alden global suit

Case 1:11-cv-01946-RJS Document 1 Filed 03/21/11 of 9

JUDGE SULLIVANJames A. Hunter (JH-1910) 1HUNTER & KMIEC150 East 44th Street, No. 9ANew York, New York 10017Tel: (646) 666-0122

E (C-. FrAWFSE-Mail: [email protected]. r----2-:zi---Attorneysfor Plaintiff rm 2 4 201111 1.7...„,

UNITED STATES DISTRICT COURT i TD7N. y. iSOUTHERN DISTRICT OF NEW YORK CASHierat i

EMMIS COMMUNICATIONS CORPORATION,

Plaintiff, ECF CASE

v. No.

ALDEN GLOBAL DISTRESSEDOPPORTUNITIES FUND, LP; AGDOF SLP, COMPLAINT FOR RECOVERY

LLC (f/k/a ALDEN GLOBAL DISTRESSED OF SHORT-SWING PROFITS

OPPORTUNITIES FUND GP, LLC); and UNDER 15 U.S.C. 78p(b)RANDALL D. SMITH,

Defendants.

Plaintiff Emmis Communications Corporation, by its attorneys Hunter &

Kmiec, hereby complains ofDefendants, averring as follows:

JURISDICTION AND VENUE

This action arises under Section 16(b) of the Securities Exchange

Act of 1934, as amended (the "Act"), 15 U.S.C. 78p(b). Jurisdiction is conferred upon

this Court pursuant to Section 27 of the Act, 15 U.S.C. 78aa.


2. Venue is properly laid in this District pursuant to Section 27 of the

Act because some or all of the Defendants are found in and transact business in this

District and because some or all of the transactions described herein occurred in this

District.

THE PARTIES

3. Plaintiff Emmis Communications Corporation (“Plaintiff” or the

“Company”) is an Indiana corporation whose principal place ofbusiness is located at One

Emmis Plaza, 40 Monument Circle, Suite 700, Indianapolis, Indiana 46204.

4. Alden Global Distressed Opportunities Fund, LP (“Alden LP”) is a

Delaware limited partnership whose principal place ofbusiness is located at 885 Third

Avenue, New York, New York 10022.

5. Defendant AGDOF SLP, LLC (formerly known as Alden Global

Distressed Opportunities Fund GP, LLC) (“Alden LLC”) is a Delaware limited liability

company whose principal place ofbusiness is located at 885 Third Avenue, New York,

New York 10022. Alden LLC is the sole general partner ofAlden LP.

6. Defendant Randall D. Smith (“Smith” and, collectively with

Alden LP and Alden LLC, the “Defendants”) is a natural person whose principal place of

business is located at 885 Third Avenue, New York, New York 10022. Smith is the

managing member ofAlden LLC.

STATUTORY REQUISITES

7. The violations of Section 16(b) of the Act described herein involve

-2-


non-exempt securities in non-exempt transactions engaged in by non-exempt persons

within the meaning of the Act.

8. At all relevant times, the Class A common stock of the Company

was registered pursuant to Section 12 of the Act, 15 U.S.C. 78l, and was listed for

trading on The NASDAQ Stock Market LLC.

9. This action is brought within two years of the occurrence of the

violations described herein or within two years of the time when reports required by

Section 16(a) of the Act, 15 U.S.C. 78p(a), setting forth the substance of the

transactions here complained of were first filed with the U.S. Securities and Exchange

Commission (“SEC”).

FACTUAL ALLEGATIONS

10. At all relevant times, Defendants were shareholders of the

Company. Each Defendant beneficially owned in excess of 10% of the outstanding

shares of the Company’s Class A common stock.

11. In February, March, and April2010, the Defendants engaged in a

serious of transactions resulting in the purchase and sale of the Company’s Class A

common stock as described in paragraphs 12-22 below.

Defendants Enter into FourCash-Settled Equity Swap Agreements

12. Agreement #1: On February 25, 2010, Defendants entered into a

cash-settled equity swap agreement with a third party referencing 9,400 shares of the

Company’s Class A common stock.

-3


13. For purposes of Section 16 of the Act and the rules and regulations

of the SEC thereunder, the Defendants’ entry into the agreement described in

paragraph 12 above was equivalent in all relevant respects to the non-exempt purchase by

Defendants of 9,400 shares of the Company’s Class A common stock at the price of

$0.88 per share, such price being the contemporaneous market price of the Company’s

Class A common stock on the open market on February 25, 2010.

14. Agreement #2: On March 1, 2010, Defendants entered into a








Class A common stock on the open market on March 1, 2010.


cash-settled equity swap agreement with a third party referencing 12, 857 shares of the





Defendants of 12, 857 shares of the Company’s Class A common stock at the price of

-4-













20. Summary: The following table summarizes the Section 16

consequences of the transactions described in paragraphs 12-19 above:

Date of TransactionSection 16Treatment

Numberof Shares Price per Share

February 25, 2010Purchase of Class A

9,400 $0.88Common Stock

March 12010Purchase of Class A

83900 $0.90Common Stock,


12857 $0.90Common Stock,


200000 $1.00CommonStock,

-5-


Date ofTransaction

One or More of Defendants’ Cash-SettledEquity Swap Agreements Are Terminated

21. On April27, 2010, one or more of the Defendants’ cash-settled

equity swap agreements, referencing at total ofnot less than 250,000 shares of the

Company’s Class A common stock, were terminated.


of the SEC thereunder, the termination of the Defendants’ cash-settled equity swap

agreements as described in paragraph 21 above was equivalent in all relevant respects to

the non-exempt sale by Defendants of a total ofnot less than 250,000 shares of the

Company’s Class A common stock at the price of $2.20 per share, such price being the

contemporaneous market price of the Company’s Class A common stock on the open

market on April27, 2010, as described in the table below:

Section 16Treatment


April27, 2010Sale of Class A


April 27, 2010Sale of Class A












-6-


Date ofTransaction

Section 16Treatment


April27, 2010Sale of Class A








FIRST CLAIM FOR RELIEF

(AS TO ALL DEFENDANTS)

23. Plaintiff realleges and incorporates by reference the allegations in

paragraphs 1-22 above.

24. Certain of the sales described in paragraphs 21-22 above occurred

within six months of, and at prices higher than, certain of the purchases described in


25. Each Defendant had a pecuniary interest, directly or indirectly, in

the shares of the Company’s Class A common stock purchased and sold as described in


26. Under the “lowest-in, highest-out” method for computing realized

profits pursuant to Section 16(b) of the Act, Defendants realized recoverable profits as a

result of the transactions described in paragraphs 12-22 above in an amount equal to

approximately $310,000.

27. Pursuant to Section 16(b) of the Act, the profits realized by

Defendants as described in paragraph 26 above inured to and are recoverable by Plaintiff.

-7-


SECOND CLAIM FOR RELIEF

(AS TO ALL DEFENDANTS)

28. Plaintiff realleges and incorporates by reference the allegations in


29. This Second Claim for Relief is a precaution against possible

errors of detail attributable to gaps or inaccuracies in the public record, the failure ofany

Defendant to file accurate reports as required by Section 16(a) of the Act, or against the

discovery or execution of additional short-swing trades during the course of this action.

30. One or more of the Defendants purchased and sold shares of a

class of the Company’s equity (or derivative securities thereof) within less than six

months while a holder of in excess of 10% of the outstanding shares of any class of the

Company’s equity registered pursuant to Section 12 of the Act.

31. The purchases and sales described in paragraph 30 above cannot be

identified by Plaintiff with specificity because they have not been publicly reported, or

have not been accurately reported, and because Defendants have failed or refused to

disclose these trades (or the absence thereof) upon inquiry from Plaintiff’s counsel.

32. Each Defendant had a direct or indirect pecuniary interest in all of

the shares of the Company’s equity purchased or sold as described in paragraph 30

above.

33. The purchases and sales described in paragraph 30 above may be

matched against each other (or with other sales and purchases described herein) using the

“lowest-in, highest-out” method to arrive at profits, their exact amount being unknown to

Plaintiff, which profits inured to and are recoverable by Plaintiff.

-8-


PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment:

(a) Requiring each Defendant to account for and pay over to Plaintiff the

short-swing profits realized and retained by such Defendant in violation of

Section 16(b) of the Act, together with appropriate pre- and post-judgment

interest and the costs of this suit;

(b) Awarding to Plaintiff its costs and disbursements including reasonable

attorney's, accountant's, and expert witness fees; and

(c) Granting to Plaintiff such other further relief as the Court may deem just

and proper.

Dated: March 21, 2011New York, New York

HUNTER & KMIEC

By:.

Ja es A. HunterEast 44th Street, No. 9A

New York, New York 10017Tel: (646) 666-0122Fax: (646) 462-3356E-Mail: [email protected]

Attorneysfor Plaintif

-9-

alden global suit

Documents