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Shenk Suit

Shenk Suit

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Published by Spencer Osborne

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Published by: Spencer Osborne on May 19, 2011
Copyright:Attribution Non-commercial

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05/19/2011

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UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK
ROBERT MICHAEL SHENK, Derivatively onBehalf of SIRIUS XM RADIO INC.,Plaintiffs,v.MELVIN ALAN KARMAZIN, GARYPARSONS, JOAN L. AMBLE, LEON D.BLACK, EDDY W. HARTENSTEIN, JAMESP. HOLDEN, JAMES F. MOONEY, JACKSHAW, GREGORY B. MAFFEI, JOHN C.MALONE, DAVID J.A. FLOWERS, CARL E.VOGEL, and VANESSA A. WITTMAN,Defendants,-and-SIRIUS XM RADIO INC.,Nominal Defendant.
 
::::::::::::::::::::: 
CaseNo.1:11-cv-02943-UAECF CASE_________________Jury Trial DemandedVERIFIED SHAREHOLDER DERIVATIVE COMPLAINT
Plaintiff, by his undersigned attorneys, submits this Verified Shareholder DerivativeComplaint (“Complaint”) in the name and on behalf of nominal defendant Sirius XM RadioInc. (“Sirius” or the “Company”) against certain directors and officers of Sirius named herein(the “Defendants”). Plaintiffs bases his allegations on personal knowledge as to his own actsand on information and belief as to all other allegations, based upon due investigation bycounsel, including: (a) review and analysis of public filings made by Sirius and other personswith the Securities and Exchange Commission (“SEC”); (b) review and analysis of pressreleases and other publications caused to be disseminated by certain of the Defendants andother persons; (c) review of news articles, shareholder communications, and postings on
Case 1:11-cv-02943-JSR Document 1 Filed 04/29/11 Page 1 of 69
 
 2Sirius’ website concerning the Company’s public statements; (d) review of other publiclyavailable
Case 1:11-cv-02943-JSR Document 1 Filed 04/29/11 Page 2 of 69
 
2information concerning Sirius and other persons; and (e) allegations and the contents of interviews with factual sources set forth in the complaint in
 Blessing v. Sirius XM Radio Inc.
,Civ. No. 1:09-cv-10035-HB (S.D.N.Y.) (the “Antitrust Action”), pending in this Court.
INTRODUCTION AND OVERVIEW
1.
 
This is a shareholder derivative action brought by a shareholder of Sirius onbehalf of the Company against certain of its officers and directors seeking to remedyDefendants’ violations of state
 
law, including breaches of fiduciary duties, grossmismanagement, waste of corporate assets, and unjust enrichment, that occurred betweenFebruary 19, 2007 and the present (the “Relevant Period”) and that have caused substantialmonetary losses to Sirius and other damages, including damages to its reputation andgoodwill. On behalf of Sirius, this action seeks damages, corporate governance reforms, anaccounting, rescission, and the imposition of a constructive trust to remedy Defendants’violations of law.2.
 
Sirius is the surviving company of a merger completed on July 28, 2008between Sirius Satellite Radio (“Sirius”) and XM Satellite Radio (“XM”), the only twoproviders of satellite digital audio radio services (“SDARS”). Due to the concentrated marketfor SDARS, the companies were required to obtain regulatory approval for the merger fromboth the U.S. Department of Justice’s Antitrust Division (“DOJ”) and the FederalCommunications Commission (“FCC”).3.
 
Prior to the merger, Sirius and XM were the only competitors in the market tosell SDARS in the United States. Vigorous competition between Sirius and XM kept SDARS
Case 1:11-cv-02943-JSR Document 1 Filed 04/29/11 Page 3 of 69

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