Pinsker v. Borders, Inc. (In re BGI, Inc.)

465 B.R. 365
CourtUnited States Bankruptcy Court, S.D. New York
DecidedFebruary 17, 2012
DocketBankruptcy No. 11-10614 (MG); Adversary No. 11-02586 (MG)
StatusPublished
Cited by4 cases

This text of 465 B.R. 365 (Pinsker v. Borders, Inc. (In re BGI, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pinsker v. Borders, Inc. (In re BGI, Inc.), 465 B.R. 365 (N.Y. 2012).

Opinion

MEMORANDUM OPINION APPROVING WARN ACT CLASS ACTION SETTLEMENT ON A FINAL BASIS

MARTIN GLENN, Bankruptcy Judge.

The pending motion seeks final approval of a settlement of a WARN Act class action adversary proceeding (the “Motion”). Jared Pinsker (the “Class Representative” or “Plaintiff’) initiated a putative class action adversary proceeding on behalf of himself and other similarly situated former employees (collectively, the “Class” or “Class Members”) of Borders, [373]*373Inc. (the “Debtor”). (ECF Doc. # 2203.)1 The Class Representative and the Debtors in these chapter 11 cases (collectively, the “Parties”) jointly seek final approval of the Settlement and Release Agreement between the Class Members and the Debtors (the “Settlement Agreement” or the “Settlement”),2 including an award of attorneys’ fees for Class Counsel (defined below). Stuart J. Miller, counsel for the Class Members, filed a declaration in further support of the Motion and Settlement Agreement, including final approval of attorneys’ fees (the “Miller Declaration”). (ECF Doc. # 2528.)

On December 20, 2011, the Court held a hearing (the “Preliminary Hearing”) and entered an order (i) preliminarily approving the Settlement, (ii) approving the form and manner of notice; (iii) scheduling a fairness hearing to consider final approval of the Settlement (the “Fairness Hearing”); and (iv) granting related relief (collectively, the “Preliminary Order”). (ECF Doc. # 2372.) The Court set February 16, 2012 as the date for the Fairness Hearing and approved the form of notice that was mailed to members of the Class on December 23, 2011. The opt-out and objection deadline was set for February 6, 2012, and only three opt-outs were received. (Miller Deck ¶ 11.) No objections were filed to the Motion requesting approval of the Settlement Agreement on a final basis.

For the reasons explained below, the Settlement is approved on a final basis, including the award of attorneys’ fees to Class Counsel.

BACKGROUND

On February 16, 2011 (the “Petition Date”), Borders Group, Inc. and certain of its affiliates (the “Debtors”) commenced their chapter 11 bankruptcy cases. (ECF Doc. # 1.) A class action complaint in this adversary proceeding was filed on September 2, 2011 (the “Complaint”). (ECF Doc. 1697.) The Complaint asserted claims under the federal Worker Adjustment and Retraining Notification Act (the “Federal WARN Act”) and the New York State Worker Adjustment and Retraining Notification Act (the “NY WARN Act,” and together with the Federal WARN Act, the ‘WARN Act”) by ordering a plant closing and/or mass layoffs at its Michigan facility on or about July 22, 2011 through August 23, 2011 without providing sixty-days advance notice. The Class Representative also asserted that the Class Members have an administrative priority claim pursuant to section 503 of the Bankruptcy Code. (Compl. ¶ 34.) In late September 2011, the Parties entered into good faith, arm’s length negotiations regarding a resolution of this action.

The federal WARN Act is codified at 29 U.S.C. §§ 2101-2109. In general terms, it requires employers with more than 100 employees to provide sixty calendar days of advance notice of “plant closing” or “mass layoffs” (both terms are defined in section 2101(a)). There are three exceptions to the full sixty-day requirement; however, employers must still provide notice as soon as practicable. The exceptions are: (1) when an employer is actively seeking capital or business and reasonably believes that advance notice would preclude its ability to garner capital or business (known as the “faltering company” exception); (2) unforeseeable business circumstances; and (3) natural disasters. See 29 U.S.C. § 2102(b). When section [374]*3742102 is violated, the employer is liable for damages, including employee back pay and benefits under an employee benefit plan. See id. § 2104.

The Parties contend that there exist significant, complex legal and factual issues regarding the application of the WARN Act to the Debtors and, therefore, to the viability of this action. To avoid extensive and protracted litigation, the Parties have agreed to settle all claims relating to or arising out of this litigation.

The Settlement Agreement provides for certification of a class comprised of all persons who

(i)worked at, or reported to, the Debtors’ Michigan Facility; (ii) suffered an “employment loss,” as that term is defined in 29 U.S.C. § 2101(a)(6) and 20 C.F.R. § 639.3(b)-(c), on, or within thirty days of July 22, 2011 as part of a “plant closing” or “mass layoff,” as those terms are defined in 29 U.S.C. § 2101(a)(2)-(3) and 20 C.F.R. § 639.3(b)-(c), or as the reasonably foreseeable consequence of a “plant closing” or “mass layoff’ occurring on or about July 22, 2011; (iii) meet the definition of “affected employee,” as set forth in 29 U.S.C. § 2101(a)(5) and 20 C.F.R. § 639.3(e); and (iv) do not file a timely request to opt-out of the Class....

(Settlement ¶ 3.)

Additionally, pursuant to the Settlement, the Debtors shall pay $240,000 as follows: (1) $3,000 to the Plaintiff as the class representative; (2) $158,000 to be divided equally among the Class Members;3 and (3) $79,000 in attorneys’ fees to counsel for the Class. (Settlement ¶4, 6-7; Mot. ¶ 26.)

The Settlement Agreement further provides that each Class Member that has not opted-out shall release any and all claims he or she may have against the Debtors. (Settlement ¶ 11.) Moreover, if 5% or more members of the Class decide to opt-out, the Debtors or the Liquidating Trust, as applicable, have the right to declare the Settlement null and void. (Id. ¶ 12.)

DISCUSSION

The Court is familiar with the standards applicable to approval of a settlement in a WARN Act class action, and substantially relies on its prior decision approving a settlement in Wenzel v. Partsearch Techs., Inc. (In re Partsearch Techs., Inc.), 453 B.R. 84 (Bankr.S.D.N.Y.2011).

A. Class Certification and Notice

1. Rule 23(a) of the Federal Rules of Civil Procedure

The Court preliminarily certified the Class for settlement purposes and approved the notice that was sent to all Class Members, advising them of their ability to opt-out of the Settlement (the “Notice”). Based on the following, the Court confirms its prior conclusions.

Class actions in bankruptcy court are governed by Rule 23

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Cite This Page — Counsel Stack

Bluebook (online)
465 B.R. 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pinsker-v-borders-inc-in-re-bgi-inc-nysb-2012.