campo v sears holdings corp
DESCRIPTION
Lawsuit Against Sears for understating Real Estate Value in KMART bankruptcyTRANSCRIPT
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Case 1:06-cv-04053-LAK Document 5 Filed 07/14/06 Page 1 of 23
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
FRED P. CAMPO, Individually, and On Behalf of All Others Similarly Situated,
Plaintiff,
No. 06 Civ. 4053 (JES)
FIRST AMENDED CLASS ACTION COMPLAINT
V. JURY TRIAL DEMANDED
SEARS HOLDINGS CORPORATION and EDWARD S.LAMPERT,
Defendants.
Plaintiff Fred P. Campo, on behalf of himself and other
attorneys, hereby alleges, upon knowledge with respect to facts concerning plaintiff and
plaintiffs acts and as to all other matters, which generally concern facts not in plaintiffs
possession, upon information and belief as follows:
NATURE OF THE ACTION
1. This is a class action lawsuit asserting claims against defendants Sears
Holdings Corporation ("Sears" or the "Company"), the factual and legal successor to
Kmart Holding Corporation, and Edward S. Lampert ("Lampert"). Plaintiff brings this
class action lawsuit on behalf of themselves and a proposed class of entities and persons
(collectively "Plaintiff'), that purchased Kmart Holding Corporation ("Kmart") securities
on or after May 6, 2003 (when Kmart emerged from bankruptcy) or obtained such
securities as a result of the bankruptcy, and then sold such securities on or before June 4,
2004 (the "Store Sale Date"), when K-Mart announced it would sell up to 24 stores to
Home Depot for up to $365 Million. (May 6, 2003 through June 4, 2004 is the "Class
Period.")
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2. Plaintiff, deceived about the true value of their Kmart securities by
Krnart's affirmative misrepresentations and omissions concerning Krnart's business and
prospects, and, in particular, the true value of Kmart's real estate holdings, purchased
Kmart securities on or after the dale Kmart emerged from bankruptcy or obtained such
shares during the bankruptcy and sold them before the Store Sale Date for substantially
less than those securities were worth. Only after the Kmart's announcement on the Store
Sale Date, that Kmart would realize up to $365 Million on the sale of a tiny fraction of its
stores, (24 of Kmart's 1 ,5 13 stores remaining when Kmart exited bankruptcy), did
plaintiff discover the true value of the securities plaintiff had purchased on or after May
6, 2003 or otherwise obtained during the bankruptcy and then sold on the cheap during
the Class Period, as a result of le-mart's misrepresentations and omissions. Only after the
Store Sale Date did the magnitude of the fraud Kinart had perpetrated on plaintiff, and,
consequently, the value of the opportunity of which plaintiff had been wrongfully
deprived, become apparent.
THE PARTIES
3. Plaintiff Fred P. Campo is an individual with a principal residence in
Atlantic County, New Jersey. During the Class Period, deprived of the truth about the
true value of his Kmart shares, plaintiff purchased, and then sold, Kmart shares at a
substantial loss, as measured by the value of Kmart shares on the Store Sale Date. Had
Kmart not deceived plaintiff and others similarly situated, plaintiff would not have sold
those shares in the first place, or sold them at such a wildly inadequate price. Plaintiffs
transactions in Kmart securities are listed on the certification annexed to this Complaint.
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4. Defendant Sears is an Illinois corporation with its principal place of
business at Hoffman Estates, Illinois. Sears was formed in 2005 when Kmart 1-loldings
Corporation (the post-bankruptcy successor to Kmart Corporation) purchased Sears,
Roebuck & Co. Sears is the successor in law and in fact to Kmart's debts, obligation and
liabilities. Sears engages in the nationwide retail marketing, distribution and sale of a
broad variety of consumer goods, under brand names such as Craftsman, Kenmore,
Lands Ends DicHard, Martha Stewart Everyday, Joe Boxer, Jaclyn Smith, Sesame Street,
and under the proprietary Krnart label as well. Sears reported net income of $858 Million
for its 2005 fiscal year, on some $55 Billion in revenues.
5. Defendant Lampert is an individual with a residence in Greenwich,
Connecticut. Chairman of Sears's Board of Directors, Lampert is also the Chairman,
Chief Executive Officer, and principal owner of ESL Investments, Inc. ("ESL") a hedge
fund based in Greenwich, Connecticut. Lampert founded ESL in April 1988. Lampert
was previously K.mart's chairman as well as a director of le-mart. Through ESL, Lampert
owned approximately 51.4% of Kmart's stock, during all times material to this
Complaint.
JURISDICTION AND VENUE
6. This Court has jurisdiction over the subject matter of this action because
certain of the claims asserted herein arise under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 (the Exchange Act"), 15 U.S.C. 78j(b) and 78t(a), and the rules
and regulations promulgated thereunder, including SEC Rule 1Ob-5, 17 C.F.R. 240.1Ob-
5.
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7. This Court has jurisdiction over the subject matter of this action pursuant
to 28 U.S.C. 1331, because this is a civil action arising under the laws of the United
States.
S. The Court has personal jurisdiction over the defendants. In connection
with the acts and omissions alleged in this Complaint, the Defendants, directly and/or
indirectly, used the means and instrumentalities of interstate commerce, including,
without limitation, interstate telephone communications, the mails, and the facilities f
the national securities exchanges.
9. Venue is proper in this District pursuant to Section 27 of the Exchange
Act, 15 U.S.C. 78aa. Many of the acts and transactions constituting the violations of
law complained of herein, including the dissemination to the public of materially false
and misleading statements in connection with Kmart's bankruptcy, occurred in this
District.
10. Venue is also proper in this District under 28 U.S.C. 1391 because the
defendants engaged in substantial conduct relevant to plaintiffs claims within this
District.
SUBSTANTIVE ALLEGATIONS
Kmart Bankruptcy Background
11. Having experienced a series of substantial business reverses, Kmart and
37 of its United States subsidiaries filed voluntary petitions for reorganization under
Chapter 11 of the federal bankruptcy code on or about January 22, 2002, listing debts of
some $10.34 Billion in their bankruptcy filings.
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12. Lampert arranged ESL's highly discounted buyout of much of Kmart's
bank debt and bond debt during the bankruptcy proceedings. ESL and its affiliates
(collectively "ESL") ultimately obtained a controlling stake in Kmart, America's third-
largest discount retailer, acquiring over 50% of Kmart's common stock for approximately
900 Million.
13. Crucial to Kmart's reconfiguration and revitalization during bankruptcy
was Lampert's scheme to streamline, and ttbIti2e,Ki1th.tS highly Vliibl real estate
holdings and lease rights. Entering bankruptcy, Kmart had approximately 2,114 stores all
across America, many in prime locations, ripe for commercial development. In the
second quarter of Kmart's fiscal 2002, Kmart closed 283 stores, closings the Bankruptcy
Court approved on March 30, 2002. In the first quarter of Krnart's fiscal 2003, Kmart
closed 316 additional stores, closings the Bankruptcy Court approved on January 28,
2003. Once the 2003 store closings were completed, Kmart's stores numbered 1,513.
14. Shepherded quickly through Bankruptcy Court by Lampert, Kmart, which
had operated as a Debtor-in-Possession during its quick journey through bankruptcy, filed
a Plan of Reorganization and related Disclosure Statement on January 24, 2003. Kmart
filed an Amended Joint Plan of Reorganization and related Amended Disclosure
Statement on February 25, 2003 in connection with 1(mart's bankruptcy.
15. Having received the formal endorsement of the statutory creditors
committees, Krnart's Plan of Reorganization, as amended, was confirmed by the
Bankruptcy Court on April 23, 2003.
16, On May 6, 2003, Kmart officially emerged from bankruptcy, becoming a
wholly-owned subsidiary of Kmart Management Corporation. Kniart Management
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Corporation was itself a newly-formed, wholly-owned subsidiary of the then newly-
formed holding company, Kmari. Holding Corporation.
17. Before filing bankruptcy, Kmart securities had traded on the New York
Stock Exchange. On or about June 10, 2003, after Kmart had emerged from bankruptcy,
Kmart began trading on the NASDAQ under the symbol "KMRT."
18. Lampert emerged as 1(mart's chairman, and the owner, through ESL, of
approximately 5 1.4% of Kmart's new lstock. ESL received its ownership stake in the
reorganized Kmart in exchange for pre-petition obligations, shares obtainable upon the
exercise of certain options, and shares obtainable upon conversion of a convertible note
issued to ESL affiliates.
Kmart's Lucrative Store Sales to Home Depot and Sears
19. On or about June 4, 2004, Kmart announced it would sell up to 24 Kmart
stores to Home Depot, for up to $365 Million.
20. On or about June 30, 2004, T(mart announced it would sell up to 54 Kmart
stores to Sears, for up to $621 Million.
21. On or about August 23, 2004, Kmart announced a final agreement for the
sale of 18 stores to Home Depot for $271 Million in cash.
22. On or about September 30, 2004, Kmart announced it had completed the
sale of 50 Kmart stores to Sears for $575.9 Million.
23. Those 68 Kmart stores that Lampert sold represented only a tiny fraction -
approximately 4.49% - off Kmart's real estate assets.
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24. Although Lampert's sales of those 68 Krnart stores represented the sale of
only a tiny fraction of Krnart's real estate assets, those sales fetched the astonishing sum
of $846.9 Million.
25. During Kniart's stay in bankruptcy in 2003, however, Kmart's real estate
prospects were reportedly much dimmer. As public articles and other documents reflect,
Kmart seemed to experience much greater difficulty auctioning off the stores it had
closed. In certain strategic locations, such a the metropolitaNew York area, the ftitii
of many closed Kmart stores was uncertain more than half a year after they had been
closed. The New York Times, for example, said this area was saturated with so-called
"big box" stores, such as Target and Costco, accounting for the lack of interest in the
former 1(mart stores.
Kmart Stock Price Soars on News of Sales
26. On June 3, 2004, the day before Kmart announced it would sell up to 24
Kmart stores to 1-Tome Depot, for up to $365 Million, Kmart's stock closed at $54.86.
27. On June 4, 2004, the day IT mart announced its lucrative deal to sell up to
24 Kmart stores to Home Depot for up to $365 Million, Kmart's stock jumped $767, an increase of nearly 14%, to $62.53.
Plaintiffs Sales of Shares
28. During the Class Period, plaintiff sold Kmart shares at an average sale
price considerably lower than Kmart's closing stock price on June 4, 2004.
29. Kmart's announcement of the enormously lucrative store sales to Home
Depot, and then of the similarly highly priced sale of stores to Sears, revealed that
Krnart's real estate assets, and therefore Kmart's stock, was worth a great deal more than
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plaintiff had been led to believe when he purchased their Kn-iart shares and then sold
Kmart shares in reliance on Kmart's financial reports, and other statements and
information disseminated by Kmart, Lampert, and other executives, including, without
limitation, during Krnart's bankruptcy reorganization, all of which reports, statements
and information had painted a deceptively dismal financial picture of Kmart's real estate
and other values.
30. Had plaintiff sold his Kmart shares on the day after the Store Sale Date,
plaintiff would have realized substantially greater value for each share he sold. As the
proximate result of defendants' false and misleading statements and omissions, as
described in this Complaint, plaintiff suffered damages.
Kmart buys Sears
31. On or about November 16, 2004, Kmart and Sears announced an $11
Billion cash-and-stock deal, creating the new company Sears Holdings Corporation.
32. Lampert, through ESL, was on both sides of the KmartlSears deal.
Through ESL, which held 15% of Sears, Lampert was Sears's largest shareholder.
33. The KmartlSears deal closed on or about March 24, 2005. Lampert
became the Chairman of the combined companies, now known as Sears Holdings
Corporation.
False and Misleading Statements
34. Defendants made numerous false and misleading material statements, and
omissions, including, without limitation, during I(mart's bankruptcy reorganization, on
which plaintiff detrimentally relied in deciding to sell their Kmart shares during the Class
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Period at prices substantially lower than full and fair disclosure by defendants would
have produced.
35. Engineering his takeover of Kmart and its undervalued assets for as low a
cost as possible, Lampert had no interest in full and fair disclosure of all material
information about Kmart's assets, especially Kmart's real estate assets. The lower the
disclosed value of Kmart's assets, the lower Lampert's cost of acquiring control of
Krnart, and the greater Lampert's future profit when Kin.rt's true values could be
disclosed and monetized.
36. In late 2004, for example, Louis Taylor, a Real Estate Investment Trust
('RETT") analyst for Deutsche Bank, estimated Kmart's real estate alone as worth up to
$1 52.95 per share, or approximately $16 billion. But, less than two years before Mr.
Taylor's independent valuation of Kmart's real estate values, Krnart had valued all of its
assets at only $16.3 billion.
37. Similarly, in its bankruptcy filings, Kmart listed some $16.3 billion in pre-
bankruptcy assets. But the sale of only 4.49% of Kmart's stores generated the enormous
sum of $846.9 Million, representing an implied value of approximately $17 billion for
Kniart's real estate alone.
38. Nowhere in its Plan of Reorganization and Disclosure Statement, as
amended, or anywhere else, including, without limitation, in connection with statements
made during Kmart's reorganization in Bankruptcy, did K.mart or Lampert suggest, let
alone disclose, that Kmart's real estate assets were worth far more than Kniart had
disclosed.
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39. Kmart's Amended Disclosure Statement, filed in connection with Krnart's
bankruptcy reorganization, for example, reflected the net book value of Kmart's real
estate interests (stores, distribution centers, corporate resource center and "other") as
$1,208,392,000 as of April 30, 2003, an average of $798,672.84 per store. In
conspicuous contrast, Kmart's post-bankruptcy sales, not even two years later, of only 68
stores for the total of $846.9 million produces the extravagantly greater average of
$12,454,411.76 per store, an increase of $11,655,738.92 per storrepresriting1,459%
increase per average store value.
40. This large increase in the values of Kmart's real estate and leasehold
interests, during the period from Kmart's emergence from bankruptcy through the Store
Sale Date, is not attributable to any external factors. In fact, to the contrary, interest rates
were generally increasing during that time frame, raising the cost of borrowing for real
estate investments.
CLASS ACTION ALLEGATIONS
41. Plaintiff brings this action on his own behalf and as a class action pursuant
to Rule 23(a) and Rule 23(b) (3) of the Federal Rules of Civil Procedure on behalf of a
class (the "Class") consisting of: all persons and entities who purchased any Kmart
securities on or after May 6, 2003, or obtained such securities as a result of the
bankruptcy, and sold such securities on or before the Store Sale Date, and who were
injured thereby. Excluded from the Class are: (i) defendants; (ii) members of the family
of each individual defendant; (iii) any entity in which any defendant has a controlling
interest; (iv) the officers and directors of Sears and its subsidiaries and affiliates; and (v)
the legal representatives, heirs, successors or assigns of any such excluded party.
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42. Throughout the Class Period, shares of Kmart common stock was traded
actively on the NASDAQ, an efficient market. Throughout the Class Period. Kmart debt
securities were traded on the open market. The members of the Class, as purchasers and
sellers of debt and common and preferred stock securities, are so numerous that joinder
of all members is impracticable. Although the exact number of Class members may only
be determined through appropriate discovery, plaintiff believes that Class members
number in the thousands. Approximately 89 million shares of Kmart stock were issued
and outstanding during the Class Period. There was also approximately $2.1 Billion of
Krnart debt outstanding at the end of the Class Period.
43. Plaintiff's claims are typical of the claims of the members of the Class.
plaintiff and other members of the Class bought and sold their Kmart common stock,
preferred stock, and/or debt securities pursuant to Kmart's bankruptcy reorganization
filings, registration statements or on the open market, and sustained damages as a result
of defendants' wrongful conduct complained of herein.
44. Upon information and belief, thousands of entities and individuals
comprising the Class purchased Kniart shares, and then were fraudulently induced to sell
those I(mart shares at artificially low prices, because of K.mart's and Lampert's false and
deceptive scheme to conceal the Company's true value, including, in particular and
without limitation, the value of Kmart's leasehold and other real estate interests.
45. The members of the Class are so numerous and dispersed throughout the
United States such that joinder of all members is impracticable.
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46. Common questions of law and fact exist as to all members of the Class
and predominate over any questions affecting solely individual members of the Class.
Among the questions of law and fact common to the Class are:
a. Whether Kmart and Lampert engaged in a scheme to conceal the
true value of Krnart's leasehold and other real estate interests;
b. Whether 1(mart and Lampert engaged in a scheme to conceal the
true value of Kmart's debt and equity securities;
C. Whether Kmart's and Lampert's scheme to conceal the true value
of Kmart shares was carried out intentionally with direct knowledge, or at least
recklessly; and
d. Whether the members of the Class have sustained damages and, if
so, what the appropriate measure of damages should be.
47. Plaintiffs claims against defendants are typical of the claims of the
members of the Class. Plaintiff and the Class each sustained damages arising out of the
Defendants' wrongful conduct as detailed herein. Specifically, plaintiffs claims and the
Class's claims arise from the defendants' scheme to illegally conceal Kmart's true value
of the Company by making false and misleading, and incomplete statements, and
omitting to make statements, necessary to provide a full and fair picture of Kmart, its
business, the value of its leaseholds and other real estate interests, and the value of its
stock.
48. Plaintiff will fairly and adequately represent and protect the interests of
the members of the Class. Plaintiff has retained counsel competent and experienced in
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class action lawsuits. Plaintiff has no interests antagonistic to or in conflict with those of
the Class and should be named as a representative for the Class.
49. A class action is superior to other available methods for the fair and
efficient adjudication of this controversy since joinder of all members of the Class is
impracticable. Furthermore, because the damages suffered by individual members of the
Class may in some instances be relatively small, the expense and burden of individual
litigation make it impossible for such class members individually to redress the wrongs
done to them. Also, the adjudication of this controversy through a class action will avoid
the possibility of inconsistent and possibly conflicting adjudications of the claims
asserted herein. There will be no difficulty in the management of this action as a class
action.
50. The names and addresses of the record sellers of Kmart's publicly traded
securities, sold during the Class Period, are available from the Company's transfer
agent(s) and/or from other sources. Notice may be provided to such record owners via
first class mail using techniques and a form of notice similar to those customarily used in
class actions.
LOSS CAUSATION
51. Defendants' fraudulent misrepresentations and omissions concerning
Krnart's asset values, including, in particular, the value of its leaseholds and other real
estate interests, caused the price of Kmart's securities to be artificially deflated when
plaintiff sold those securities and proximately caused plaintiff's damages.
52. As the truth about the value of KmarE, its leaseholds and real estate
interests, and its debt and equity securities was revealed with Kmart's surprising
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announcements of the sales of stores to Home Depot and Sears, the deflation caused by
the defendants' false and misleading statements and omissions was methodically
eliminated from the price of Kmart's securities.
PRESUMPTION OF RELIANCE - FRAUD ON THE MARKET
53. Plaintiff are entitled to a presumption of reliance on defendants' material
misrepresentations and omissions for the following reasons:
a. T(Prt's publicly-traded securities were actively traded in an
efficient market on the NASDAQ during the period in which plaintiff sold Kmart
securities. The average daily trading volume of Kmart shares was more than 654,000
shares during the Class Period, and the total number of shares traded during the Class
Period was 179 Million shares;
b. Kmart regularly filed periodic public reports with the SEC;
C. Kmart regularly communicated with public investors through
established market communication mechanisms, including regular disseminations of
press releases on the major news wire services and other wide-ranging public disclosures,
such as communications with the financial press, securities analysts and other similar
reporting services;
d. The market reacted to public information that Kmart disseminated;
e. Kmart was followed by numerous securities analysts employed by
major brokerage firms who wrote reports which were distributed to [lie sales force and
certain customers of their respective firms. Each of these reports was publicly available
and entered the public marketplace;
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f. The material misrepresentations and omissions alleged herein
would tend to induce a reasonable investor to misjudge the value of Kmart's shares; and
g. Without knowledge of the misrepresented or omitted material facts
alleged herein, plaintiff and other members of the Class sold Kmart securities between
the time defendants misrepresented or failed to disclose material facts and the time the
true facts were disclosed.
54. Plaintiff is also entitled to a presumption of reliance because, as more fully
alleged above, defendants failed to disclose material information regarding Kniart's
business, financial results, leaseholds and other real estate interests, and business
prospects, throughout the Class Period.
NO SAFE HARBOR
55. As alleged herein, Lampert acted with scienter in that he knew, at the time
they were issued, that the public documents and statements issued or disseminated in the
name of Kmart were materially false and misleading or omitted material facts; knew that
such statements or documents would be issued or disseminated to the investing public;
knew that members of the investing public were likely to reasonably rely on those
misrepresentations and omissions; and knowingly and substantially participated or was
involved in the issuance or dissemination of such statements or documents as primary
violations of the federal securities law.
56. As this Complaint sets forth elsewhere in greater detail, Lampert
participated in and knew of the fraudulent scheme alleged herein, by virtue of his receipt
of information reflecting the true facts regarding Kmart; his control over, and/or receipt
of Kmart's allegedly materially misleading misstatements; and/or his association with
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Kmart, all of which made Lampert privy to confidential proprietary information
concerning Krnart that defendants used to misrepresent financial results, and which the
defendants caused or of which defendants were informed.
57. With respect to non-forward-looking Statements and/or omissions, the
defendants knew and/or recklessly disregarded the falsity and misleading nature of the
information which they caused to be disseminated to the investing public.
58. Defendants' false and misleading statements and omissions do not
constitute forward-looking statements protected by any statutory safe harbor. The
statements alleged to be false and misleading herein all relate to facts and conditions
existing at the time the statements were made. No statutory safe harbor applies to any of
Kmart's or Lampert's material false or misleading statements.
59. Alternatively, to the extent that any statutory safe harbor is intended to
apply to any forward-looking statement pleaded herein, the defendants are liable for the
false forward-looking statement pleaded because, at the time each forward-looking
statement was made, the defendant making the statement knew or had actual knowledge
that the forward-looking statement was materially false or misleading, and the forward-
looking statement was authorized and/or approved by a director and/or executive officer
of Kmart who knew that the forward-looking statement was false or misleading. None of
the historic or present tense statements made by the defendants was an assumption
underlying or relating to any plan, projection or statement of future economic
performance, as they were not stated to be such an assumption underlying or relating to
any projection or statement of future economic performance when made. Nor were any
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of the projections or forecasts made by the defendants expressly related to or stated to be
dependent on those historic or present tense statements when made.
COUNT!
Section 10(b) of the Exchange Act and Rule 10b-5(a) (b) and (c) Against Sears and Lampert
60. Plaintiff repeats and realleges each and every allegation set forth above as
if fully set forth herein.
61. Plaintiff brings this Count pursuant to Section 10(b) of the Exchange Act
and Rule I Ob-5(a), (b) and (c), against defendants.
62. Throughout the Class Period, defendants directly and indirectly, by use of
the means or instrumentalities of interstate commerce, the mails, and/or the facilities of a
national securities exchange:
a. Employed devices, schemes, and artifices to defraud;
Made untrue statements of material fact and/or omitted to state
material facts necessary in order to make statements made, in light of the circumstances
under which they were made, not misleading; and/or
C. Engaged in acts, practices, and a course of conduct that operated as
a fraud or deceit upon plaintiff and others similarly situated in connection with their sales
of all Kinart securities.
63. Defendants made material misrepresentations and/or omissions knowingly
and/or in reckless disregard for the truth, with the purpose and effect of misleading the
investing public with respect to Kmart's true financial condition and performance and
establishing and confimiing the artificially depressed price of Kmart's publicly traded
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securities. In particular, Kmart's initially filed Plan of Reorganization and Disclosure
Statement, and other statements, written and oral, during Kmarts bankruptcy
reorganization, did not reflect the true and accurate values of Kmart's assets, especially
Kmart's real estate assets. Kmart's Amended Disclosure Statement did not correct, but
rather compounded, that deception. Kmart's Amended Disclosure Statement reflected the
net book value of Kmart's real estate interests (stores, distribution centers, corporate
resource center and "other") as $1,208,392,000 as of April 30, 2003, an average of
$798,672.84 per store. However, in conspicuous contrast, Kmart's post-bankruptcy sales,
not even two years later, of only 68 stores for the total of $846.9 Million produces the
extravagantly greater average of $12,454,411.76 Million per store, an increase of
$11,655,738.92 per store, representing a 1,459% increase per average store value. No
external justification exists for that sudden postbankruptcy increase in average store sale value.
64. Specifically, defendants made false and misleading material
misrepresentations and omissions in failing to disclose the true value of Kmart's leaseholds
and other real estate interests. In this manner defendants intentionally, knowingly, and
recldessly deceived plaintiff, the Class and the investing public into assigning a much
lower value to T(ma.rt's leaseholds and real estate interests than those leaseholds and
interests actually had, and defendants only disclosed the true value of those leaseholds and
real estate interests when defendant announced the potential sale of stores to Home Deport
on the Store Sale Date.
65. Defendants used or engaged in devices, schemes, artifices, practices
and/or courses of conduct knowingly and/or in reckless disregard for the truth, with the
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purpose and effect of misleading the investing public with respect to Kmart's true financial
condition and performance and establishing and confirming the artificially depressed price
of Kmart's publicly traded securities.
66. Defendants knowingly or in reckless disregard for the truth employed
devices, schemes, artifices to defraud, and/or engaged in acts, practices and/or courses of
business, with the purpose and effect of misleading the investing public with respect to
Kmart's true financial condition and performance, and establishing and confirming the
artificially depressed price of Kmart's publicly traded securities.
67. Defendants carried out a plan, scheme and course of business that was
intended to and did deceive the investing public, including plaintiff and other members of
the Class, as alleged herein, artificially depressed and maintained at that artificially
depressed market price Kmart's publicly traded securities; and induced plaintiff and other
members of the Class to sell or otherwise dispose of I(mart's publicly traded securities at
artificially depressed prices.
68. By virtue of the foregoing, Defendants violated Section 10(b) of the
Exchange Act and Rule lOb-5(a), (b) and (c).
69. As detailed herein, plaintiff and the other members of the Class have
suffered damages because, in reliance on the integrity of the market, they sold Kmart
securities at artificially depressed prices.
70. Plaintiff and the other members of the Class would not have sold Kmart
securities at all, or, in any event, at the artificially depressed prices at which plaintiff and
the Class sold those securities, had they known that the market prices of those securities
were artificially deflated by the fraudulent conduct alleged herein.
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COUNT II
Section 20 of the Exchange Act Against Lampert
71. Plaintiff repeats and realleges each and every allegation set forth above as
if fully set forth herein.
72. Plaintiff brings this Count on behalf of itself and the Class under Section
20 of the Exchange Act against defendant Lampert.
73. As detailed above, primary defendant Kmartviolated Section 10(b) of the
Exchange Act, and violated Rule I Ob-5(a),(b), and (c) through Kniart's knowing and/or
reckless dissemination of materially false and misleading statements, and/or through its
uses of devices, schemes, artifices, practices and/or courses of conduct that operated as a
fraud on the investing public.
74. Defendant Lampert possessed, directly or indirect, supervisory power to
direct and control Kmart's management and policies, including, without limitation, Kmart's
management of, and policies concerning, Kmart's financial reporting. Lampert was
therefore a controlling person within the definition and meaning of Section 20(a) of the
Exchange Act throughout the Class Period.
75. By virtue of his direct and substantial managerial and operational control
of Kniart, and his systematic involvement in the fraudulent activities that this Complaint
describes, Lampert had the ability and authority to influence the particular transactions
giving rise to those fraudulent activities, to prevent the issuance of the false and misleading
statements and omissions described in this Complaint, and to correct them once they were
made.
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76. Not only did Lampert have the ability and authority to influence the
particular transactions giving rise to the fraudulent acts and omissions described in this
Complaint, but Lampert was a culpable participant in the primary violations. Lampert
acted knowingly and intentionally in participating in, and authorizing, for example, the
creation, approval and dissemination of false and misleading valuations of Kmart's assets,
including, without limitation, Kmart's leasehold and other real estate interests during
Kmart's bankruptcy and during the Class Period.
77. As a "controlling person" within the definition and meaning of Section
20(a) of the Exchange Act, and having been a culpable participant in the fraudulent acts
and omissions described in this Complaint, Lampert is liable to plaintiff and the other
members of the Class for any and all damages they have suffered as a result of the fraud
this Complaint describes, under Section 20(a) of the Exchange Act.
PRAYER FOR RELIEF
WHEREFORE, plaintiff demands judgment on behalf of himself and the Class as
follows:
A. Awarding plaintiff damages under the federal securities laws in an amount
to be determined at trial, together with prejudgment interest at the maximum rate
allowable by law;
B. Awarding plaintiff punitive or exemplary, damages in an to be determined
at trial;
C. Awarding plaintiff the costs of this suit, including reasonable attorneys'
fees and other disbursements; and
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D. Awarding plaintiff such other and further relief as this Court may deem
just and proper.
JURY DEMAND
Plaintiff demands a trial by jury.
Dated: July 14, 2006
FARUQI & FARUQI, LLP
By: bjL (rvL; /1-s J Nadeern Faruqi (NF-1 84)
320 East 39th Street New York, New York 10016 Tel: 212-983-9330 Fax: 212-983-9331
GARD& NOTTS, LLP -
By:4 \ ( Ja1es S. Notis'441
440 Iv Avenue, Suite 110 Englew Cliffs, New Jersey 07632 Tel: 201-567-7377 Fax: 207-567-7337
Attorneys for Plaintiff
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Case 1:06-cv-04053-LAK Document 5 Filed 07/14/06 Page 23 of 23
CERTIFICATE OF SERVICE
JAMES S. NOTIS hereby certifies that on July 14, 2006, he caused a true and
correct copy of the foregoing to be served by First Class U.S. Mail on counsel for all
defendants as follows:
Paul Vizcarrondo, Jr. WACUTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, New York 10019-6150
Counsel for defendants Sears Holdings Co , oration and Edward S. Lampert
Jn-S)Notis (119) GARDY & NOTIS, LLP 440 Sylvan Avenue, Suite 110 Englewood Cliffs, New Jersey 07632 Tel: 201-567-7377 Fax: 201-567-7337