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Robert F. Booth Trust v. Crowley

February 26, 2010

ROBERT F. BOOTH TRUST AND RONALD GROSS, DERIVATIVELY ON BEHALF OF NOMINAL DEFENDANT SEARS HOLDINGS CORPORATION, PLAINTIFF,
v.
WILLIAM C. CROWLEY, EDWARD S. LAMPERT, STEVEN T. MNUCHIN, RICHARD C. PERRY, ANN N. REESE, KEVIN B. ROLLINS, EMILY SCOTT AND THOMAS J. TISCH, DEFENDANTS, AND SEARS HOLDINGS CORPORATION, NOMINAL DEFENDANT.



The opinion of the court was delivered by: Hon. Ronald A. Guzman United States District Judge

Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Plaintiffs Robert Booth Trust and Ronald Gross have sued defendants on behalf of nominal defendant Sears Holding Corporation ("Sears") for their alleged violation of section 8 of the Clayton Act, 15 U.S.C.§ 19, and breach of fiduciary duty. The individual defendants and Sears have filed Federal Rule of Civil Procedure ("Rule") 12(b)(6) motions to dismiss the Clayton Act claims. For the reasons set forth below, the Court denies the motions.

Facts

On March 24, 2005, Kmart Corporation and Sears, Roebuck and Co. merged, creating nominal defendant Sears. (Am. Compl. ¶ 6.) Non-parties Jones Apparel Group, Inc., a clothing and accessories retailer, AutoZone, Inc., an auto parts retailer, and AutoNation, Inc., a provider of auto repairs and services, are competitors of Sears. (Id. ¶¶ 2, 23-35, 38-44, 47-50.)

Plaintiffs have owned stock in Sears since 2008, when the Sears Board was comprised of the eight individual defendants: William C. Crowley, Edward S. Lampert, Steven T. Mnuchin, Richard C. Perry, Ann. N. Reese, Kevin B. Rollins, Emily Scott and Thomas J. Tisch. (Id. ¶¶ 5-6.) Lampert has been a Sears Board member since March 24, 2005 and is now Board Chairman.

(Id. ¶ 8.) He is also the owner, Chief Executive Officer ("CEO") and Board Chairman of ESL, which owns 54.1 percent of Sears, 45 percent of AutoNation and 43.67 percent of AutoZone. (Id.)

Crowley has been a member of the Sears Board since March 24,2005, a member of the AutoNation Board since 2002 and a member of the AutoZone Board since August 18, 2008. (Id. ¶ 7.) He is also President and Chief Operating Officer of ESL. (Id.)

Mnuchin has been a Sears Board member since March 24, 2005 and is Chairman of its Nominating and Corporate Governance Committee. (Id. ¶ 9.)

Perry no longer serves on the Sears Board but was a member of the Board and its Nominating and Corporate Governance Committee from 2006 through May 4, 2009. (Id. ¶ 10.)

Reese has been a Sears Board member since March 24, 2005 and has been a member of the Jones Apparel Board since 2003. (Id. ¶ 14.)

Rollins, Scott and Tisch have been Sears Board members since February 20, 2008, May 4, 2007, and March 24,2005, respectively. (Id. ¶¶ 11-13.)

In late 2008 or early 2009, defendants nominated Reese and Crowley, among others, to serve another term as Sears Board members and recommended that the shareholders re-elect them. (Id. ¶¶ 53-59.) At Sears' May 4, 2009 annual meeting, the shareholders did just that. (Id. ¶ 60.) Plaintiff contends that ...


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