Docket #4486 Date Filed: 1/14/2010

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re:

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(KG)

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)

Chapter l

MERVYN'S HOLDINGS, LLC, et al.,

Debtors.

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) ) ) ) ) ) ) ) ) ) ) )

Case No. 08-11586

MICHELLEDTAZ, PATTY PINE and YASMIN ZIALCITA on behalf of

themselves and the other

similarly situated former employees of Defendant Plaintiffs,

V.

Adversary Proceeding No. 08-5 l8l0 (KG)

MERVYN'S LLC,

Defbndant.

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)

Re: Docket No' 4254

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The Court has considered the joint motion dated November 16, 2009 of the
above-captioned debtor (the "Debtor-Defendant"), and prospective class representatives,

Michelle Diaz, Patty Pine and Yasmin Zialcita (the "Class Representatives" or "Named
Plaintiffs"), on behalf of themselves and similarly situated prospective class members (together

with the Class Representatives, the "Class Members"), by and through their respective counsel (collectively the "Parties" or "Movants") for an order approving the proposed Settlement
Agreement (the "settlement Agreement")l settling WARN Act class claims and certain other claims (the "Joint Motion"). The Court finds:

' Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Joint Motion or Settlement Agreement, as appropriate.

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A.

The Court has entered an Order on December 8, 2009 granting preliminary

approval of the Settlement Agreement and approving the form and manner

of notice of

the

Settlement Agreement and the deadline for opting-out and objections to be given to all Class Members:

B.

Due notice has been given to the Class Members

of the proposed

Settlement Agreement, the right to opt-out of the Class, the right to object to the proposed
Settlement Agreement and the right to appear in person or by counsel at the faimess hearing; and

no other and further notice is required and such notice is deemed proper and sufficient under the
circumstances;

C.

The Court has held a fairness hearing on January 14, 2010 to consider

final approval of the Settlement Agreement;

D.

All

Class Members who did not exercise the right to opt-out of the Class

are bound by this Order and the terms of the Settlement Agreement;

E.

The terms of the Settlement Agreement are fair, reasonable and adequate

under Federal Rule of Civil Procedure 23 incorporated by Rule 7023 of the Federal Rules of Bankruptcy Procedure and the nine factor test the Third Circuit developed in Girsh v. Jepson,

szr F .2d l s3 (3d Cir.

1975);

F.

The Settlement Agreement was negotiated at arms' length and in good

faith, is fair equitable and in the best interests of the Debtor-Defendant's estate;
G. the Joint Motion;

other good and sufficient cause exists for granting the relief requested in

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I 3500605v.3

IT IS HEREBY ORDERED THAT:

l.

The Settlement Agreement, attached as Exhibit

A to the Joint

Motion, is APPROVED as fair and reasonable. The parties are authorized to implement its
terms.

2.
listed on Exhibits

class comprised of the two subclasses made up of the persons

and B (the "Class") to the Settlement Agreement is hereby certified for

settlement purposes only, pursuant

to Rule 23(a) and (b)(3) of the Federal Rules of Civil

Procedure, and Rule 7023 of the Federal Rules of Bankruptcy Procedure, with respect to their

WARN Act claims against the Debtor-Defendant and all other Claims released pursuant to the
Settlement Agreement.

3.
Class Representatives.

Michelle Diaz, Patty Pine and Yasmin Zialcita are appointed

as

4.

Lankenau

& Miller, LLP,

The Gardner Firm, P.C. and Margolis

Edelstein are hereby appointed Class Counsel.

5.

In full and final settlement of the Released Claims, the WARN Act

litigation is resolved through the Allowed Claims in the aggregate amount of $3,000,000.00
which is inclusive of the Service Payments to the Class Representatives, Class Counsel Fees, and

the employee portion of any applicable taxes and withholdings for each Class Member. The Allowed Claims shall be treated as administrative priority claims under $ 503 of the Bankruptcy
Code with respect to the Class Members and Class Counsel pursuant to the terms set forth in the Settlement Agreement.

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6.

The administrative claims sranted hereunder shall automatically

take effect without the need for Class Counsel or anv Class Member to take any further action to

seek allowance

of

such claims. The administrative claims sranted

to the Class

Members
any

hereunder constitute an accord and satisfaction, not a novation, and serve to

nulliff and void

and all claims previously filed by Class Members on account of any purported obligations of Debtor-Defendant under the WARN

Act and/or any other statute, regulation, ordinance or

common law requiring an employer to provide prior or advance notice of layoff or termination, or severance or separation pay or benefits.

7.

The Debtors schedules of assets and liabilities and the claims

as

registry with respect to the claims subject to this Settlement Stipulation are deemed amended
necessary

to implement the terms of the Settlement Agreement. Debtor-Defendant shall

be

authorized to take all necessary actions to expunge from its claims register any and all such voided and nullified claims.

8.

The Allowed Claims shall be entitled to payment in accordance

with the terms of the Settlement Agreement and any plan of liquidation confirmed in DebtorDefendant's Chapter I I Case or other disposition of Debtor-Defendant's Chapter I I Case. The
Settlement Agreement shall be binding upon (i) any liquidating trustee, plan administrator,

distribution agent and/or any other responsible person appointed pursuant to any chapter I I plan confirmed in these Chapter l

Case;

(ii) any Chapter 1l

Cases trustee appointed in these cases;

and/or (iii) any chapter 7 trustee appointed or elected in successor cases.

9.

The Released Claims are hereby released.

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10.

The Named Plaintiffs and Debtor-Defendant shall execute

dismissal with prejudice of this adversary proceeding, which shall be filed by Class Counsel with

the Bankruptcy Court upon the entry of this Final Order. Dismissal of the adversary proceeding

shall not abate or limit the effectiveness of this Final Order, including the releases set forth
herein and the terms and conditions of the Settlement Agreement.
I

1.

This Court shall retain jurisdiction, even after the closing of these

chapter I 1 cases, with respect to all matters arising from or related to the implementation of this Order.

Dated:

January

Wilmington, Delaware
THE HON PTCY JUDGE

lL;2010

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