Docket #4338 Date Filed: 12/8/2009

IN THE I.]NITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re: Chapter
Case
11

MERVYN'S HOLDINGS, LLC, et al.,

Debtors.

No. 08-11586 (KG)

MICHELLEDTAZ, PATTY PINE And YASMIN ZIALCITA on behalf of themselves and the other similarly
situated former employees of Defendant

Adversary Proceeding No. 08-51810 (KG)

Plaintiffs,
v.

MERVYN'S LLC,
Defendant. Re: Docket No. 4254

ORDER PURSUANT TO SECTION 105 OF THE BANKRUPTCY CODE AND BANKRUPTCY RULES 9OT9 AND 7023'TO G) APPROVE A SETTLEMENT PURSUANT TO BANKRUPTCY RULE 9019, (II) CERTIFY A CLASS CONSISTING OF TWO SUBCLASSES OF WARN ACT CLAIMANTS FOR SETTLEMENT PURPOSES ONLY, APPOINT CLASS COUNSEL, CLASS REPRESENTATIVES, AND PRELIMINARILY APPRO\TE THE SETTLEMENT PURSUANT TO BANKRUPTCY RULE 7023, (III) APPROVE THE FORM AND MANNER OF NOTICE TO CLASS MEMBERS OF THE CLASS CERTIFICATION AND SETTLEMENT, (IV) SCHEDULE A FAIRNESS HEARING TO CONSIDER FINAL APPROVAL OF THE SETTLEMENT AND CLASS COUNSEL FEES, OD FINALLY APPROVE THE SETTLEMENT PURSUANT TO BANKRUPTCY RULE 7023 AFTER THE FAIRNESS HEARING. AND CVN GRANT RELATED RELIEF
The Court has considered the joint motion 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

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"Movants") for the entry of an order: (a) approving the Settlement Agreement (the "Settlement Agreement")l among the Debtor-Defendant and the Class Representatives, pursuant to
Bankruptcy Rule 9019, (b) certifying a Class consisting of two subclasses for settlement
pu{poses, appointing Lankenau & Miller, LLP and The Gardner Firm, P.C. and Margolis

Edelstein as class counsel ("Class Counsel"), appointing Michelle Draz,Patty Pine and Yasmin Zialcita as the Class Representatives and preliminarily approving the Settlement Agreement
pursuant to Civil Rule 23, (c) approving the form and manner of notice to Class Members of the

conditional class certification and settlement, (d) scheduling a faimess hearing (the "Fairness

Hearing") to consider final approval of the Settlement Agreement and of Class Counsel's
attorneys fees pursuant to Civil Rule 23, and (e) after the Fairness Hearing, finally approving the Settlement Agreement and Class Counsel's attorneys fees pursuant to Civil Rule 23. The Court

finds that:

A.
served by First Class

On November 17,2009, the Notice of the Joint Motion ("Notice") was

Mail on the parties listed on the proof of service of the Notice filed herein.
The Notice given constituted the best notice practicable under the

B.

circumstances, is adequate and no other notice need be given.

C.

A full opporfunity has been offered to the parties in interest to participate

in the hearing on the Joint Motion.

D.

The Court finds for purposes of the Class settlement, that Class Counsel

has had extensive experience handling class action

WARN litigation and have been appointed

' 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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class counsel in over 40 WARN Act class actions and that the Class Representatives do not have

interests antagonistic to those of the Class.

E.

The Court finds for the purposes of the Class settlement, that: (i) the Class

consisting of two subclasses which consist of 120 and 579 members respectively, is so numerous
that joinder of all members is impracticable;

(ii) there are questions of law or fact common to the

Class; (iii) the claims of the Class Representatives are typical of the claims of the Class; (iv) Lankenau & Miller, LLP, The Gardner Firm, P.C. and Margolis Edelstein, have fairly and adequately protected the interests of the Class; (v) questions of law or fact common to the members of the Class predominate over any questions effecting only the individual members;
and

(vi) the class settlement is superior to other available methods of resolving the alleged

WARN Act claims and the other claims released in the Settlement Agreement. Therefore, the
Class should be certified for settlement purposes only, pursuant to Rule 23(a) and (bX3) of the Federal Rules of Civil Procedure and Rule 7023 of the Federal Rules of Bankruptcy Procedure,

consisting of certain of Debtor-Defendant's former employees, identified on Exhibits A and B to

the Settlement Agreement, and hereafter referred to as the "Class Members".

F,

Based on the range of possible outcomes and the cost, delay, and

uncertainty associated with further litigation, the Settlement Agreement is reasonable and costeffective, and preliminary approval of the Settlement Agreement is warranted.

G. H.

The Settlement Agreement should be preliminarily approved. Notice should be given to all the Class Members, affording them the

opportunity to object to the proposed Settlement Agreement and to opt-out of the Class.

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I.

Notice to all individuals identified in Exhibit A and Exhibit B to the

Settlement Agreement by first class mail, postage prepaid, at their last known address as

indicated in the Debtor-Defendant's records (and as updated by Class Counsel's searches for current addresses) is reasonable and the best notice practicable under the circumstances and such

mailing should be made by Class Counsel within ten (10) business days following the entry of
this Order.

J.

The contents of the notice of settlement (the "Class Notice") annexed to

the Joint Motion as Exhibit C meets the requirements of Fed. R. Civ. P.23(c)(2)(B). The Class

Notice states the nature of the action. and the issues and defenses. The Class Notice also states
that the Settlement Agreement, if approved, will be binding on all Class Members. The Class

Notice also summarizes the terms of the Settlement Agreement, the right of each Class Member
to opt-out of the class or object to the Settlement Agreement, the right of each Class Member to
appear by counsel at the Fairness Hearing, and the fact that more information is available from

Class Counsel upon request. Further, the Class Notice informs the Class Members that the Settlement Agreement provides for the release of their Claims (as that term is defined in the Settlement Agreement) and the payment of Class Counsel's attorneys' fees. See Fpn. R. Ctv. P. 23(h).

K.

A hearing on the final approval of the Settlement Agreement ('oFairness

Hearing") should be held so that Class Members will have sufficient time from the mailing of
the Class Notice to secure fuither information regarding the relief sought by the Joint Motion, to

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opt-out of the Class or to object to the proposed Settlement Agreement should they choose to do
so, and to engage counsel to appear at the Fairness Hearing.

L.
the Joint Motion.

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

THEREFORE, IT IS HEREBY ORDERED THAT:

1.

The Joint Motion is GRANTED.

2.
3.

The Settlement Agreement is hereby preliminarily approved.

A class comprised of the two subclasses made up of the persons

listed on Exhibits A 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 Asreement.

4.
Class Representatives.

Michelle Diaz,Patty Pine and Yasmin Zialcita are appointed

as

5.

Lankenau & Miller, LLP, The Gardner Firm, P.C. and Margolis

Edelstein are hereby appointed Class Counsel.

6.

The form of the Class Notice and the service of the Class Notice

by Class Counsel by first class mail, postage prepaid, to each individual identified in Exhibit A
and Exhibit B to the Settlement Agreement at his or her last known address contained in the

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Debtor-Defendant's records (as updated by Class Counsel's searches for current addresses)
hereby approved.

is

7.

The Class Notice shall be mailed by first class mail by Class

Counsel to the individuals identified in Exhibit A and Exhibit B to the Settlement Agreement

within ten (10) business days following the entry of this Order.

8.

Objections or other responses to the final approval of the

Settlement Agreement are to be filed with the Clerk of the Court and mailed to the entities listed

in the Class Notice, via certified mail, return receipt requested so that they are received by all
entities no later than ten (10) days prior to the Fairness Hearing on final consideration and approval of the Settlement Agreement.

9.

Should a Class Member choose not to be bound by the Settlement,

their completed opt-out form, which is part of the Class Notice, must be mailed to Class Counsel
as listed and described in the Class Notice, via certified mail, retum receipt requested so that they

are received by Class Counsel no later than fifteen (15) days prior to the Fairness Hearing on

final consideration and approval of the Settlement Agreement.

10.
serve and Class.

Within seven (7) days of the Faimess Hearing, Class Counsel shall listing the names of any persons who have opted-out of the

file

a sworn statement

11.

The Court shall conduct a Fairness Hearing

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12.

Notwithstanding any order of discharge under Chapter 7 of the

Bankruptcy Code, any order of confirmation under Chapter 11 of the Bankruptcy Code, or any
order of dismissal under Bankruptcy Code section 349, this Court retains jurisdiction to construe,

interpret, enforce, and implement the Settlement Agreement and this Order.

Dated: December $,ZOOS Wilmington, Delaware

THE HO ORAB KRUPTCY ruDGE

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