Page:Delaware v. Pennsylvania (2023).pdf/22

18 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.

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, 571 U. S., at 227. 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.

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