Sears pensioners seek court action to recover billions paid to shareholders | CBC News (2024)

Sophia Harris · CBC News

· Posted: Feb 13, 2018 4:00 AM EST | Last Updated: February 13, 2018

Sears Canada pensionersare heading to court to try to recoup close to $300 million they say is missing from their pension fund following the retailer's demise.

Representatives for Sears pensioners will ask Ontario Superior Court onThursday to appoint a trustee to scrutinize nearly $3 billion paid in dividends to Sears shareholders —the biggest recipient of which was Eddie Lampert, CEO of U.S. hedge fund ESL Investments.

The pensioners'aim is to recover some of the dividend money, not just to help top-up their reduced pensions, but alsoto provide funds forother creditors owed money by Sears.

Lampert says there's nothing suspect about the dividend payments, but manyex-Sears employeesdisagree.

"There is good reason to believe that was inappropriate," says pensioner representative and Sears retireeKen Eady.

Trustee request 'not surprising'

A court document filed by the pensioners' legal counsel claimsthe dividend payments —totalling $2.934 billion —deserve close examinationby a litigation trustee.

The money came from the sale of valuable Sears Canada assets such as prime real estate. The dividends were paid out between 2005 and 2013, during a time when the retailer's sales and profits declined and the company's pension plan started to show a shortfall.

"Despite the company's continued financial deterioration, Sears Canada's board of directors approved the payment of dividends to its shareholders," states the court document.

It also takesaim at Lampert, stating that in 2005, Sears Canada came under the control of ESL Investments run by the U.S. businessman, who greatly benefited financially from the dividends.

"Through ESL, Lampert had direct and indirect control of shareholdings of Sears Canada at the material times, and was the main beneficiary of dividend payments," said the document

Eady says it wasinevitable that pensionerswould go afterthe dividend payments.

"It's not surprising that this would happen, givenin what universe is it correct for a company to sell its assets, pay the dividends and leave the creditors without anything?" he said.

Pension problems

Eady says, according to Sears' actuaries, the pension plan is underfunded by approximately $270 million. That meansabout 16,000 ex-Sears employees will face an estimated 19 per cent reduction to their pensions.

The looming shortfall has left many Sears retirees angry and distraught about their retirement prospects.

"It's going to hurt. I might have to get a part-time job to off-set what I'm not getting," said 72-year-old Attilio Malatesta. He spent more than half of his 44-yearcareer with Sears working in sales in Kelowna, B.C.

Malatesta says he's pleased about the plan to go after the dividend payments.

"It's a good thing," he said. "I think we've got a fair chance."

Sears Canada didn't respond to a CBC Newsrequest for comment.

But in a blog posted on the weekend, Lampert defended the dividend payments, stating that a company needs to provide adequate returns to shareholders to stay viable.

He said the payoutsdidn't hurt the retailer because it continued to invest in the company at consistent levels.

He also noted that in 2012 and 2013, Sears made its required pension contributions, even though $611 million waspaid out in dividends. However, by that point, theplan was already showing a deficit whichwas never recouped.

Lampertalso said that Sears' shareholders have collectively lost more than $1 billion since 2012, even when taking into account the dividend payments.

As for Sears Canada's demise, hesaid it was primarily the result of a costly, but unsuccessful, restructuring strategy launched in 2016.

"I raised concerns about this strategy with management but the company decided to proceed," he said.

Lampert is also CEO of Sears Holdings Corp. (SHC)in the U.S., which operates separately from Sears Canada.

He essentially became Sears' largest shareholder through ESLInvestments and his holdings in SHC which previously held a large stake in Sears Canada.

SHC also defended the dividend payments in a statement.

"Sears Holdings received dividends that were duly authorized by Sears Canada's board of directors during a time when Sears Canada was clearly solvent, with minimal debt," said spokesperson Chris Brathwaite in a statement.

"We believe any attempt to reclaim those dividends would be unfounded,"

Lampert also said the Sears Canada's pension plan's shortfall has been overestimated and suggests there won't even be a shortfall when the fund is paid out.

Retiree Eadydisagrees, butsays he wishes that Lampertwas right.

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