Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14,...
-
Upload
charles-e-colman -
Category
Documents
-
view
221 -
download
0
Transcript of Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14,...
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
1/22
19717590
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
MACYS, INC. AND MACYS MERCHANDISING GROUP, INC.,
Plaintiffs,v.
J.C. PENNEY CORPORATION, INC.,
Defendant.
MACYS, INC. AND MACYS MERCHANDISING GROUP, INC.,
Plaintiffs,v.
MARTHA STEWART LIVINGOMNIMEDIA, INC.,
Defendant.
Index No. 650197/2012
Hon. Jeffrey K. Oing(IAS Part 48)
ANSWER TO AMENDED COMPLAINT
Defendant J.C. Penney Corporation, Inc. (JCP) answers the Amended
Complaint of Plaintiffs Macys , Inc. and Macys Merchandising Group , Inc. (together,
Macys) , as follows:
JCP asserts that the headings and sub-headings in the Amended Complaint are
argumentative and require no response. To the extent any response is deemed necessary, JCP
denies each and every allegation deemed to be contained in each such heading and sub-heading.
1. Paragraph 1 alleges the nature of the relief Macys seeks in this action and
accordingly does not require a response. To the extent a response is required, JCP admits that
Macys Amended Complaint seeks an injunction, damages, and other relief against JCP.
2. JCP denies the allegations of Paragraph 2.
LED: NEW YORK COUNTY CLERK 01/14/2013 INDEX NO. 652861/2012SCEF DOC. NO. 269 RECEIVED NYSCEF: 01/14/2013
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
2/22
219717590
3. JCP admits that Macys Merchandising Group and MSLO entered into a written
License and Promotion Agreement dated as of April 3, 2006 (the Macys Agreement). JCP
admits the first sentence of footnote 1. JCP lacks information sufficient to form a belief as to the
truth of the remaining allegations in footnote number 1 and the allegations in footnote 2 and
on that basis denies such allegations. To the extent Paragraph 3 makes allegations concerning
the terms of the Macys Agreement, JCP denies such allegations, except to the extent the
allegations accurately reflect the contents of the Macys Agreement, and respectfully refers the
Court to the Macys Agreement itself f or evidence of the complete contents thereof. JCP denies
that a complete copy of the Macy's Agreement is attached to the Complaint as Exhibit 1.4. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 4 and on that basis denies such allegations.
5. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 5 and on that basis denies such allegations.
6. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 6 and on that basis denies such allegations.
7. JCP denies the allegations in the first two sentences of Paragraph 7. JCP admits
that a document entitled Press Release is attached to the Complaint as Exhibit 2. JCP denies that
Exhibit 2 accurately describes the Exclusive Products as defined by Exhibit I to the Complaint.
JCP further denies that Exhibit 2 sets forth the term of Exhibit 1. JCP admits that Exhibit 2
refers to options for renewal. JCP lacks information sufficient to form a belief as to the truth
of the remaining allegations in Paragraph 7 and on that basis denies such allegations.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
3/22
319717590
8. JCP admits that a copy of a letter dated January 23, 2012 is attached to the
Complaint as Exhibit 3. JCP lacks information sufficient to form a belief as to the truth of the
remaining allegations in Paragraph 8 and on that basis denies such allegations.
9. JCP admits that MSLO engaged Blackstone Advisory Partners. JCP further
admits that a copy of a document titled News Release is attached to the Complaint as Exhibit
4. JCP lacks information sufficient to form a belief as to the truth of the remaining allegations in
Paragraph 9 and on that basis denies such allegations.
10. JCP admits the allegations in Paragraph 10.
11.
With respect to the allegations in Paragraph 11, JCP admits that its 2010 saleswere up 1.2% year over year and that its 2010 sales were more than 10% below its 2007 sales.
JCP denies the remaining allegations in Paragraph 11.
12. JCP denies the allegations in Paragraph 12.
13. JCP lacks information sufficient to form a belief as to the truth of the allegations
in the second sentence of Paragraph 13 and on that basis denies such allegations. JCP denies the
remaining allegations in Paragraph 13.
14. JCP denies the allegations of Paragraph 14, except to the extent the allegations
accurately reflect the contents of the Macys Agreement, and respectfully refers the Court to the
Macys Agreement itself for evidence of the complete contents thereof.
15. JCP admits that it asked MSLO for a copy of the Macys Agr eement as part of its
due diligence in connection with JCPs substantial investment in MSLO and contemporaneous
commercial arrangement. Except as expressly admitted, JCP denies the allegations of Paragraph
15.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
4/22
419717590
16. JCP admits that MSLO informed JCP that the Ma cys Agreement contained a
confidentiality provision. Except as expressly admitted, JCP denies the allegations of Paragraph
16.
17. With respect to the allegations in Paragraph 17, JCP admits that MSLO provided
JCP with summaries and excerpts of certain terms of the Macys Agreement, as well as a
redacted version of the Macys Ag reement. JCP denies the remaining allegations in Paragraph
17.
18. With respect to the allegations in Paragraph 18, JCP admits that it made an
investment in MSLO and that it negotiated a contract with MSLO in 2011. JCP lacksinformation sufficient to form a belief as to the truth of the allegations in the third sentence of
Paragraph 18 and on that basis denies such allegations. JCP denies the remaining allegations in
Paragraph 18.
19. JCP admits the allegations in the first, third, and fourth sentences of Paragraph 19.
JCP lacks information sufficient to form a belief as to the truth of the allegations in the second
sentence of Paragraph 19 and on that basis denies such allegations. JCP admits that a copy of the
December 7, 2011 News Release is attached as Exhibit 6 to the Complaint. JCP denies the
remaining allegations in Paragraph 19.
20. To the extent Paragraph 20 makes allegations concerning the terms of the JCP
Agreement, JCP denies such allegations, except to the extent the allegations accurately reflect
the contents of the JCP Agreement, and respectfully refers the Court to the JCP Agreement itself
for evidence of the complete contents thereof. JCP admits that it invested $38.5 million in
MSLO. JCP denies the remaining allegations of Paragraph 20.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
5/22
519717590
21. To the extent Paragraph 21 makes allegations concerning the terms of the JCP
Agreement, JCP denies such allegations, except to the extent the allegations accurately reflect
the contents of the JCP Agreement, and respectfully refers the Court to the JCP Agreement itself
for evidence of the complete contents thereof. JCP denies the remaining allegations of
Paragraph 21.
22. JCP denies the allegations of Paragraph 22.
23. JCP admits that Macys commenced a lawsuit against MSLO on January 23,
2012 , and that in the course of that lawsuit, Macys publicly disclosed a copy of the Macys
Agreement, except for certain sensitive terms that were redacted. JCP denies the remainingallegations of Paragraph 23.
24. JCP denies the allegations of Paragraph 24.
25. JCP admits that JCP and MSLO entered into an amendment of the JCP
Agreement that is dated July 11, 2012. To the extent Paragraph 25 makes allegations concerning
the terms of the JCP Agreement (including as amended), JCP denies such allegations, except to
the extent the allegations accurately reflect the contents of the JCP Agreement, and respectfully
refers the Court to the JCP Agreement itself for evidence of the complete contents thereof. JCP
lacks information sufficient to form a belief as to the truth of the allegations in the fourth
sentence in Paragraph 25 and on that basis denies such allegations. JCP denies the remaining
allegations of Paragraph 25.
26. JCP admits that it has publicly promoted the JCP Agreement on numerous
occasions since December 2011, including at a press conference on January 25, 2012. JCP
denies the remaining allegations of Paragraph 26.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
6/22
619717590
27. JCP admits that according to MSLO, the Macys Agreement expires in January
2013. To the extent Paragraph 27 makes allegations concerning the terms of the Macys
Agreement, JCP denies such allegations, except to the extent the allegations accurately reflect
the contents of the Macys Agreement, and respectfully refers the Court to the Macys
Agreement itself for evidence of the complete contents thereof. JCP lacks information sufficient
to form a belief as to the truth of the remaining allegations in Paragraph 27 and on that basis
denies such allegations.
28. JCP denies the allegations in the fourth sentence of Paragraph 28. JCP lacks
information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 28and on that basis denies such allegations.
29. JCP admits that this Court held a hearing on July 13, 2012 in the Macys/MSLO
Lawsuit, and that this Court entered an Order in that Lawsuit on July 31, 2012, a copy of which
is attached as Exhibit 9 to the Amended Complaint. To the extent Paragraph 29 makes
allegations concerning the Courts ruling, JCP denies such allegations except to the extent the
allegations accurately reflect the contents of the Courts July 31, 2012 Order, and respectfully
refers the Court to the July 31, 2012 Order itself for evidence of the complete contents thereof.
30. JCP denies the allegations in the last sentence of Paragraph 30. JCP lacks
information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 30
and on that basis denies such allegations.
31. JCP denies the allegations of Paragraph 31.
32. The first sentence of Paragraph 32 allege s the nature of the relief Macys seeks in
this action and accordingly does not require a response. To the extent a response is required,
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
7/22
719717590
JCP admits that Macys Amended Complaint seeks an injunction, damages, and other relief
against JCP. JCP denies the remaining allegations of Paragraph 32.
33. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 33 and on that basis denies such allegations.
34. JCP admits the allegations of Paragraph 34, including that JCP directly competes
with and is one of Macys main competitors, but denies that it is a direct competitor of MMG.
35. JCP admits the allegations of Paragraph 35.
36. JCP admits the allegations of Paragraph 36.
37.
To the extent Paragraph 37 makes allegations concerning the terms of the MacysAgreement, JCP denies such allegations, except to the extent the allegations accurately reflect
the contents of the Macys Agreement, and respectfully refers the Court to the Macys
Agreement itself for evidence of the complete contents thereof. JCP lacks information sufficient
to form a belief as to the truth of the remaining allegations in Paragraph 37 and on that basis
denies such allegations.
38. To the extent Paragraph 38 makes allegations concerning the terms of the Macys
Agreement, JCP denies such allegations, except to the extent the allegations accurately reflect
the contents of the Macys Agreement, and respectfully refers the Court to the Macys
Agreement itself for evidence of the complete contents thereof. JCP lacks information sufficient
to form a belief as to the truth of the remaining allegations in Paragraph 38 and on that basis
denies such allegations.
39. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 39 and on that basis denies such allegations.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
8/22
819717590
40. To the extent Paragraph 40 makes allegations concerning the terms of the Macys
Agreement, JCP denies such allegations, except to the extent the allegations accurately reflect
the contents of the Macys Agreement, and respectfully refers the Court to the Macys
Agreement itself for evidence of the complete contents thereof. JCP lacks information sufficient
to form a belief as to the truth of the remaining allegations in Paragraph 40 and on that basis
denies such allegations.
41. JCP denies the allegations of Paragraph 41, except to the extent such allegations
accurately reflect the contents of the Macys Agreement, and respectfully refers the Court to the
Macys Agreement itself for evidence of the complete contents thereof.
42. JCP denies the allegations of Paragraph 42 and footnote 3, except to the extent
such allegations accurately reflect the contents of the Macys Agreement or any amendments
thereto , and respectfully refers the Court to the Macys Agreement and any amendments thereto
for evidence of the complete contents thereof.
43. JCP denies the allegations of Paragraph 43, except to the extent such allegations
accurately reflect the contents of the Macys Agreement, and respectfully refers the Court to the
Macys Agreement itself for evidence of the complete contents thereof.
44. JCP denies the allegations of Paragraph 44, except to the extent such allegations
accurately reflect the contents of the Macys Agreement, and respectfully refers the Court to the
Macys Agreement itself for evidence of the complete contents thereof.
45. JCP denies the allegations in the last sentence of Paragraph 45. JCP lacks
information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 45
and on that basis denies such allegations.
46. JCP denies the allegations of Paragraph 46.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
9/22
919717590
47. JCP denies the allegations of Paragraph 47, except to the extent such allegations
accurately reflect the contents of the Macys Agreement, and respectfully refers the Court to the
Macys Agreement itself for evidence of t he complete contents thereof.
48. JCP denies the allegations of the fifth and sixth sentences in Paragraph 48. JCP
denies the remaining allegations of Paragraph 48, except to the extent such allegations accurately
reflect the contents of the Macys Agreement, and respectfully refers the Court to the Macys
Agreement itself for evidence of the complete contents thereof.
49. JCP denies the allegations of the second, third, and fourth sentences in Paragraph
49. JCP denies the allegations of the first sentence of Paragraph 49, except to the extent suchallegations accurately reflect the contents of the Macys Agreement, and respectfully refers the
Court to the Macys Agreement itself for evidence of the complete contents thereof.
50. JCP denies the allegations of Paragraph 50, except to the extent such allegations
accurately reflect the contents of the Macys Agreement, and respectfully refers the Court to the
Macys Agreement itself for evidence of the complete contents thereof.
51. Upon information and belief, JCP admits the allegations in the first sentence of
Paragraph 51. JCP denies the remaining allegations of Paragraph 51, except to the extent such
allegations accurately reflect the contents of the Macys Agreement, and respectfully refers the
Court to the Macys Agreem ent itself for evidence of the complete contents thereof.
52. To the extent Paragraph 52 makes allegations concerning the terms of the Macys
Agreement, JCP denies such allegations, except to the extent the allegations accurately reflect
the contents of the Ma cys Agreement, and respectfully refers the Court to the Macys
Agreement itself for evidence of the complete contents thereof. JCP lacks information sufficient
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
10/22
1019717590
to form a belief as to the truth of the remaining allegations in Paragraph 52 and on that basis
denies such allegations.
53. To the extent Paragraph 53 makes allegations concerning the terms of the Macys
Agreement, JCP denies such allegations, except to the extent the allegations accurately reflect
the contents of the Macys Agreement, and respectfully refers the Court to the Macys
Agreement itself for evidence of the complete contents thereof. JCP lacks information sufficient
to form a belief as to the truth of the remaining allegations in Paragraph 53 and on that basis
denies such allegations.
54.
JCP lacks information sufficient to form a belief as to the truth of the allegationsin Paragraph 54 and on that basis denies such allegations.
55. To the extent Paragraph 55 makes allegations concerning the terms of the Macys
Agreement, JCP denies such allegations, except to the extent the allegations accurately reflect
the contents of the Macys Agreement, and respectfully refers the Court to the Macys
Agreement itself for evidence of the complete contents thereof. JCP lacks information sufficient
to form a belief as to the truth of the remaining allegations in Paragraph 55 and on that basis
denies such allegations.
56. JCP admits that it issued a press release on December 7, 2011, a copy of which is
attached as Exhibit 6 to the Amended Complaint. To the extent Paragraph 56 makes allegations
concerning Exhibit 6, JCP denies such allegations, except to the extent the allegations accurately
reflect the contents of Exhibit 6, and respectfully refers the Court to Exhibit 6 itself for evidence
of the complete contents thereof. JCP lacks information sufficient to form a belief as to the truth
of the allegations in the last sentence of Paragraph 56 and on that basis denies such allegations.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
11/22
1119717590
57. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 57 and on that basis denies such allegations.
58. JCP denies the allegations of the second sentence of Paragraph 58. To the extent
Paragraph 54 makes allegations concerning the terms of the JCP Agreement, JCP denies such
allegations, except to the extent the allegations accurately reflect the contents of the JCP
Agreement, and respectfully refers the Court to the JCP Agreement itself for evidence of the
complete contents thereof. JCP lacks information sufficient to form a belief as to the truth of the
remaining allegations in Paragraph 58 and on that basis denies such allegations.
59.
JCP denies the allegations of Paragraph 59 except to the extent such allegationsaccurately reflect the contents of the JCP Agreement, and respectfully refers the Court to the JCP
Agreement itself for evidence of the complete contents thereof.
60. JCP denies the allegations of Paragraph 60 except to the extent such allegations
accurately reflect the contents of the JCP Agreement, and respectfully refers the Court to the JCP
Agreement itself for evidence of the complete contents thereof.
61. JCP denies the allegations of Paragraph 61.
62. JCP denies the allegations of the first sentence of Paragraph 62. JCP denies the
allegations of the second and third sentences of Paragraph 62 except to the extent such
allegations accurately reflect the contents of the Macys Agreement, and respectfully refers the
Court to the Macys Agreement itself for evidence of the complete contents thereof. JCP lacks
information sufficient to form a belief as to the truth of the allegations in the last sentence in
Paragraph 58 and on that basis denies such allegations.
63. JCP denies the allegations of Paragraph 63.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
12/22
1219717590
64. JCP lacks information sufficient to form a belief as to the truth of the allegations
in the first and second sentences in Paragraph 64 and on that basis denies such allegations. JCP
denies the remaining allegations in Paragraph 64.
65. JCP admits that it developed a plan to transform the department store experience
and that the JCP Agreement was a part of that plan. JCP denies the remaining allegations of
Paragraph 65, except to the extent such allegations accurately reflect the contents of the JCP
Agreement and the Securities Purchase Agreement between JCP and MSLO (Securities
Purchase Agreement) , and respectfully refers the Court to the JCP Agreement and the Securities
Purchase Agreement themselves for evidence of the complete contents thereof.66. JCP admits the allegations of the first sentence of Paragraph 66. JCP lacks
information sufficient to form a belief as to the truth of the allegations in the second and third
sentences in Paragraph 66 and on that basis denies such allegations. JCP denies the allegations
in the fourth sentence of Paragraph 66.
67. JCP denies the allegations of Paragraph 67.
68. JCP denies the allegations of the first, second, and third sentences of Paragraph
68. JCP denies the remaining allegations of Paragraph 68 except to the extent such allegations
accurately reflect the contents of the JCP Agreement, and respectfully refers the Court to the JCP
Agreement itself for evidence of the complete contents thereof.
69. JCP denies the allegations of Paragraph 69.
70. JCP denies the allegations of the first sentence of Paragraph 70. JCP denies the
remaining allegations of Paragraph 70, except to the extent they accurately reflect the contents of
the Wall Street Journal article attached as Exhibit 13 to the Amended Complaint, and
respectfully refers the Court to Exhibit 13 itself for evidence of the complete contents thereof.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
13/22
1319717590
71. JCP denies the allegations of Paragraph 71.
72. JCP denies the allegations of Paragraph 72.
73. JCP denies the allegations of Paragraph 73.
74. JCP denies the allegations of Paragraph 74, except to the extent the allegations
accurately reflect the contents of August 14, 2011 emails between Steven Roth and Ron Johnson.
JCP respectfully refers the Court to those emails for evidence of the complete contents thereof.
75. JCP admits that its investment advisor, Peter J. Solomon Company, discussed
obtaining a copy of the Macys Agreement with MSLOs investment bankers at Blackstone
Advisory Partners. Except as expressly admitted, JCP denies the allegations of Paragraph 75.76. JCP denies the allegations of Paragraph 76, except to the extent the allegations
accurately reflect the contents of a September 14, 2011 email from Peter Cohen of Blackstone
Advisory Partners. JCP respectfully refers the Court to that document for evidence of the
complete contents thereof.
77. JCP denies the allegations of Paragraph 77, except to the extent the allegations
accurately reflect the contents of an email dated September 14, 2011. JCP respectfully refers the
Court to that document for evidence of the complete contents thereof.
78. JCP admits that Ron Johnson met with Martha Stewart and Lisa Gersh of MSLO
on September 20, 2011, but denies the remaining allegations in Paragraph 78.
79. JCP admits that at the September 20, 2011 meeting, Martha Stewart and Lisa
Gersh conveyed that MSLO had the ability to sell Martha Stewart products through MSLO
Stores, but JCP denies the remaining a llegations in Paragraph 79.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
14/22
1419717590
80. JCP denies the allegations of Paragraph 80, except to the extent the allegations
accurately reflect the contents of an email from Ron Johnson dated September 20, 2011. JCP
respectfully refers the Court to that document for evidence of the complete contents thereof.
81. JCP denies the allegations of Paragraph 81, except to the extent the allegations
accurately reflect the contents of an email from James Kenney dated September 21, 2011. JCP
respectfully refers the Court to that document for evidence of the complete contents thereof.
82. JCP admits that on September 21, 2011, Rich Brail of Peter J. Solomon Company
sent a due diligence request list to Peter Cohen of Blackstone Advisory Partners. JCP denies the
remaining allegations in Paragraph 82, except to the extent the allegations accurately reflect thecontents of the September 21, 2011 communication from Rich Brail to Peter Cohen, and
respectfully refers the Court to that document for evidence of the complete contents thereof.
83. JCP admits that on October 12, 2011, JCP sent a preliminary, non-binding
proposal to make a substantial financial investment in MSLO, and enter into a contemporaneous
commercial arrangement with MSLO, to Peter Cohen of Blackstone Advisory Partners. JCP
denies the remaining allegations in Paragraph 83.
84. JCP denies the allegations of Paragraph 84, except to the extent the allegations
accurately reflect the contents of the October 12, 2011 preliminary, non-binding proposal. JCP
respectfully refers the Court to that document for evidence of the complete contents thereof.
85. JCP denies the allegations of Paragraph 85, except to the extent the allegations
accurately reflect the contents of an email from MSLO dated November 1, 2011. JCP
respectfully refers the Court to that document for evidence of the complete contents thereof.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
15/22
1519717590
86. JCP denies the allegations of Paragraph 86, except to the extent the allegations
accurately reflect the contents of an email from MSLO dated November 1, 2011. JCP
respectfully refers the Court to that document for evidence of the complete contents thereof.
87. JCP denies the allegations of Paragraph 87, except to the extent the allegations
accurately reflect the contents of internal JCP communications dated November 1, 2011. JCP
respectfully refers the Court to those communications for evidence of the complete contents
thereof.
88. JCP denies the allegations of Paragraph 88, except to the extent the allegations
accurately reflect the contents of an email from MSLO dated November 3, 2011. JCPrespectfully refers the Court to that document for evidence of the complete contents thereof.
89. JCP admits that it understood that license agreement number 1 to refer to the
Macys Agreement. JCP denies the remaining allegations in Paragraph 89, except to the extent
the allegations accurately reflect the contents of an email from MSLO dated November 4, 2011,
and respectfully refers the Court to that document for evidence of the complete contents thereof.
90. JCP denies the allegations of Paragraph 90, except to the extent the allegations
accurately reflect the contents of an email from MSLO dated November 8, 2011. JCP
respectfully refers the Court to that document for evidence of the complete contents thereof.
91. JCP admits that JCP provided written materials to its board of directors in
connection with the boards approval of JCPs substantial investment in MSLO and
contemporaneous commercial arrangement. JCP further admits that those written materials state
that JCP reviewed non-public MSLO information, including merchandising agreements, as well
as other legal agreements that were provided in redacted form only to JCP lawyers, as part of the
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
16/22
1619717590
due diligence process. JCP respectfully refers the Court to those materials for evidence of the
complete contents thereof. JCP denies the remaining allegations in Paragraph 91.
92. JCP admits that its board of directors approved entering into the JCP Agreement
and that the JCP Agreement is dated as of December 6, 2011. JCP denies the remaining
allegations in Paragraph 92.
93. JCP admits the allegations of Paragraph 93.
94. JCP admits the allegations of Paragraph 94.
95. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 95 and on that basis denies such allegations.96. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 96 and on that basis denies such allegations.
97. JCP admits the allegations of Paragraph 97.
98. JCP admits the allegations of Paragraph 98.
99. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 99 and on that basis denies such allegations.
100. JCP admits that it did not inform Macys that it had obtained a redacted version of
the Macys Agreement from MSLO, but denies the remaining allegation s in Paragraph 100.
101. JCP adm its that it did not ask MSLO to inform Macys that MSLO had disclosed
a redacted version of the Macys Agreement to JCP, but denies the remaining allegations in
Paragraph 101.
102. JCP admits that it received a redacted version of the Macys Agreement from
MSLO, that it reviewed the redacted agreement as part of its due diligence in connection with
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
17/22
1719717590
JCPs substantial investment in MSLO, and that it did not return the redacted copy of the Macy s
Agreement to MSLO. JCP denies the remaining allegations in Paragraph 102.
103. JCP denies the allegations of Paragraph 103.
104. JCP denies the allegations of Paragraph 104.
105. JCP denies the allegations of Paragraph 105.
106. JCP admits the allegations of Paragraph 106.
107. JCP admits the allegations of Paragraph 107.
108. JCP admits the allegations of the first sentence of Paragraph 108. JCP admits that
an edited transcript of a May 15, 2012 earnings call is attached as Exhibit 15 to the AmendedComplaint. JCP denies the remaining allegations of Paragraph 108 except to the extent such
allegations accurately reflect the contents of Exhibit 15 to the Amended Complaint, and
respectfully refers the Court to Exhibit 15 itself for evidence of the complete contents thereof.
109. JCP denies the allegations of Paragraph 109.
110. JCP denies the allegations of the first sentence of Paragraph 110. JCP admits that
a MSLO letter dated January 31, 2012 is attached as Exhibit 16 to the Amended Complaint. To
the extent Paragraph 110 makes allegations concerning the contents of Exhibit 16, JCP denies
such allegations except to the extent such allegations accurately reflect the contents of Exhibit
16, and respectfully refers the Court to Exhibit 16 itself for evidence of the complete contents
thereof. JCP lacks information sufficient to form a belief as to the truth of the remaining
allegations in Paragraph 110 and on that basis denies such allegations.
111. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 111 and on that basis denies such allegations.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
18/22
1819717590
112. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 112 and on that basis denies such allegations.
113. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 113 and on that basis denies such allegations.
114. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 114 and on that basis denies such allegations.
115. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 115 and on that basis denies such allegations, except that JCP admits that MSLO
filed counterclaims against Macy's and respectfully refers the Court to the counterclaims for thecontent thereof.
116. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 116 and on that basis denies such allegations.
117. JCP denies the allegations of Paragraph 117.
118. JCP denies the allegations of the first and third sentences of Paragraph 80. JCP
admits the allegations of the second sentence of Paragraph 118.
119. JCP admits that since the beginning of 2012, MSLO has provided JCP with
hundreds of designs for a wide range of products. JCP denies the remaining allegations of
Paragraph 119.
120. JCP denies the allegations of Paragraph 120.
121. JCP denies the allegations of the second sentence of Paragraph 83. JCP denies
the remaining allegations of Paragraph 121 except to the extent such allegations accurately
reflect the contents of the JCP Agreement (including as amended on July 11, 2012), and
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
19/22
1919717590
respectfully refers the Court to the JCP Agreement itself for evidence of the complete contents
thereof.
122. JCP denies the allegations of Paragraph 122.
123. JCP admits the allegations of Paragraph 123.
124. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 124 and on that basis denies such allegations.
125. JCP denies the allegations of Paragraph 125.
126. JCP denies the allegations of Paragraph 126.
127.
JCP denies the allegations of Paragraph 127.
128. JCP denies the allegations of Paragraph 128.
129. JCP denies the allegations of Paragraph 129.
130. JCP denies the allegations of Paragraph 130.
131. JCP denies the allegations of Paragraph 131.
132. JCP denies the allegations of Paragraph 132.
133. JCP repeats its responses to the allegations of Paragraphs 1 through 132 as if fully
set forth herein.
134. JCP lacks information sufficient to form a belief as to the truth of the allegations
in Paragraph 134 and on that basis denies such allegations.
135. JCP denies the allegations of Paragraph 135.
136. JCP denies the allegations of Paragraph 136.
137. JCP denies the allegations of Paragraph 137.
138. JCP denies the allegations of Paragraph 138.
139. JCP denies the allegations of Paragraph 139.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
20/22
2019717590
140. JCP denies the allegations of Paragraph 140.
141. JCP repeats its responses to the allegations of Paragraphs 1 through 140 as if fully
set forth herein.
142. JCP admits that Macys Merchandising Group and MSLO are parties to the
Macys Agreement. JCP lacks information sufficient to form a belief as to the truth of the
remaining allegations in Paragraph 142 and on that basis denies such allegations.
143. JCP denies the allegations of Paragraph 143.
144. JCP denies the allegations of Paragraph 144, except to the extent the allegations
accurately reflect the contents of communications JCP received from Blackstone AdvisoryPartners, and respectfully refers the Court to those documents for evidence of the complete
contents thereof.
145. JCP denies the allegations of Paragraph 145.
146. JCP denies the allegations of Paragraph 146.
147. JCP denies the allegations of Paragraph 147.
148. JCP repeats its responses to the allegations of Paragraphs 1 through 147 as if fully
set forth herein.
149. JCP admits that it directly competes with Macy s, but denies that it is the only
direct competitor of Macy s for retail customers. JCP further denies that it is a direct competitor
of MMG.
150. JCP denies the allegations of Paragraph 150.
151. JCP denies the allegations of Paragraph 151.
152. JCP denies the allegations of Paragraph 152.
AFFIRMATIVE DEFENSES TO ALL CLAIMS
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
21/22
2119717590
FIRST AFFIRMATIVE DEFENSE
Plaintiffs claims are barred on the ground that any conduct of J CP was based on
its economic interest or was otherwise justified.
SECOND AFFIRMATIVE DEFENSE
Plaintiffs claims are barred on the ground that any conduct of JCP was
privileged.
THIRD AFFIRMATIVE DEFENSE
Plaintiffs claims are barred on the ground that Pla intiffs have failed to mitigate
damages.
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs claims are barred by the doctrines of waiver, estoppel, laches and
unclean hands.
Dated: January 14, 2013
MILLER & WRUBEL P.C.
By: /s/__________________________ Martin D. EdelAdam J. Safer 570 Lexington Avenue
New York, New York 10022Tel: (212) 336-3500
and
MUNGER, TOLLES & OLSON LLP355 South Grand Ave., 35th Floor Los Angeles, California 90071(213) 683-9100
Attorneys for Defendant J.C. Penney Corporation, Inc.
-
7/29/2019 Macy's v. J.C. Penney, 652861/2012 (N.Y. Sup. Ct.) (Answer to Amended Complaint, filed Jan. 14, 2012).pdf
22/22
22
TO:
Jones Day
Theodore M. Grossman, Esq.Michael A. Platt, Esq.222 East 41 st Street
New York, NY 10017(212) 326-3939
Attorneys for Plaintiffs Macys, Inc. and Macys Merchandising Group, Inc.