J.C. Penney, which also is struggling with big losses and steep sales declines, could face another challenge: empty shelves.

New York State Supreme Court Judge Jeffrey Oing told Penney on Monday the chain took a risk by ordering products from the company home diva Martha Stewart founded. Oing said he could force Penney to stop the products as they come off the docks if he determines the order violated Martha Stewart's agreement to sell certain goods only to Macy's.

"That's the risk your client took," Oing said. "Ultimately, you guys played it out."

The judge's statements came during a trial that pits Penney against Macy's over their relationship with Martha Stewart Living Omnimedia. At issue is whether Macy's has the exclusive right to sell some of Martha Stewart branded products.

In late New York trading, Penney shares were down 6 percent at $16.62 each.