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Pe
STATEME1TOFFACTS .............................................................................................................
ARGUMENT----------------------------------------------------------------------------------------------------------------------------------- 5
CONCLUSION.................................................... .........................................................................15
Im
Case 1:06-cv-04053-LAK Document 65 Filed 05/30/08 Page 3 of 20
TABLE OF AUTHORITIES
Law Pp
Amron v. Morgan StnIc I nv. Adyl5ws Inc., 464 F3d 33 d Cir 2006) ....... ........ ......... ....... 6-7
Burrows Y. Furct Labs.. Inc. 742 F.2d 54 (2d Cir. 1984) ........................................................ 9, 10
In N IrnergLcI AqisLiLon Carp., 170 ELR. 63 2 Rankr N-D Ill. 1994 .......................................13
lii re 1.steie Lauder Co Se. Litig., No- 06 Civ 250, 2007 WL 1522620
(S.D.N.Y. May 21,2007) .... ...... ...... ...... ...... ......
99 99 9999 99 99,9 99 -------------------------------------------------------------
JMS Rural LP ' 0MG Capital P artncrs III, LP, No. 04 Cix'. S591,
2006 WL 19614V SJ1N.Y. July 6, 2006L afrd on
200 WL 22361 (S.D.N.Y. Aug. 4, 20(16).... ....... ..................................................................... X
Lev[e v. Sear Rothuc.k & Co.. 496 F. Spp. 2d 944 (N.D 111 2007)...................................12 n.8
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3 Thomas Lc Hawn, Law of Scc. Rc. § 12.12[] ] 5Lh ccL 2OO) .. ........ ................ ....................... 9
--------------------------------------------------------------7
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PRELIMINARY STATEMENT
CorpcialLLn who sold shares during the first sixtecri months foUo'wing K.irnu-11 s cmgetbee from
bankruptcy. Plaintiffs Fred P. Campci, Lornrd Cope. Plumbers and Pipelitters National Pension
Fuibd and the Mississippi Public Employccs Retirement Sysleni tectveIy. "Plaintiffs) aI1ee
that Edward S. Lampert and JWidr] Day - Kmart's Chairman iiid CEO respectively -
de1i.mtcly wirhhcld information about the value of KmerL real estate to suppre the price of
Kinari shares. Although Mr. Larnp.efl and Mr- 11a•' each we maj or investors in Kinart,
Plaintiffs implausibly contnd I]i1 they intenioiaIly suppressed the price of Krnart's shares out
of an tmepLaincid dc-sire 10 delay the naikeis realization that dw jnye.jnt finn run by Mr.
At the hesthtg or the motion to dismiss the Consolidated Class Action Complaint
(LLC.m]afll this Court .reogttized that Plaintiffs' case - which is based in ubtantial pert or
Hold] tins Corp., et al. No. 06 Civ. 4)53, Apr. 15. 2. at 61:10. Thus, the Court denied
P1ItiiiI1 tijred sources and 'lirecteil thc parties to rc(urn to Court br a heajing on the
question of whether the infonnation pruividel by those sources is sufficient to slate a clairn for
reiief.
Sepiratiy. at the hearing on the motion to dimi. the Court raid the issue of
Fdr ac 52;19-53; 7. At a iiubscq-ucn1 Confcrcnccwith the prIii On April 30 200 and by order
dated My I, 200. the Court dired the parties to sI.LbnhiI briefing or the dmwges itie. As
explained herein. Plthiiiffs have failed to aLlege any compeisaHe injury, thus. the Court should
dismiss the Com1iiti1 as a matter of Law, without regwd to whether or not the unnamed
-oures provided P]ahitffs with sufficient bss for the Complaint's, alt tions
The iwy that PLaiflftfs have ssrted - raniety. that they coLild have Wd their
Kmart thare.s at higher prices had they known the nith 1'about [lie value of Km= 's real estate
portfolio - is LnsufficLe.it to support a claim for relief for three independent reasons.
EiM hiantiffs have not alleged Lhat they suffered any atual 1 out-of-pocket Ic'ssca
a result of their stkn and subsquent sale of Knart shares as is required to state a claim
for $UTiliCS liat4. Plairiliffs Fred p Campo and Leorard Cope (together. the individual
PlalitIT") received shares through the bankruptcy that were worth approximately S 15 csh, bit
sold those shwas at a higher price Having profited on the shares at isuc1 Individu1 Plaintiffs
cannot as s matter of law, show cognizabT thmages- 5 1 riar1y, the Plumbers and Pipefitters
National Pension Fund and the Mississippi PuhlLc Employees Retirmcni Sytrn (together, the
ILl
niilutkat ttiffsl have no co.nizab1 damagcs they bought and sold their shae in the
open market W do not contend that they realized a loss,
Case 1:06-cv-04053-LAK Document 65 Filed 05/30/08 Page 7 of 20
Second. although Plaintiffs claim that they sold their Knart shares at a "fraud
dicourn,' P[a[flff iec sily birei1 those sbams atflw same alleged disocunt,
therefore, could not have suffered env Ws as a result of the alleged fraud. As a mailer of law
and sirJlp!e logic, if Kmart's shares were"undervalued" wie.ii they were sold, they were also
jr3J1j1cJ1' when they were recejyed or purchased by Plaintiffs, and the identical
L'ndcrvLIuauon Al aNuiiiifion and dposi Lion would "cancel each othcr uL Icaing the PIairitift
With no loss.
Third any claim by Plaintiffs that they suffered damages in this case because
Defendants undervalued Krnarts real cstaft amounts to an irnpcniiissiblc attack on the a[uation
of Krnan a assets approved by the Bankruptcy Court- The Individual Plaintiffs, who received
their shares in the hankrupty, and the higdtutioxiai Plaintiffs, who are meessariIy in privity with
somecinc who received abarca in the bankruptcy, are precluded from eha!1cning the valuc the
in pcy Court ascii bed to Krnari s assets and, by c(CrThiOn 1 their ihare.s.
STATEMENT OF FACTS
cIrnoF1ta1e It the Bankruptcy Court tha Kmarts val Lbe as a reoganizecl company was greater
thaai its value on a llqiidatiün basis- 11 U.S.0 1 129(a)7). Thus, along with its final,
submined to the Bankruptcy Court a third-party valmilion outs Ml esIe and mlhr fixed 1isset
to that raJ uation. the 1 Iquidation value of thc.e assets 1lFas between $5933 59000 and
78,996,000, and the full value of those assets was ine more than double those amounts. See
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Disc]osure .5t#meti. i:KLcinha D.].' E. 1). App. B ct 3-13, In approvii K.arI's I[üi, the
aiikrupiey Cirt speiitic1Iy found thai the th[id-pr*)• appraisal of Kmart's real estate was
pe.rsLiasiv credible and accurate as of the dat it was prepared- Confirmation Order
The day alter Kirjivt emerged from bankruptcy. the effleieit. piibl[cty-traded
market in shares of Krnart wmmoin stock = Compi- 1 174c) valmdslwe.q of thii stock at
a)T'<itThkIy 15 pci share. 2 which was wtbin the range of valoes attrib-ite4 by the Eürtkruptcy
During the first week oft Jig after Km.an' eme.rgertce horn bankrupicy. Krnarts shares
reached a high price of $15-25 per share. See Exhibit A atEached hereto (listing historical stock
prices of Krnart Corporaion (predecssor to Sears Holdings Corporation (SHLD)) during the
class period).
PIuintflj Campo and Cope are individi.iaL investors who purchased Krnart bonds
that werc cxrhangcd for sha= of Kmatt commoli stock in connection w[th the company's
reorgai-ator vridei Chapter ii, CornpL 11 15. Cope sold 171 shares of Kinan common stock
on SEptembeF 23. 211O for $26 5 per share Campo sold 285 shircs of Kmart oonarnon sbx1
The. Court may corisiiJe'r public trading data in connettion with a ruoLion to dismiss. L YW
(}j j 228 F34 154, 166 n.g i:2d Cir, 2001 ([T]hc dsirLct 4urt may
taLejudLc[al notice of wcl]-publicized stuk prices without convexdng the motion to dismiss into
a motion for suJnmaryjucment.").
3
5Z Dccl- of Mark C Gardy in Support of the Motion of Frid P. Campo and Leonard
Cope for Appotnirnent a5 Lead Plaitiiiffs and Approval of Their S'c]cction of Lcs4 Counsel, 1 , X.
B (Dockel No, 16).
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on June 3 2003 ['or S [ 5.i& Both Cope and Campo, trfore sold their AW.V9 at i prc hove
thr. pnce at which thL1 hams first traded when Kniail emerged troti aakniptey.
The Plumbers and Pipefitters National Pension Fund (Plurnbcrs and PipefLtter 1 )
and the Mississippi Public Ernp1oyec Rciircrncni System ("MPERS') purchised Kmmt stock
after Krnari emerged from Inkniptcy. Plumbers and Pipertutrs has not dscleed chc pnict that
it paid for Kruart common stook, but It suld 37,5 75 shares on February 25, 2004 for S255 per
sharc. Thcrc is no a1lcatori that Plumbers tmd PipefiUers sold its shares at a loss.
of Krnart conmon stock between December 2003 and June 2004; MPERS pwhasecI Kinart
common itock at prices between 23..t05 0 per shut and S3 0.0000 per share and sold those
shms at prloes bemneen $34,1522 per share and $62.2768 per sharc. The record Confirms,
ARGUMENT
To state a claim for securities fraud under Section 0(b) of the See.iriIes
Ehrne Act of] 934 (xhange Act"'),IS flS .0 § 7j(b), and RuIc 1 Ob-5 prornuLgaLed
lheretiiider, 17 C.F.R. § 240. 1 OS, a plaintiff is required to plead the following clerncits; l) a
See Dec] araUon of Geoffrey C. )r's in Support of MPERSs Motion for Consolidation,
for [Es Appointment as Lead Plaintiff and for the Approval of SLectiori of Cowisel Ex A,
5hedt.ite A (Dxkel No 19)-
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connection with the purchase QF sale of a security; (4) reliance - (5) economic loss; and (6)
Loss causation, i.e... a causal conhleefion between the material misrepresentation and the loss.'
DL.Lra Phamis.J v Broudo. 544 US 41-42 (2005) (internal citaIions quotation marks
and emphases cimitied). This memorandum focuses on the fifth and sixth of thcsc c1cmnts -
rIrrI[y 1 c c onomic loss and bs mu s at i on - which Plaint] ITS have IalkJ to plea fts reqkil rW by
i'oirr I
in y-estorg aacn ipi to p itad It:; ca us allori ad wonom ic Loss by mer1y alleging that the price of
a scurkv was inflated due t an alleged misrepre sentation. The Court concluded, that the
]ainLiflinvestor wai ob]iga1d. in his comLirn. to " provide a defe ndant with sonie indication
of the loss and tht cau sa l eoime.1ioii that the plairttUftiiis in mind-" 544 U. S_ at 47 The Court
rcognizid that "al lowing a plaLnIifTto forgo g'ig emy irdieation of the economic loss and
proximate cause that the plaintiff has in mind would brine about Iiann of the vary sort the
simply take up the Liin uf a number of 011wr p.eole, with he right to do so representing an in
tcITor1m inircmcnl of Lhc settlemeiit valu e , rather than a teasotiahy founded hope that the
[dscovry] procis wilt rcvl relevant evdertee..' j4 (emphasis and alteration in original;
The Scorid Circuit has hewjt closely to Dura For instance in Aruron v Morgan
federaL se~curit[es action under Federal Rule DI CIA] ProcIure I 2(b)(5). he Court explained
In
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that. to survive a rnotwci to disrriis. i plali ntiff mui adqiat[v nIIcgi " thal[i s'.WTcd an
coriomic loss and that the di:kFidaM's frudlnt 000duct was the PromrtaIe cau the
pIaiti ft's loss. 464 F3d 38. 34J (24 Cr. 20(b)- Here, Plaintiffs have failed to meet thaI
burden: (a) they do not allege = actual, out-of-rocket toss; {b) they fail to show lital even if
they had sflëred any actual loss it could have been caused by TJeIbrdwits 1 alleged
misstatements or omissions, which would have affected the asIioti price ofPlaintiffs'
to the sm extent as they affected the sale pi-ic; and (c) they put Ibrwaid a theory of econornk
Ims - natriely, that they sold their shams at a dkixnint to their -true' value - that is a direct,
co]atera1 attack on the Bankruptcy Couris order conf irining Kaian s Chapter 1 1 Plan.
A. The Coin plaint dum not allege that any Pltiin(iff suffered
an out-of-pocket loss.
T]ic cind C'j xiiil adhems to an 1-of-p.,ckci nivaLivreluenil of Jamaes iii lOb-
Cr 1999) resot1iiig that the pioper measure of damages in a llTh-5 action cannot be based on
iLue speculation," and is the"difference, if any, between the pricc paid and the prioc rcecivcd
(Plaintiffs suffered no out-of-pocket loss since theb jnvcstinnb were iii]Iy repid11 and
thereforelLplainlffs can prove no damages' e also Exchange Act ' 28(a), 15 U.S.C.
7k hhai (1 [miting damages to the amount of a p]ainhifT a"actual damages on account of thc• act
complained. or (emphasis added)), Gurary v Winthouc 1 190 F.3d 37,46 (24 Cir 199)
(cornmon scnsc application of section 28a) oI the Exi.hange Act requires actual damages);
LNC liw,. Inc. v, F6M Fielfty Bk, Nn 92 C]v 75&4-1997 WL 52828. at ON IS.D.N.Y.
Aug. 2 1997 (explaining that "[u]ncLcr the Securities Echauge Act, atui1 damages are
measured by out-of-pocket b'). A plaintiff. thcre1.ire, cannot state a cLaLrn for securiuie
fraud by speculariveLy positing that, in the absence of fraud, he would have made an even greater
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rGI on the saic i-jfci.urjjj at isi,ic. C'rIj.L, 1. 76 1-- . 10 a.1 60 (concluding that tl,]esise
CrIisIc rognzcd u profit from thc of the I3nesio st0k 1 Carlisle dkl not suffer
icmp.ensabIe bnages entitling it to reeover j at 607 ("Carlisle did not suffer compenshle
damages beaue it recouped its entire I nvestment as wI] as a smal[ profit, when it resold the
aneslo hires7). In other words, where a plaintiff does not incur an actua' lass as a result of in
alleged misrepresentation s the pLa[ntiff suffers no cognizable dainaes under Rullo I Ob-5. Sec In
rc Estc Laudcr Cos. S. Litig.1 No. )t Civ, 250 207 WL. 1 522620, at * S.D.N.Y. May
2007) (grant -1 rig a rnoLion to disnñas a seenritics fraud complaint; "[als it is per1èii1y plain that
plaintiff would havc profcd ilhc sold after Sptcrn1xr 1], 20061 may have profited even if he
so Id before Septenr 11, 2006, and may we]I profit in the future if h has not yet sold, uh
complaint patently fails to plead loss causation for this reason aonir (foolnoW omitted)).
Hem, the Complaint does not allege that any Plaintiff sold his or it shares at a
loss. The lnidiiidua] Plaintiffs are alleged to have sold their shares for more tharj their valix as
of Krnart's cmrgnce r-m bwtknLpy! MPERS is alleged to have made a profit on its -thares.
and Plumb= and Pipefitters cks notdicloic the price paid for its shares, prec1uJng any
inference of loss. AtisnL ally allegaticin ofiul-f-pke1 lows on Knifl stock. Plaintiffs' uIe
lOb-S claim (aiLs aaa matiet of Law, && JIMS Rural 1.? i' GMU Capital Partners III, LP No
04 Ck'. 5 131, 2006 wL 16742, at 41 3 (S.D.N.Y July 6 2006) (because pIaintiffhas ncicctcd
to indicate exactly how it suliked ai" its Rule 1Ob-5 claim fails as a rnattcr of law"
.se also ['anos v. Island Gem Entyrs., Ltd., NIY.I O F. Sutpp 169, 176 (SDNY 1995)
1
Plaintiffs ciLv allege 1osss vis--vis the aniciunis tbc Individual P1ritL±Th paid for
(= compi. ¶ which were dischared by courl ordcr in the bankruptcy and
are not at issue here. The Complaint lwks any a1letion that any Plaintiff lost money on the
sale of Kmart stock-
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IeteI1flt.s -owrecth p( ous That in m o st brought under the. 1934 Act defrauded buyers
are restricted to recovering so11y thdr out-of-pocket losses" because "under most crcurns.tances
benefit-of-the-bargain damages are highly speculative'); 3 Thomas Lee Hazen Law of Sec. Re..
12-12[ 1 ] (Sth ed. 200) 9iIure to alIge or prove actual damages vAl I result in 1isnii&aI of
Any 1.]Him by PIittifls that they shu]J have made niC'r' rnoiey ihas they did on
sales of .Kmrt eomtnoii dock i S ir too s .eciihfli v Lc) -stpport a damages award. in Oofskv v.
ZipL the Second Circuit held thar benefit-of-the-bargaLn damages - the diffcrrice between
the niarkot vIijc if a sccurjtF and the value that would have eisted absent in alleged
certainty" - for example, in the lirnitcd situation . whcr m.reprcsncion is made in the
tender offer and proxy solicitation FnaWrWs as 10 [he corisidcration to bc fGrtheoming iqxrn an
intended rnerer." 645 F.2J 107, t 14 (191). Subscquent cascs have confined QaQfki to its
speiflc fet .nd rcjctcd drna awards in favor ofFLinLff whc did nt ]oe motcy t'ii
[heir invesrneris. 5= c.LjJ. 176 F.3d at &ii (Carlisle did not stiffer compensabLe damages
eittfliig it to recover the dift'ererice between the purchase price and the irue value' of the
damages only avaiLable when'they can be calculated with rcsc'nab1c crtainty); Dnw V.
sellers' class where appdLants proposed c]airn is bascd on Ihc value the sLiiCk p(lrtedLy
would have had if Forest's true financial comditiori had b*eri publicly knoi- at The time of the
Forest Labs.. Inc , benelit-of-the-bargain damages arc only available 'there predi'at on lithe
-
bargain that was acival ly tnick. not on a bargain whose terms must be supplied by hypothes
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about what the parties wcnild have donc if the circtim.es sorrouridi tig their tranuction had
and explaining that ]be concept of recovery ofd rnaes for a benefii-of-thc-baraiii is
founded on the ag,eemeru nade not on a proposed hypothetcaI agreernmt built on outside
eirldence and on speculation regarding what the parlies might have done or rcccivcd had the
cLrcurnstances surrDunding the agreement been cLiffcreni (crnpLiaiis in originid and iriin:iaJ
damages Lijave bem reected as a matter of low, any damages suffered by Flatntiffs as a result of
the iIIged tiet of KmrtTs real estate 1.ralue cannot possibly be established "with
rea'.)nabIL certainly-" Thus. P]a5nLiffs are I Lrnited as a matter of law to out-of-pocket darnac
ariif having ii!cd 10 a] kg any .slLchi damacs, thcir ulai= cnit be dsmis-ed See. Barrow, 742
F .2d at 60 (affirming an order grtuiing a motion to dismiss a ncurities fraud complaint because
IL[I]ht jsi i ,at whether appellants were entitled to assunie that the market price of th Forczst
stock in 1969 refEeieied Forets true financial iidition, but instead whether they have suffered
Legally compensabic darnagts as a rcsut orthe fact that Li d4 not"); see aj w Carl isle, 176 F.3d at
607 (reversing the Di strict Ccii.irt' judgment awaMiig damages to Carlisle where CarlisLe hias
cited no case in which a court awded a purchaser of shares the difference between the purchase
price ad the acWl iri.i value of tEe shares at the time of the purchasc when the pur-chwr hd
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Qjir that P1a4iiffs benLflted from the steadily increasing price or Kmari harea
during the Class Pe.rod, they canmol allege an actual ]oss because they have not suffered one.
Instead P]einl[fTh complain that tIiy could have proIitcd more from the sale of their Kinart
5ham in thabsc'ricc of an aticcd "fraud dtscciunl. 1' As matter of Law! however, PIanUs
eaJinet show ftny Jamaes Mulling from that suppuscd fraud diowttF because, hsid on (he
f4cls al kd in the Cornplain( the al1ecd dcfrimcnt suffcrd by Plaintiffs from the fraud
dscount' when they sold Kmiirt sham (ic, a chcapr sales price) would exactly offset the
bcnclit realized by Plaint -] iTs from the "fraud discount" when thcy acquired Krnad shares (j1 ii
cheaper prc1iase
In Dura, the Sipwmc Court held that, where a pi.Erchascr in a IOh-5 me LLI[
the
shares quickly heforc the relevant truth bcgins to Lck out, the mis preicnIIon will not have led
to any loss. 544 US dl 342. Under Dura ihcrefrc 1 a purhsr alleging the existence of a
"fraud premium" can state a c Laim for securitLes fraud only If he holds his shares mlii the 1ra4
123931. at 116 aLI) Ciii, Jan. 9. 202) (class members who bought and sold afl of their
shares during the Class Period and held none at. the time of the purportedly corrective disclosure'
W 11 90267, at (N.D. Cal. May 3 200 (Hcr, sinve rrcJve disclosure is alleged to
have occurred only from July 2001 onwards under Dura there cai1 be no loss c3usiitki1 for
plaintiffs who purchased and sold stock at the inflated share pi-wc 1:11-Lot to that dicksure, and
thus these plainti ffs may not recover at au]?) In re ProtietlLnk Sec Liti., No. 03 Civ.
2295. 2006 WL 102906. at • 1 SNV. Apr. 19. 2006) ([A]s a maticr of purc log -1c, l the
Case 1:06-cv-04053-LAK Document 65 Filed 05/30/08 Page 16 of 20
mOniejit the transaction takes p]acc the plaintiff has suf1crd no loss. the inflated purchase
;
ymexn is offset by ownership of a share that at that instant sses cqrAivalent 'ikie")
The exact same logic applies to th[s case, whrc Plaintiffs allcge that they sold
their shams t"fraud di :junL WIieLher Flainitifa acquired thcir sIiarci though the
bmkrupLy proct:-qs or thereafter in the open market, the market was. according to Plaintiff,
laboring under the same misconmpti=3 about Kmartts re-al estate value as it was whci Plaintiffs
sold theiT share. Aecordirigly, whatever the amount of the alleged &aud discount," it was
Defining the p&amctcrs of putative class In Pevie ' Sears, Roebuck &. Co., the 1JS.
District Court for the Northern D[stiict of Illinois granted a miMiorl for class certificaiLon in part
and declined to apply the reasoning of Dura in that con1cx( lo all mmberi of the putative class
that sciLJ sIiarei aiter alleged merger discussions became material but bcforc they Wffe dise[Oed
496 F. Supp 2d 944 (2007), in so ruling, and without ciiaiion to any thoriy, the Court
concILfrcled dial at kast sonic mcmbcrs of the pxive -class who lvght shares before the secret
merger negotiations allegedly became material, and sold thcm aftcr the ngo1iations bcnie
material but bcforc they wcrc d igelomiL may have been damaged. I'! at 94. Wliatcvcr the
merits of this decision on class certification, it is 'who]ly inapposite F.ere where the
L
claim is that
Kmnart share pri-es wele depressed throughout the entire c.]ass period bocaus Oj th allegedly
wrongful nondisclosure othe supposed "truevalue' of Krnart's real estate hold iiigs, The Le'ie
decision is also irrelevant to. if not at odds with, the 5eeuncl Circuit case law, discusscd supr
Part [A.. that requires a plaintiff to p[cI out-of-pockcL loss to sti:Ite a claim for securities fraud
md holds that a plaifltiff cannot satisfy his obligation ioplcd proper damages by contendiri
that hu should Imv received an even greater profit than that he already epijoyed
Plaintiffs aIlee that the truth began to LLk5 out11 as of June 4 2004, Cornpl. ¶ M. Any
Plainliti that sold after the leak began rcecivd the benefit of the alleged fraud discount" in
the atIsitiori of the shares and something closer to the supposed ' -true value. of the shares
upon the sale, thus enjoying a windfalL and certainly not sulfcring any drrtage.
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reorganization is treated as a linal JLlIgrner1L given preclusive effect under the doctrine of res
udicata. S.a Stoll v. Gott1ieb 305 U.S. 165. 170-71 (1938) Sure-Snap Corp. Y.
& Trust Co.. 94 g F.2d 969, 873 (24 Cir. 1991). Thus, "1y attempt by the. parties or those it
privity with them to re1Iiate any of the mtes that were misd 21ccuId ]ive See.ti raised in a
Chapter II case is flatly barrecL 2XI32M 948 1,4 at 873 (emphasis in original and internal
bind the debtor. any cntty iuing scci.rities under the pIri any entity acquir -Yng property .rnder
the plan, and any creditor, equiLy .;ei.i.!ry hoiJer. or i.jier:.I ptrner in the debr. whether or not
the elam or rntersI of such creditor,equity eurity holder. or general partner is impaired under
the pPat uO whether crr not s=h creditor, equity security holder, or e.nera1 partner has accepted
the plan"). Here, Individual Plaintiffs who received Kmart sh&rcs through the barkruptcy
process - as well as the Instituiional PlairiL[ffs, who bouhc shares in the open market and arc
necessarily in privily with creliiors who acquired such shares through the bankruptcy proem -
arc prcicbdcd from Ghalicngirig the Bnkrupty Court's valuation of Km1's r e al e4.ate interts.
SCC SILr-c,-Sna 948 F .2d at oafrrned plan bi rids eredi tors and those i n pt[''1ty with thent
lo all the plan's peovisions"(emphis in origi.na])); = ghg !i tie pence, 90 Id 1107, 1110
{lih Cit. l9)) [Ijiistead ofattaId rig the valuation head-on at ihe confirmation hearing
Vwcestlter has c1oseri a col Lateral attack on the conflrniatLon order where valuation may not be
ec}rLteste4.T'j; In re Emerald AejuLsition Corp.. 170 WR. 632 644 Bankr. N.D. Ill. 1994) (LLk1 its
Valuation Claims. Artra assai!s the valuation lcslirnoriy accepted by the court in the Ib.nkruptcy1
proceeding and the role of the Director Defendants in pmpounthng Much testimony. The proper
forum in which to object to the testimony was the bnPripiv court dur[ng the [bankruptcy]
proceedin).
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Case 1:06-cv-04053-LAK Document 65 Filed 05/30/08 Page 18 of 20
bankruptcy - the, prc.ise maNT as to wiiçh Plaintiffs c[a[m misMtements QF arnissior4 were
made., causIng them dainagee - was adjudicated by the Bankruptcy Court Indeed, because the
Bankruptcy Code requires that a debtors claimho[Jers receive at least as much property through
had to be adjudieat.cd. In compliance with that requirenient the Bankruptcy Court squarely
detcrniined that Kmans creditors would receive more property in the form of new Kinart eujty
than if Kniaji's assets, inducting leasehold and fee interests, were sold. See Confirmation Order
(K [cinhaus Dec] Ex. 2) at 14. Th Court also hc]d that [tIhc I qutdacion ana[yii in .Apperi.1 69
13 10 the DicIosuce .St mtt" iiehdiii.g Ri,c6wE,o4 Gemlt% -J's vol uatico of Kmojfs real estite
M between $593,359,010 and $7 F 967000 on a [iquidalion basis and the supporting evidence
"are peNuask'e. credihie and ?ccurate as of the daws such evidence was prepared, presnied, or
Courts havc not hcsitatcd to dimss or cnjoin attacks on eonfinintion ordms that
masquerade as independent fraud c I ai rn& In Browning Frostok 1 for exam pie, a former Chapter
II debtor's junior bondholders sued a senior bondholder and the debtor's former management
for fraud two years after the debtor emerged from bankmptcy, aI]eing that the defendants
caused the court to undervalue the debtor by conceaIin a cost-savings plan that would bc
implemented seven months aller confirmation. 165 S.W.3d 336 341-42 (Tx. 2005). As in this
caw, plaintiffs' claims in Browning "necessarily tum[cd] upon what Ihjudgrncnt of the
bankniplv court should have n" wiih rcpi 10 valuacl or of the debtor. 1d at 347- In
dismi-.i rig the Pwsi.iL the Con cocIu'cted that the plaintiffs' fraud claims "coiistitute[dT an
impe:rtiiible collateral attack on the bankruptcy's confirmation order." 14 at 349.
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Case 1:06-cv-04053-LAK Document 65 Filed 05/30/08 Page 19 of 20
ireIiIIei-. v1'I':} al kged tIkc rivate plan roporenLS1 iieiJ wdi.]y kw Financial projections
so as to posh down the dbiovs projected mowimWn vhe, 43 FJd 76, 7-67 (16t Cit.
1995) The Court concluded that the brinIriptcy disclosures at issue wee open to allck
[during the bankruptcy pr edLngs],1 and that the shrhoIders poiritted] to noihiiig in the way
of newly dioveied evidence that could explain why ihe criticisms now made could not hive
See Sire-Snaj. 94 F-2d at 875 ( [flundameniI to [] bnki-upty court i ilr4rg of how much
(iFe debtorl owed[ I]s a finding of how mwh [the debloti had - what vestigial worth its
business had reiained 1 Plaintiffs would only be, able to establish that they sold Kmirt shares at
a kiss - which they do not allege, even conclusorily - by attaddng the third-party valuation
adoitcd by the Bankruptcy Court in its Confirmation Order and contcndirig thai the shares
PI-minil ffs rcccivod in the bnkrupev werc actually worth more at the timc than the Bankruptcy
Court eoclude1 those shwrs were worth Such a nkd aItck on the Cinfluinatioi OJrr nrns
CONCLUSION
For each of the reasons staled above, the Complaint should be dismissed without
leave to anicrd.
LO
Insofar as PlairiiilTh aim to dmoristrate they ftit moriy 11 on Kmaii sFire. they haw
never made any effort Lo seek relief from the Bankruptcy Court's Con ri inaiior Order. Platfliifs
cannot evade their obligation to do so siniply by assening this new action in the District Court.
CI'. In re Lawrence, 29:1 F.3d 615, 624 (24 Cir. 2002) (pct-sale-order securities fraud claims
brought in Bankruptcy Court effectively seeking relief from Bankupty Cctr' sale order)
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Case 1:06-cv-04053-LAK Document 65 Filed 05/30/08 Page 20 of 20
Diiid B An - DA-6932)
Izear
Emil A. Kleirthatis (K-671)
Jmithan E. Goftirn (IG-057)
1 WOOS 2rntStxeit
Nw York, NY 10019
Telephone (212) 403-1000
Fao,jimile , (2 12) 4032000
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