accounts may exceed the prop-
erty’s time value, but must allow the owner the benefit of the
property’s earnings, however large or small they turn out to be.
Id. at 578–80.

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No. 18-2432 3
Kolton, 869 F.3d at 533. The property’s owner is entitled to
“income that the property earns” less custodial fees; what
the property earns in the state’s hands does not depend on
what it had been earning in the owner’s hands.
To see this, consider a simple example. Owner puts a rare
coin in a safe deposit box, then neglects to pay the annual
rental. Bank turns the coin over to the state under the Dispo-
sition of Unclaimed Property Act. The state sells the coin and
invests the proceeds. The coin was not earning interest while
in the safe deposit box but was an investment property:
Owner hoped that its market price would rise. If the state
kept the coin and returned it to Owner on demand, then the
state would not owe interest; Owner could sell the coin and
obtain any change in value while it was in the state’s custo-
dy. But if the state sells the coin and cuts off the possibility of
appreciation, then Owner is entitled to the earnings on the
invested cash as the best substitute. The fact that the coin
was not earning interest in the safe deposit box would not
detract from the fact that its price could rise. The loss of that
time value is compensated by giving Owner the benefit of
interim earnings.
Goldberg did not have a coin. He had a check—or, ra-
ther, the payor that had made out a check to Goldberg had
the instrument because he had not claimed it, and the payor
delivered it to the state when the statute required. A check
represents cash, which cannot appreciate as a coin, stamp, or
painting might. But the principle is the same: cash has time
value even if not invested. Holding cash is sensible for a per-
son who fears that prices of stocks, bonds, and other invest-
ments will decline. If the state turns the check into cash and
makes an investment on the owner’s behalf (and against the

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4 No. 18-2432
wishes of someone who did not want to invest), then it is vi-
tal to turn any gain over to the owner. The Takings Clause
does not set up a situation in which someone who wanted to
be “in cash” bears the risk of loss as market conditions
change without any prospect of offseming gain. That would
make the owner worse off. (To put this differently, cash has
an option value—the option to invest or refrain from invest-
ing—that is lost if the state invests without the owner’s con-
sent. That loss has a compensable value.)
Brown v. Legal Foundation of Washington holds that a state
need not hand over earnings if the amount of the principal is
so small that (in the Court’s words) it “cannot earn net inter-
est”—in other words, when administrative expenses exceed
the return on investment. 538 U.S. at 224. The statutory sys-
tem under review in Brown required lawyers to turn over
small client trust funds so that they could be pooled, and
when pooled earn net interest. The principal would be re-
turned to counsel when they needed to disburse it to clients;
the state kept the interest for other uses. The Justices con-
cluded that this system did not offend the Takings Clause
because, by definition, the money could not have earned a
net return in the absence of the pooling and the owner could
not have lost anything. No loss, no need for compensation.
Id. at 235–41. Illinois could use Brown on remand to contend
that it does not owe interest on small amounts, such as the
$100 it held on behalf of Goldberg. Amounts as slight as $100
probably cannot earn net interest. But this has nothing to do
with how the owner held or invested the money or other
property before it came into the state’s hands.
It may be hard to administer the line established by
Brown. That will be among the district court’s tasks if the

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No. 18-2432 5
state contends on remand that particular parcels in its custo-
dy could not earn net interest in private hands. All we decide
today is that it does not mamer under Brown, or any other
decision by the Supreme Court or this court, whether prop-
erty that is able to earn net interest was in an interest-bearing
account before its transfer to the state. (This conclusion also
may lead the district court to reconsider its ruling on class
certification.)
The judgment is vacated, and the case is remanded for
proceedings consistent with Kolton and this opinion.

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