Shareholders Sue No Matter What

From the Chicago Sun-Times:

Judge OKs lawsuit by those who lost money during Kmart takeover

A federal judge in Chicago has given the green light to plaintiffs who charge that Sears Chairman Edward S. Lampert and former Sears CEO Alan Lacy failed to tell shareholders they were plotting Kmart’s takeover of Sears Roebuck and Co.

The plaintiffs making the complaint sold their Sears stock between Sept. 19 and Nov. 16, 2004, and lost out on a spike in Sears’ share price that occurred when Kmart and Sears announced Nov. 17, 2004, that Kmart would acquire Sears.

U.S. District Judge Robert W. Gettleman ruled that the aggrieved shareholders cited sufficient facts so they can try to prove that Lampert and Lacy violated securities laws by failing to fully disclose their negotiations.

The shareholders allege that Sears, with Lacy’s knowledge, was repurchasing shares at what they contend was an artificially low price, effectively increasing the interest of Lampert’s hedge fund and making Kmart’s takeover of Sears easier.

Now not only do we have shareholders who sue when stocks they own take a tumble, we also have those who sue when stocks go up after they sell? Lawsuits in this country are really getting out of hand. Let’s go through a few reasons why this story is ridiculous.

First of all, the headline doesn’t even make sense. You can’t “lose money” on a stock you no longer own. Missing out on profits and losing money are not the same thing. If you thought about buying a Powerball ticket when the jackpot hit $200 million but decided not to, you didn’t lose out on a chance to win the lottery. You simply chose not to play.

The basis of the lawsuit is that Kmart management failed to disclose they were in merger negotiations. What company in their right mind would disclose this? As soon as news of such talks hit, Sears stock would have rallied, raising the price Kmart would need to pay. This would hurt Kmart shareholders, not help them, making the deal less attractive financially. Arguing somebody broke securities law by not disclosing buyout negotiations, which could easily have broken down, is preposterous.

They go on to say that Sears was repurchasing stock at low levels to make Kmart’s takeover easier. There would be no reason for Sears to do this, it would not have a meaningful effect. Sears stock was cheap. That explains why Sears was buying back shares and why Kmart was interested in a business combination. That is just a good use of capital by both sides. Shareholders of both Sears and Kmart should be happy about that. In fact, the reason the stocks soared once news of the merger broke was because it was perceived as such a good move. Both retailers were struggling and this was seen as a way to get smaller, leaner, and more profitable.

Current Sears Holdings shareholders need not be worried. This Chicago Sun-Times article is the second I’ve read in recent days that sharply criticizes and questions the current retailing strategy of Edward Lampert and company. As long as people are still negative and focused on retail strategy and not economic value, I’m happy to be a shareholder of Sears Holdings.