Dish Network, its chairman Charlie Ergen and several Board members were slapped this week with a potential multi-million dollar complaint by shareholders. And they want him and the individual Board members to pay up personally. In a verified shareholder derivative filing (read it here) on behalf of all Dish shareholders, the pension fund of Daytona Beach Police Officers’ and Firefighters Retirement System allege that since April 2013, Ergen has quietly been buying up more than $1 billion worth of debt from bankrupt wireless network company LightSquared, who Dish has a bid in for. Besides this big potential personal windfall for the Dish founder and controlling shareholder, the four-count complaint filed in federal court in Colorado on September 26, says Ergen also used a front company to put in a $2 billion bid for LightSquared in May 2013 to push up the auction price. “Thus, with this substantial debt purchase not only did Ergen take for himself (in stealth-like fashion) a strategic opportunity that was otherwise available to Dish, he did so knowing that his personal risk was minimized because the Company’s strategic plans already included purchasing more spectrum,” says the dense and detailed complaint. On July 23 of this year, Dish put in a $2.2 billion bid for LightSquared’s assets after a committee the company formed to look into a conflict of interest by Ergen was suddenly disbanded by the Board two days before. “This action arises from the complete failure of the Company’s Board of Directors (the “Board”) to withstand the domineering influence of Dish’s controlling shareholder Ergen,” claims the complaint.
In their request for a jury trial, which alleges unjust enrichment among its counts, the plaintiffs in this new suit want any profits Ergen may have or may yet make from the scheme, as well as a finding that Ergen and the Dish board breached their fiduciary duties in their actions in the matter. The shareholders also want punitive damages, they want money from the individual Board members for whatever the potential acquisition of LightSquared and the Harbinger lawsuit may have cost. Pre and post-judgment interest, legal fees and whatever else the court will give them are on the table too.
This is actually the second suit on this matter. On August 6, Harbinger Capital Partners, which is LightSquared controlling shareholder, field a $4 billon complaint in NY bankruptcy court against Ergen and Dish. They claim Ergen was playing both sides of the street to get control of LightSquared and then use his control of Dish to ensure the company purchased LightSquared’s spectrum assets. Perhaps even more damning to Dish and its angry shareholders is that if an August 30 proposed reorganization plan by LightSquared is approved, Dish won’t end up with any of the company’s assets.
Jeffrey Berens of Denver firm Dyer & Berens LLP as well as Joshua Littlejohn, Gregg Levin, William Norton and Christopher Moriarty of Mt. Pleasant, South Carolina firm Motley Rice represent the plaintiffs in the new case.
Deadline's Dominic Patten - tip him here.