Opinion
Case No. 399-02649, Jointly Administered, Adv. Proc. No. 301-0791A (Information Technology)
January 13, 2004
Wally W. Dietz, Esq., Bass, Berry Sims PLC, Nashville, TN, for Debtors and Debtors in Possession
Paul G. Jennings, Esq., Bass, Berry Sims PLC, Nashville, TN, for Debtors and Debtors in Possession
Beth A. Dunning, Esq., Bass, Berry Sims PLC, Nashville, TN, for Debtors and Debtors in Possession
Charles F. Smith, Esq., Skadden, Arps, Slate, Meagher Flom (Illinois), Chicago, IL, for Debtors and Debtors in Possession
Van C. Durrer, II, Esq., Skadden, Arps, Slate, Meagher Flom (Illinois), Chicago, IL, for Debtors and Debtors in Possession
AGREED ORDER OF SETTLEMENT AND DISMISSAL
Upon the agreement of the parties that this adversary proceeding has been resolved and should be dismissed, the Court FINDS, ADJUDGES AND DECREES:
A. Prior to March 14, 2001, the Plaintiffs, Service Merchandise Company, Inc. ("Service Merchandise") and 31 of its affiliates (the "Affiliate Debtors"; collectively, with Service Merchandise, the "Plaintiffs"), initiated the above-captioned adversary proceeding by filing their Complaint to Avoid Preferential Transfers and to Recover Amount of Such Transfers (the "Complaint") against the defendant, JDR Group, Inc. d/b/a Huntington Group (the "Defendant").
B. The Debtors and the Defendant have reached a settlement and agreed resolution (the "Settlement") of the subject matter of the Complaint and any and all factual and legal issues raised therein.
C. Pursuant to the Settlement, the Debtors have agreed, as evidenced by the signature of Debtors' counsel below, and are hereby deemed to voluntarily waive any and all claims and/or causes of action against the Defendant that were or could have been brought in these bankruptcy cases.
D. Pursuant to the Settlement and in partial consideration therefor, the Defendant has agreed, as evidenced by the signature of the Defendant below, and is hereby deemed to voluntarily waive any and all claims and/or causes of action that were or could have been brought against the Debtors in these bankruptcy cases.
E. The Defendant has acknowledged, as evidenced by the signatures below, and is hereby found to have waived any such claim having adequate opportunity to consult with counsel concerning the Defendant's legal rights and the effect of this waiver.
F. In consideration of the Defendant's knowing and voluntary waiver of any and all claims against the Debtors in these bankruptcy cases, including claims filed in this case, in partial consideration for the Agreed Order of Dismissal, the Debtors have agreed to waive any and all claims that could have been brought against the Defendant in these bankruptcy cases and to dismiss the Complaint with prejudice, each party to bear its own costs.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The Defendant shall not have and is forever barred from asserting any claim and/or cause of action that was or could have been brought against the Debtors in these bankruptcy cases.
2. The Plaintiff shall not have any cause of action against the Defendant that was or could have been brought in these cases.
3. The Complaint shall be and hereby is dismissed, with prejudice, each party bearing its own costs.
4. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.