IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELEWARE _________________________________________ x In re: ) ) ) MERVYNS HOLDINGS, LLC, et al.

) Debtors. ) _________________________________________ x MICHELLE DIAZ, PATTY PINE, and ) YASMIN ZIALCITA on behalf of themselves ) and the other similarly situated former ) employees of Defendant, ) ) Plaintiffs, ) v. ) ) MERVYNS LLC., ) ) Defendant. ) ________________________________________ x Chapter 11 Case No. 08-11586 (KG) Jointly Administered

Adversary Proceeding No.

CLASS ACTION ADVERSARY PROCEEDING COMPLAINT Michelle Diaz, Patty Pine, and Yasmin Zialcita (Plaintiffs) on behalf of a class of those similarly situated, by way of Complaint against Mervyns LLC (Defendant) by and through their counsel allege as follows: NATURE OF THE ACTION 1. This is a class action for the recovery by the Plaintiffs and other

similarly situated employees of the Defendant of damages in the amount of 60 days pay and ERISA benefits by reason of Defendants violation of the Plaintiffs rights under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. 2101 et seq. (the WARN Act). The Plaintiffs were employees of the Debtor and was terminated as part of, or as a result of, mass layoff ordered by the Defendant. As such, the Defendant violated the WARN Act by failing to give the Plaintiffs and other similarly situated

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employees of the Defendant at least 60 days advance notice of termination, as required by the WARN Act. As a consequence, the Plaintiffs and other similarly situated

employees of the Defendant are entitled under the WARN Act to recover from the Defendant their wages and ERISA benefits for 60 days, none of which has been paid. Since the violation(s) occurred post-petition, each of the Plaintiffs claims herein is entitled to the status of an administrative expense claim in the bankruptcy cases. JURISDICTION AND VENUE 2. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C.

157, 1331, 1334 and 1367 and 29 U.S.C 2104 (a)(5). 3. (O). This is a core proceeding pursuant to 28 U.S.C. 157 (b)(2)(A),(B) and

THE PARTIES 4. Upon information and belief, at all relevant times, Defendant Mervyns

LLC. (Mervyns) was a California corporation which maintained a facility at 22301 Foothill Boulevard Hayward, CA 94541 (the Facility). 5. 6. On or about July 2008 Mervyns filed a voluntary petition with this court. On or about October 2008, Plaintiffs and approximately 520 other

employees of Defendant who worked at the Facility were also terminated. 7. On information and belief, Defendant, owned and operated a facility

located at 22301 Foothill Boulevard Hayward, CA 94541 (the Facility). 8. The Plaintiffs bring this action on her own behalf and, pursuant to the

Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure and the WARN Act, 29 U.S.C. 2104(a)(5), on behalf of all other employees of the Defendant who also worked at the Facility, and who were terminated on or about October 2008 and all employees who were terminated as the reasonably foreseeable result of the October 2008 mass lay off or plant closing should be included in the class. (collectively, The Class).

THE CLAIM FOR RELIEF 9. At all relevant times, the Defendant, employed 100 or more employees,

exclusive of part-time employees, or employed 100 or more employees who in the aggregate worked at least 4,000 hours per week exclusive of hours of overtime within the United States. 10. On or about October 2008, the Defendant, ordered a mass layoff and/or

plant closing, as those terms are defined by 29 U.S.C. 2101(a)(2) and (3), by ordering the termination of the employment of the Plaintiffs and the other Class members. 11. The mass layoff at the Facility resulted in employment losses, as that

term is defined by 29 U.S.C. 2101(a)(2) and (3), for at least fifty (50) of Defendants employees as well as at least 33% of Defendants workforce at the Facility, excluding part-time employees, as that term is defined by 29 U.S.C. 2101(a)(8). 12. The Plaintiffs and the other Class members constitute a class within the

meaning of Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure. 13. Each of the Class members is similarly situated to the Plaintiffs in respect

to his or her rights under the WARN Act. 14. The Plaintiffs and the other Class members were discharged on or about

October 2008 without cause on their part. 15. Each of the Plaintiffs and each of the other Class members is an affected

employee within the meaning of 29 U.S.C. 2101(a)(5). 16. The Defendant was required by the WARN Act to give Plaintiffs and the

other Class members at least 60 days advance written notice of his or her termination. 17. Prior to their termination, Plaintiffs and the other Class members did not

receive written notice that complied with the requirements of the WARN Act. 18. The Defendant failed to give Plaintiffs and the other Class members

written notice that complied with the requirements of the WARN Act.

19.

The Plaintiffs and each of the other Class members is an aggrieved

employee as that term is defined in 29 U.S.C. 2104 (a)(7). 20. The Defendant failed to pay the Plaintiffs and the other Class members

their respective wages, salary, commissions, bonuses, accrued holiday pay and accrued vacation for 60 working days following their respective terminations and failed to make the pension and 401(k) contributions, provide other employee benefits under ERISA and pay their medical expenses for 60 calendar days from and after the dates of their respective terminations. 21. Class. 22. The common questions of law and fact arise from and concern the Common questions of law and fact are applicable to all members of the

following facts and actions, among others, that the Defendant committed or failed to commit as to all members of the Class: all Class members enjoyed the protection of the WARN Act; all Class members were employees of the Defendant who worked at the facility; the Defendant terminated the employment of all the members of the Class without cause on their part; the Defendant terminated the employment of the members of the Class without giving them at least 60 days prior written notice as required by the WARN Act; and the Defendant failed to pay the Class members wages and to provide other employee benefits for a 60-day period following their respective terminations. 23. The questions of law and fact common to the members of the Class, as

above noted, predominate over any questions affecting only individual members, and thus, this class claim is superior to other available methods for the fair and efficient adjudication of this controversy. 24. The Plaintiffs claim is typical of the claims of other members of the Class

in that for each of the several acts described above, Plaintiffs are or were injured parties. 25. of the Class. The Plaintiffs will fairly and adequately protect and represent the interests

26.

The Plaintiffs have the time and resources to prosecute this action and

have retained counsel who have had extensive experience in matters involving the WARN Act, employee rights, and federal court litigation. 27. The Class is so numerous as to render joinder of all members

impracticable in that there are some 150 members of the class. 28. certification. 29. The Class also meets the requirements of Fed. R. Civ. P. 23(b)(1)(B) The Class meets the requirements of Fed. R. Civ. P. 23(a) for class

because adjudications with respect to individual members of the Class would, as a practical matter, be dispositive of the interests of the other members of the Class not parties to the adjudications or substantially impair or impede their ability to protect their interests. 30. In addition, the Class meets the requirements of Fed. R. Civ. P. 23(b)(3)

because the questions of law or fact common to the members of the Class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 31. Class certification is also proper pursuant to the WARN Act, 29 U.S.C.

2104 (a)(5), which provides that a person seeking to enforce WARN Act liability may sue for other persons similarly situated in any district court of the United States in which the violation is alleged to have occurred, or in which the employer transacts business. 32. The violation alleged herein occurred in this District and the Defendant

transacts business in this district. 33. As a result of the Defendants violation of the WARN Act, Plaintiffs and

each of the other Class members have been damaged in amounts equal to the sum of: (a) their respective lost wages, salaries, commissions, bonuses, accrued holiday pay and accrued vacation pay, for 60 working days; (b) pension contributions and 401 (k) contributions, health and medical insurance and other fringe benefits under the Employee

Retirement Income Security Act (ERISA) that they would have received or had the benefit of receiving, for a period of 60 days after the dates of their respective terminations; and (c) medical expenses incurred during such period that would have been covered and paid under the then applicable employee benefit plans had that coverage continued for such period. 34. Pursuant to 11 U.S.C. 503(b)(1)(A), the full amount of the WARN Act claim of each Plaintiff against the Defendants is entitled to administrative priority status. 35. The relief sought in this proceeding is equitable in nature.

WHEREFORE, Plaintiffs demands judgment against the Defendant as follows: A. An allowed administrative priority claim pursuant to 11 U.S.C.

503 in favor of each the Plaintiffs equal to the sum of: (a) unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and other ERISA benefits, for 60 days, that would have been covered and paid under the then applicable employee benefit plans had that coverage continued for that period, all determined in accordance with the WARN Act, 29 U.S.C. 2104(a)(1)(A); B. Certification that the Plaintiffs and the other Class members

constitute a single class; C. D. Appointment of the undersigned attorneys as Class Counsel; Appointment of Plaintiffs as the Class Representatives and

payment of reasonable compensation to them for their services as such, E. An allowed administrative priority claim under 11 U.S.C. 503 for

the reasonable attorneys fees and the costs and disbursements that Plaintiffs incur in prosecuting this action, as authorized by the WARN Act, 29 U.S.C. 2104(a)(6); and

F. proper.

Such other and further relief as this Court may deem just and

Dated: November 20, 2008

Respectfully submitted, MARGOLIS EDELSTEIN

James E. Huggett (#3956) 750 Shipyard Drive, Suite 102 Wilmington, DE 19801 P: (302) 888-1112 F: (302) 888-1119 jhuggett@margolisedelstein.com LANKENAU & MILLER, LLP Stuart J. Miller (SJM 4276) 132 Nassau Street, Suite 423 New York, NY 10038 P: (212) 581-5005 F: (212) 581-2122 THE GARDNER FIRM Mary E. Olsen M. Vance McCrary J. Cecil Gardner 1119 Government Street Post Office Drawer 3103 Mobile, AL 36652 P: (251) 433-8100 F: (251) 433-8181 Cooperating Counsel for THE NLG MAURICE AND JANE SUGAR LAW CENTER FOR ECONOMIC AND SOCIAL JUSTICE, a non-profit law firm 733 St. Antoine, 3rd Floor Detroit, Michigan 48226 P: (313) 962-6540 Attorneys for Plaintiffs