With bankrupt retailer Sears still struggling to find a bankruptcy financing package to allow it to continue operating (although Reuters reported that a loan as much as $600 million may be available soon), an even greater headache has emerged for the company's owner: Sears creditors have asked bankruptcy court to probe transactions involving Sears' biggest shareholder, Eddie Lampert, that they say may have resulted in Lampert
stealing bilking them of $2.6 billion.
According to Bloomberg, based on a limited investigation since Sears filed for bankruptcy less than a month ago, the official committee of the company’s creditors said it believes there are claims over "related-party transactions" involving Lampert, his hedge fund ESL Investments and Fairholme Capital Management. In court papers, the committee also said some claims are related to Seritage Growth Properties.
"The circumstances surrounding the various transactions raise the possibility that ESL and other insiders may have exercised undue influence to siphon value away from the company on favorable terms," the creditors alleged in the documents.
It is now up to the judge to decide whether to grant the motion for a probe, which would give the creditors the power to subpoena documents and witnesses. And, as noted above, the probe comes at a sensitive time for Sears which is evaluating more funding and a potential sale that could stave off a liquidation.
According to Bloomberg, Lampert-related transactions to be probed include:
- July 2015 rights offering and sale-leaseback with Seritage, a publicly-traded real estate investment trust controlled by ESL
- The October 2012 separation of Sears Hometown and Outlet businesses
- An October 2012 spinoff of the debtors’ 45 percent interest in Sears Canada and the November 2014 rights offering for additional shares
- The April 2014 spinoff of the Lands’ End business
- Various financing transactions, in which assets including intellectual and real estate property, became subject to liens, and "various Company entities appear to have incurred material debt obligations to satisfy other debt"
In recent months, there has been growing speculation and accusations that during Sears' long-running collapse - which inevitably culminated with Chapter 11 - Lampert had (ab)used his position to cash-strip the now defunct company, using it as his personal piggy bank, allegedly infringing upon other stakeholders' rights.
If a probe is granted and finds that Lampert indeed exercised "undue influence" to impair other creditors and engage in "fraudulent conveyance", the billionaire hedge fund investor may end up having to plug the liquidity shortfalls with money out of his own pocket.