PERRIGO INSTITUTIONAL INVESTOR GROUP, Individually v. Joseph C. Papa

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 24-2861
________________
PERRIGO INSTITUTIONAL INVESTOR GROUP,
Individually and on behalf of All Others Similarly Situated;
SCULPTOR MASTER FUND LTD; SCULPTOR
ENHANCED MASTER FUND LTD
v.
JOSEPH C. PAPA; L PERRIGO COMPANY PLC; JUDY
BROWN; LAURIE BRLAS; GARY M. COHEN; MARC
COUCKE; JACQUALYN A. FOUSE; ELLEN R.
HOFFING; MICHAEL R. JANDERNOA; GERALD K.
KUNKLE, JR.; HERMAN MORRIS, JR.; DONAL
O’CONNOR;
Sculptor Enhanced Master Fund Ltd and Sculptor Master
Fund Ltd,
Appellants
________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:16-cv-02805)
District Judge: Honorable Renée M. Bumb
________________

-- 1 of 26 --

2
Submitted under Third Circuit L.A.R. 34.1(a)
July 8, 2025
Before: KRAUSE, MATEY, and PHIPPS, Circuit Judges
(Filed: August 12, 2025)
Luke J. O’Brien
Mariellen Dugan
Calcagni & Kanefsky LLP
1085 Raymond Boulevard
One Newark Center, 18th Floor
Newark, NJ 07102
Jesse Bernstein
Jonathan E. Pickhardt
Owen F. Roberts
Quinn Emanuel Urquhart & Sullivan, LLP
295 5th Avenue, 9th Floor
New York, NY 10016
Counsel for Appellants
Samuel Groner
Jason S. Kanterman
Fried Frank Harris Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004
James E. Anklam
Katherine L. St. Romain

-- 2 of 26 --

3
Fried Frank Harris Shriver & Jacobson LLP
801 17th Street NW, Suite 600
Washington, DC 20006
Counsel for Appellee Perrigo Company plc
Reed Brodsky
David F. Crowley-Buck
Gibson Dunn & Crutcher LLP
200 Park Avenue, 47th Floor
New York, NY 10166
Counsel for Appellee Joseph C. Papa
________________
OPINION OF THE COURT
________________
KRAUSE, Circuit Judge.
Like much of the law, the Federal Rules of Civil
Procedure are the product of compromise, seeking to balance
several laudatory—and sometimes conflicting—interests,
including protection of parties’ rights and the efficient
administration of justice. In striking this balance, the Rules
fault litigants who fail to follow their directives. So when
parties deviate from them, even by mistake, they usually have
to live with the consequences.
Appellants Sculptor Master Fund, Ltd. and Sculptor
Enhanced Master Fund, Ltd. (together, Sculptor) seek to avoid
those consequences, but they cannot. This case is born of
mistakes. After shareholders sued Appellee Perrigo Company

-- 3 of 26 --

4
plc for alleged securities laws violations, the District Court
certified a class that included Sculptor and specified how class
members could request exclusion. Despite its intention to do
so, counsel for Sculptor never opted out. But no one spotted
that failure at the time, and the parties litigated Sculptor’s
separate individual action for years until Perrigo realized
Sculptor never complied with the District Court’s instructions
for requesting exclusion. Realizing its error, Sculptor now
belatedly seeks to be excluded from the class, but we agree
with the District Court that, in light of its mistakes, Sculptor’s
arguments for exclusion fail. We therefore will affirm.
I. Background
Perrigo is the world’s largest manufacturer of over-the-
counter healthcare products. In April 2015, Mylan N.V.—a
then-competing drug manufacturer—announced an unsolicited
tender offer to purchase Perrigo for $205 per share—
approximately a 25% premium over the price at which
Perrigo’s shares traded at that time. In response, Perrigo’s
board demurred and encouraged shareholders to reject the
offer. Thereafter, Mylan twice increased its offer to
approximately $227 per share and $246 per share. Each time,
Perrigo’s board rejected the offer and advised shareholders to
do the same. Mylan initiated its formal tender offer in
September 2015, which Perrigo again urged investors to reject.
Perrigo successfully defeated Mylan’s tender offer,1 but
at a cost. During the course of fending off the offer, Perrigo
1 Perrigo shareholders tendered less than 50% of outstanding
shares by the time the offer closed, falling short of the required
threshold and defeating Mylan’s offer.

-- 4 of 26 --

5
and its officers made allegedly material misrepresentations and
omissions about Perrigo’s business performance. After the
close of the tender offer, Perrigo announced worse-than-
expected earnings, previously undisclosed asset impairment
charges, and the need to restate every financial statement it
issued between April 2015 and May 2017 due to GAAP errors
amounting to over $1 billion in misstatements. As a result,
Perrigo’s share value declined precipitously, dropping more
than 62%.
Unsurprisingly, investors sued. In May 2016, a group
of institutional investors filed this class action against Perrigo
and several of its officers alleging, among other things,
violations of Section 10(b) of the Securities Exchange Act of
1934 and SEC Rule 10b-5.2 In November 2018, the lead class
plaintiff moved to certify the class under Federal Rule of Civil
Procedure 23(b)(3). Sculptor, as one of the largest holders of
Perrigo stock during the class period (holding about 2.6
million, or 5%, of outstanding Perrigo shares), was a putative
class member, but, like a number of other investors, decided to
pursue a separate action rather than remain in the class. So in
February 2019—while class certification remained pending—
Sculptor initiated its own lawsuit against Perrigo, alleging
substantially the same federal securities laws violations as the
class.
The District Court certified the class in November 2019.
Later, in July 2020, the Court approved a class action notice
pursuant to Rule 23(c)(2)(B) to be sent to class members
informing them about the pendency of the Roofer’s class action
2 This action became known as the “Roofer’s” class action, so
called due to the named class plaintiff, Roofer’s Pension Fund.

-- 5 of 26 --

6
and their right to opt out of the class. In particular, the notice
included the following instructions for requesting exclusion:
HOW TO BE EXCLUDED FROM THE
CLASSES: If you fall within one or more of the
Class definitions and are not otherwise excluded,
you will automatically be considered a member
of such Class unless you request exclusion. Any
member of a Class may request not to be bound
by these proceedings. To exclude yourself from
the Class(es), you must send a signed letter by
mail stating that you “request exclusion” from
the Class(es) in “Roofer’s Pension Fund v. Papa,
et al., No. 16-CV-2805-MCA-LDW.” Be sure to
include: (i) your name, address, and telephone
number, (ii) the transactional details of the
Perrigo common stock you purchased, acquired,
sold and/or held during the Class Period,
including purchase/sale dates, amount of shares
purchased or sold, the price of such purchases or
sales, and the number of shares held as of market
close on November 12, 2015 at least through
8:00 a.m. eastern time on November 13, 2015;
and (iii) the signature of the person or entity
requesting exclusion or an authorized
representative. Your request for exclusion will
not be effective unless it contains all of this
information. You must then mail your exclusion
request, postmarked no later than [90 days after
the Postcard is mailed], 2020, to:
Perrigo Securities Litigation
[Notice admin]

-- 6 of 26 --

7
App. 681–82 (emphasis in original). Class members had until
December 3, 2020 to opt out. Sculptor admits it knew about
the notice and instructions for requesting exclusion.
The opt-out deadline came and went, and Sculptor never
submitted an exclusion request.3 But neither Sculptor nor
Perrigo realized this mistake at the time. Instead, the missteps
picked up pace as both parties carried on litigating Sculptor’s
individual action. Even when the list of opt-outs was published
in early 2021 without Sculptor’s name on it, neither Sculptor
nor Perrigo took note. Nor did they notice Sculptor’s oversight
throughout 2021 when other investors who did notice their
names missing requested and were granted exclusion by the
District Court after the opt-out deadline.
Over the next three-and-a-half years, Sculptor
proceeded as if it had opted out of the Roofer’s class action,
and Perrigo, assuming that was the case, undertook the
following actions:
• Moving to dismiss Sculptor’s individual action as
untimely after the conclusion of the opt-out period;
3 Sculptor’s former counsel later represented to the District
Court that she was “unable to definitely determine whether the
[exclusion] letter was never mailed . . . or whether it was
mailed and either lost en route to the Claims Administrator or
received by the Claims Administrator but not recorded in the
records of the parties that had formally opted out of the Class
Action.” App. 1145–46. The District Court found that the
record “suggests Sculptor’s former counsel did not prepare the
opt-out request.” Roofer’s Pension Fund v. Papa, No. 16-
2805, 2024 WL 4205638, at *15 (D.N.J. Sep. 12, 2024).

-- 7 of 26 --

8
• Providing the District Court with a status update of opt-
out actions, one of which was Sculptor’s;
• Sending the District Court a joint letter with opt-out
plaintiffs (including Sculptor) regarding a discovery
schedule for opt-out actions;
• Deposing Sculptor’s Rule 30(b)(6) designee;
• Serving Sculptor with expert reports; and
• Identifying Sculptor as one of the opt-out actions from
the Roofer’s class action in its annual 10-K reports filed
with the SEC from 2020 to 2024.
At no point in this folly did Sculptor or Perrigo ever confirm
whether Sculptor had in fact opted out of the class.
In April 2024, class counsel and Perrigo sought
approval of a proposed settlement of the class action. The
District Court preliminarily approved the settlement, which
included a provision requiring all class members pursuing
individual actions to dismiss those actions within thirty days of
the preliminary approval or risk forfeiting participation in the
settlement. At that point, Sculptor’s failure to opt out came to
light. Per Sculptor, “during a phone call, Perrigo’s counsel
contended for the first time that Sculptor was precluded from
pursuing its individual litigation because it had not opted out
of the Class Action years earlier.” Opening Br. 17. With this
revelation, Sculptor’s former counsel investigated and
confirmed that Sculptor never requested exclusion from the
class. According to counsel, the failure was inadvertent
because “she instructed an associate at her firm to submit an
opt-out request to the Court-approved Claims Administrator.”

-- 8 of 26 --

9
Roofer’s Pension Fund v. Papa, No. 16-2805, 2024 WL
4205638, at *5 (D.N.J. Sep. 12, 2024).
So it came to pass, nearly three-and-a-half years after
the deadline, that Sculptor moved belatedly to opt out of the
class. It first argued that its maintenance of an individual
action against Perrigo throughout the pendency of the class
action, along with other related conduct, provided a
“reasonable indication” of its intent to opt out and, thus, it
should be deemed to have timely requested exclusion.
Alternatively, Sculptor contended, it should have been
permitted to opt out after the deadline because it had
demonstrated “excusable neglect.” Sculptor also challenged
the adequacy of the class action notice.
In a commendably thorough opinion, the District Court
considered Sculptor’s arguments before rejecting each one. It
reasoned that (1) a class member’s “reasonable indication” of
an intent to opt out cannot satisfy its obligation to follow the
measures established by a district court to request exclusion;
(2) Sculptor had not demonstrated that its neglect should be
excused; and (3) the class notice satisfied due process. This
timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 15 U.S.C.
§ 78aa(a) and 28 U.S.C. § 1331 and § 1367(a). We have
jurisdiction under 28 U.S.C. § 1291. We review questions of
law—such as whether the District Court applied the proper
legal standard—de novo. Huber v. Simon’s Agency, Inc., 84
F.4th 132, 144 (3d Cir. 2023). On the other hand, we review a
District Court’s “excusable neglect” determination for abuse of

-- 9 of 26 --

10
discretion. In re Orthopedic Bone Screw Prods. Liab. Litig.,
246 F.3d 315, 320 (3d Cir. 2001).
While we have not previously decided which standard
of review to employ when reviewing whether a class action
notice comports with due process, whether a notice satisfies the
minimum requirements of the Due Process Clause of the Fifth
Amendment is a pure question of law. Cf. In re Phila.
Newspapers, LLC, 690 F.3d 161, 171 (3d Cir. 2012) (“We
review due process claims de novo.”). Thus, we exercise
plenary review of that determination. See Low v. Trump Univ.,
LLC, 881 F.3d 1111, 1116 (9th Cir. 2018); DeJulius v. New
England Health Care Emps. Pension Fund, 429 F.3d 935, 942
(10th Cir. 2005).
III. Discussion
Sculptor advances three arguments on appeal: (1) that a
class member may opt out of a class action by providing a
“reasonable indication” of its intent to opt out, and that
Sculptor did so here; (2) that, if the “reasonable indication”
standard does not apply, Sculptor has demonstrated “excusable
neglect” to permit its untimely request for exclusion; and (3)
that the class action notice does not satisfy due process. We
disagree on all fronts.
A. The “Reasonable Indication” Standard Finds No
Support in Rule 23
Federal Rule of Civil Procedure 23 governs the
administration of class actions in federal courts. While class
actions come in various forms, see Fed. R. Civ. P. 23(b), this
one, like most, involves a class seeking damages under Rule

-- 10 of 26 --

11
23(b)(3). In such cases, Rule 23 imposes certain requirements
on the district court and class plaintiffs in order to certify and
settle a class action. Among other things, the district court
“must direct to class members the best notice that is practicable
under the circumstances” for any class certified under Rule
23(b)(3). Id. (c)(2)(B). This notice “must clearly and
concisely state in plain, easily understood language,” id.,
various characteristics of the class action, including, crucially,
“that the court will exclude from the class any member who
requests exclusion” and “the time and manner for requesting
exclusion.” Id. (c)(2)(B)(v)–(vi).
A Rule 23(b)(3) class member’s right to request
exclusion—commonly known as “opting out”—reflects “our
deep-rooted historic tradition that everyone should have his
own day in court.” Ortiz v. Fibreboard Corp., 527 U.S. 815,
846 (1999) (quoting Martin v. Wilks, 490 U.S. 755, 762
(1989)). Indeed, the Constitution demands that “every absent
class member must ‘be provided with an opportunity to remove
himself from’ a class action seeking predominantly damages.”
N. Sound Cap. LLC v. Merck & Co., 938 F.3d 482, 492 (3d Cir.
2019) (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797,
812 (1985)).
Despite Rule 23’s careful protections for a class
member’s right to opt out, however, it “does not specify any
particular means by which the absentee is to request
exclusion.” 7AA Wright & Miller’s Federal Practice &
Procedure § 1787 (3d ed. May 2025 update). Instead, district
courts enjoy “broad authority to exercise control over a class
action,” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,
171 (1989) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 100
(1981)), and “have discretion in selecting a method” for class

-- 11 of 26 --

12
members to opt out, 3 Herbert B. Newberg & William B.
Rubenstein, Newberg and Rubenstein on Class Actions § 9:46
(6th ed. June 2025 update).
Sculptor does not dispute that district courts have
substantial discretion to manage class actions and establish the
procedures for absent class members to request exclusion.
Instead, it contends that, irrespective of which measures a
district court directs class members to use, a class member
must be excluded from the class whenever it has “provided a
‘reasonable indication’ of its intention to opt out of a class
action.” Opening Br. 24. In support of this position, Sculptor
urges us to follow the Second and Tenth Circuits which have
suggested that “[a] reasonable indication of a desire to opt out”
is sufficient for an absent class member to exclude themselves
from the class. In re Four Seasons Sec. L. Litig., 493 F.2d
1288, 1291 (10th Cir. 1974); accord Plummer v. Chem. Bank,
668 F.2d 654, 657 n.2 (2d Cir. 1982) (“Any reasonable
indication of a desire to opt out should suffice.”). We disagree
and decline to adopt this “reasonable indication” standard.
Our inquiry begins with Rule 23’s plain text.4 See
Elliott v. Archdiocese of N.Y., 682 F.3d 213, 225 (3d Cir.
2012). As noted above, it provides only that a district court
shall direct that notice be sent to class members informing
them “that the court will exclude from the class any member
4 To the extent Sculptor argues that the Constitution compels
adoption of the “reasonable indication” standard, we disagree,
since due process requires only that absent class plaintiffs be
“provided with a request for exclusion that can be returned
within a reasonable time to the court.” Phillips Petroleum Co.
v. Shutts, 472 U.S. 797, 814 (1985).

-- 12 of 26 --

13
who requests exclusion” and “the time and manner for
requesting exclusion.” Fed. R. Civ. P. 23(c)(2)(B)(v)–(vi).
Rule 23’s opt-out feature, then, turns on a class member’s
“affirmative[] request to be excluded,” In re Citizens Bank,
N.A., 15 F.4th 607, 612 (3d Cir. 2021), in other words, whether
a class member has in fact requested exclusion. But Rule 23
does not fix how a class member must request exclusion—that
decision is left to the district court to fill in, as it may set “the
time and manner for requesting exclusion.” Fed. R. Civ. P.
23(c)(2)(B)(vi). So Rule 23 authorizes district courts to decide
when and how class members may opt out, and nothing in it
requires district courts to accept any particular form of a
request for exclusion, whether through a “reasonable
indication of a desire to opt out” or otherwise.5 In re Four
Seasons, 493 F.2d at 1291.
A look at Rule 23 as a whole confirms this
interpretation. Rule 23(e)(4), which applies to class
settlements, provides that a district court “may refuse to
approve a settlement unless it affords a new opportunity to
request exclusion to individual class members who had an
earlier opportunity to request exclusion but did not do so.”
Sculptor’s argument, however, renders this provision largely
superfluous because if, as the “reasonable indication” standard
demands, opting out is always on offer, a settlement would
never need to “afford[] a new opportunity to request
5 To be sure, while district courts enjoy broad discretion to
manage class actions and establish the means for absent class
members to request exclusion, “[t]he opt-out procedure should
be simple and should afford class members a reasonable time
in which to exercise their option.” Manual for Complex
Litigation (Fourth) § 21.321 (2004).

-- 13 of 26 --

14
exclusion”—class members could always indicate their intent
to opt out at any point. Fed. R. Civ. P. 23(e)(4). But just as
with statutes, we must “give effect, if possible, to every clause
and word” of a Federal Rule. Duncan v. Walker, 533 U.S. 167,
174 (2001) (quoting United States v. Menasche, 348 U.S. 528,
538–39 (1955)). The “reasonable indication” standard would
make Rule 23(e)(4) “insignificant, if not wholly superfluous,”
id., buttressing our conclusion that nothing in Rule 23 requires
its adoption.
We could end our analysis there, having determined
Rule 23’s text does not embrace the “reasonable indication”
standard. But we cannot ignore the practical consequences the
District Court recognized that also militate against adopting the
“reasonable indication” standard.
For starters, permitting parties to opt out through mere
“indication” rather than following the directed means of
requesting exclusion promises to make administering class
actions even more difficult. Today’s class actions are already
immensely complicated and “may have thousands, even
millions, of members.” In re Navistar MaxxForce Engines
Mktg., Sales Pracs., & Prods. Liab. Litig., 990 F.3d 1048, 1053
(7th Cir. 2021). Endorsing the “reasonable indication”
standard thrusts on district courts the task of resolving “dozens
or hundreds of difficult questions”—each necessitating its own
factfinding—to determine whether class members are in or out
of the class at any point during the pendency of the action. Id.
Contrast this approach with the (straightforward)
alternative—class members must follow the procedures
prescribed by a district court under Rule 23(c)(2)(B) during the
specified time period to exercise their right to exclude

-- 14 of 26 --

15
themselves from the class. Following this course has the virtue
of both being easily administrable and making opt-outs readily
determinable. As for administrability, requiring class members
to avail themselves of the procedures set out in a class notice
avoids subjecting district courts to a flurry of motions, each
claiming that certain actions constitute a “reasonable
indication” of a class member’s intent to opt-out, thereby
lessening the heavy burden that district courts already bear by
presiding over class actions. Relatedly, insisting that class
members “follow the instructions they have been given and opt
out (or not) in the formal way the district judge told them to
use” does much to avoid disputes about whether a class
member has in fact opted out. Id. Instead of resolving scores
of motions and deciphering cryptic “indications” of an intent
to opt out, district courts need only consider whether
individuals have followed the measures established to request
exclusion, which lends itself to ready determination.6
This leads us to our second observation. Embracing the
“reasonable indication” standard complicates the analysis a
district court must undertake when considering whether to
approve a class action settlement. In order to accurately
appraise whether a proposed settlement is “fair, reasonable,
and adequate as required by Rule 23(e),” In re Gen. Motors
Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d
768, 785 (3d Cir. 1995), the district court has to know who is
6 Of course, parties may on occasion dispute whether a class
member has sufficiently complied with a district court’s
instructions for requesting exclusion. Resolution of such
disputes lies within the sound discretion of the presiding
district judge. See In re Deepwater Horizon, 819 F.3d 190, 195
(5th Cir. 2016).

-- 15 of 26 --

16
in the class and, therefore, whose claims will be settled. But
the “reasonable indication” standard makes class membership
an endlessly moving target given the breadth of potential
actions that might satisfy it. As the Seventh Circuit put it,
“[w]ithout knowing who remains in, the judge could not decide
whether [the settlement] is appropriate or perhaps should be
reduced by opt-outs’ claims, or treated as inadequate because
class members had voted with their feet to disapprove the
resolution.” In re Navistar MaxxForce, 990 F.3d at 1053.
Such indeterminacy risks “mak[ing] class actions difficult if
not impossible to administer,” id., and we will not subject
district courts to that added burden.
Finally, enforcing compliance with a district court’s
chosen opt-out mechanism guards against “the option of one-
way intervention.” Id. at 1052. Under the “reasonable
indication” regime, a savvy class member might recognize that
it can minimize its downside by litigating an individual action
while simultaneously not opting out of the class. If the class
member’s individual action proves successful, it enjoys the
recovery that comes with it. If not, it can argue that the lack of
a formal opt-out notice means that it is entitled to take part in
the class settlement. But this advantageous strategy falls away
“when courts stick to the rules they have established.”7 Id. at
1053. By requiring a request for exclusion by a specified
7 It would be odd to interpret Rule 23 to provide for this
possibility given that “[t]he 1966 amendments [to Rule 23]
were designed, in part, specifically to mend” the problem of
one-way intervention “and to assure that members of the class
would be identified before trial on the merits and would be
bound by all subsequent orders and judgments.” Am. Pipe &
Constr. Co. v. Utah, 414 U.S. 538, 547 (1974).

-- 16 of 26 --

17
deadline, class members are faced with a choice—strike out on
their own in an individual action or remain a member of the
class. Either way, class members cannot unfairly “hedg[e]
their bets” to the detriment of the court and the class. In re
Processed Egg Prods. Antitrust Litig., 130 F. Supp. 3d 945,
952 (E.D. Pa. 2015) (Pratter, J.).
* * *
We expect class members to comply with court orders
to pursue and vindicate their rights. The right to opt out is no
different. Accordingly, we join the Seventh Circuit in holding
what intuition posits. Because Rule 23 requires a district court
to prescribe the way for class members to request exclusion,
they have to follow those instructions in order to opt out—a
mere “reasonable indication” of an intent to opt out will not do.
So Sculptor cannot now recast its conduct as an indication of
its decision to opt out in order to cure its noncompliance with
the District Court’s clear instruction.
B. The District Court Did Not Abuse Its Discretion
by Declining to Permit Sculptor’s Late Opt-Out
Alternatively, Sculptor argues the District Court abused
its discretion by declining to excuse Sculptor’s late opt-out
notice. Federal Rule of Civil Procedure 6(b)(1)(B) permits a
district court to excuse an untimely filing when “the party
failed to act because of excusable neglect.” Courts weigh the
four factors articulated by the Supreme Court in Pioneer
Investment Services Co. v. Brunswick Associates Limited
Partnership, 507 U.S. 380 (1993), to determine whether to
permit a tardy filing. Orthopedic Bone Screw, 246 F.3d at 322–
23. District courts must consider and balance all factors, and

-- 17 of 26 --

18
“no one factor trumps the others.” In re Am. Classic Voyages
Co., 405 F.3d 127, 133 (3d Cir. 2005).
Here, the District Court concluded that those factors—
the danger of prejudice; length of delay; reason for delay; and
whether the movant acted in good faith—weigh against
Sculptor and rejected its attempt to excuse its late opt-out. We
agree and consider each factor in turn.
1. Prejudice
We begin with the prejudice factor. Under Pioneer,
“prejudice is not an imagined or hypothetical harm; a finding
of prejudice should be a conclusion based on facts in
evidence.” In re O’Brien Env’t Energy, Inc., 188 F.3d 116, 127
(3d Cir. 1999). On the record before it, the District Court
reasoned that this factor “slightly weighs against Sculptor”
because, while “Perrigo would suffer minimal prejudice from
having to continue to defend” Sculptor’s individual action,
Perrigo maintained “an interest in achieving finality by
resolving as many claims against it as possible.” Roofer’s
Pension Fund, 2024 WL 4205638, at *14. We agree that this
factor tilts against Sculptor, but primarily for a different reason
than the District Court.
We have previously recognized that class action
defendants have an interest in resolving as many claims as
possible and that “achieving global peace is a valid, and
valuable, incentive to class action settlements.” Sullivan v. DB
Invs., Inc., 667 F.3d 273, 311 (3d Cir. 2011) (en banc). But the
class action device does not pursue finality and a global
resolution of claims at all costs. Rather, “courts and Congress
have constructed a careful balance designed to protect both the

-- 18 of 26 --

19
absent class members . . . and defendants.” Fischer v. Fed.
Express Corp., 42 F.4th 366, 373 (3d Cir. 2022) (Scirica, J.).
So upsetting a defendant’s interest in resolving all claims
against it does not suffice to establish prejudice—if it did, the
prejudice factor would always weigh against excusing an
untimely filing.8
Nonetheless, the record supports the District Court’s
determination that the prejudice factor weighs against Sculptor
because its long-overdue opt-out notice threatened to derail
Perrigo’s settlement with the class. By the time that Sculptor
moved for exclusion, the District Court had already
provisionally approved the proposed settlement which
included, and whose figures were based on, Sculptor’s claims.
Permitting Sculptor to opt out at that late stage had the prospect
of sending the parties back to the drawing board to negotiate a
new settlement in light of the diminished class. So while
Sculptor’s opt out would not have itself blown up the
settlement,9 the risk of undermining a provisionally approved
8 For this same reason, we agree with the District Court that
“merely having to continue to defend an ongoing lawsuit is
not—without more—prejudicial enough to bar a party from
opting out of a class action.” Roofer’s Pension Fund, 2024 WL
4205638, at *14 (citing In re Processed Egg Prods. Antitrust
Litig., 130 F. Supp. 3d 945, 954 (E.D. Pa. 2015) (Pratter, J.)
(concluding the same)).
9 The proposed settlement did not include a “blow up
provision” that would have permitted Perrigo “to withdraw
from—or ‘blow up’—[the] settlement if a certain number of
class members opt out of the settlement.” 4 Herbert B.
Newberg & William B. Rubenstein, Newberg and Rubenstein
on Class Actions § 13:6 (6th ed. June 2025 update).

-- 19 of 26 --

20
settlement is exactly the type of “danger of prejudice to the
nonmovant” that supports the District Court’s determination
that the prejudice factor slightly disfavors Sculptor.
Orthopedic Bone Screw, 246 F.3d at 322–23.
2. Length of Delay
Next, we consider “the length of the delay and its
potential impact on judicial proceedings.” Pioneer, 507 U.S.
at 395. We measure delay “in absolute terms and not by
reference to the import of intervening circumstances,” meaning
the operative period is the time between when the opt-out
notice should have been filed versus the date leave was sought
to file it late. Orthopedic Bone Screw, 246 F.3d at 325. Here,
the District Court determined that Sculptor’s delay was
“substantial” and therefore the length-of-delay factor “strongly
disfavor[ed] Sculptor.” Roofer’s Pension Fund, 2024 WL
4205638, at *12, *14.
By any measure, the length-of-delay factor strongly
disfavors Sculptor. The opt-out deadline in the Roofer’s class
action was December 3, 2020. Sculptor did not move for leave
to opt out until July 1, 2024. That three-and-a-half-year delay
is substantial and cuts against characterizing Sculptor’s neglect
as “excusable.”
Sculptor suggests that the District Court erred by
weighing this factor against it despite its delay allegedly not
affecting the progression of the class action. But as we
explained in In re Orthopedic Bone Screw Products Liability
Litigation, “consideration of the current effect of the delay on
the proceedings” is inconsistent with our precedent that
dictates “the length of the delay should be considered in

-- 20 of 26 --

21
absolute terms.” 246 F.3d at 325. In other words, this factor
does not contain its own “prejudice” component duplicative of
the first Pioneer factor. If it did, the length-of-delay factor
would be entirely beholden to “the urgency created by the
[defendant]’s time line,” thereby rendering some delays
“significant, whereas a similar delay, or even a much longer
delay . . . would be insignificant” in other cases. In re O’Brien
Env’t Energy, 188 F.3d at 130. Pioneer does not demand that
result, and neither will we.
3. Reason for Delay
The third Pioneer factor—the reason for the movant’s
delay—also tilts against Sculptor for similar reasons. As all
agree, Sculptor’s mistake was due to its “former counsel’s
failure to file the opt-out request.” Roofer’s Pension Fund,
2024 WL 4205638, at *13. In isolation, this failure might be
excusable. But what followed is not. After the expiration of
the opt-out period, counsel for the class, at the direction of the
District Court, filed a list of parties who had opted out to pursue
individual actions against Perrigo. Several class members who
intended to opt out noticed that their actions did not appear
among those listed and, upon this realization, “expeditiously
moved to be excluded after the opt-out deadline.” Id. at *14.
The District Court granted these motions.
This flurry of activity immediately after the opt-out
deadline “should have alerted Sculptor’s former counsel to at
least check the Opt-out list.” Id. But counsel did not verify
Sculptor’s opt-out status and instead merely continued course
in the separate action against Perrigo. The only excuse offered
for this failure was that counsel “did not review this list at the
time and continued to believe thereafter that [counsel] had

-- 21 of 26 --

22
submitted the opt-out letter to the Claims Administrator and
that Sculptor had formally opted out of the Class Action.”
App. 1144 (declaration of Sculptor’s former counsel). This
omission on top of counsel’s initial failure to submit an opt-out
form only highlights a general “lack of diligence.” Roofer’s
Pension Fund, 2024 WL 4205638, at *14. And because
“clients must be held accountable for the acts and omissions of
their attorneys,” Pioneer, 507 U.S. at 396, Sculptor bears the
burden of its former counsel’s mistakes.
Sculptor counters that its “inadvertent failure to ensure
that a filing was completed should not have weighed against”
it because, after all, “the concept of excusable neglect clearly
anticipates . . . neglect on the part of the one seeking to be
excused.” Opening Br. 41 (quoting In re O’Brien Env’t
Energy, 188 F.3d at 128). True enough, but that does not get
Sculptor very far. Under Pioneer, “the equities will rarely if
ever favor a party who fails to follow the clear dictates of a
court rule” where “the rule is entirely clear.” Silivanch v.
Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003)
(cleaned up). So the fact that Sculptor’s mistake “was entirely
avoidable and within [its] control,” coupled with its
demonstrated lack of diligence, supports the District Court’s
determination that this factor, too, weighs against it. In re Am.
Classic Voyages, 405 F.3d at 134.
4. Good Faith
Finally, the District Court concluded that the good-faith
factor “weighs in Sculptor’s favor.” Roofer’s Pension Fund,
2024 WL 4205638, at *15. We agree. As the District Court
found, “[n]othing in the record suggests Sculptor failed to
timely opt out to gain a tactical advantage” or that its “failure

-- 22 of 26 --

23
was intentional.” Id. Perrigo does not argue to the contrary,
and the record does not indicate the District Court’s factual
finding was clearly erroneous. Despite this favorable finding,
Sculptor contends that the District Court “minimized the
importance of Sculptor’s good faith.” Opening Br. 42. But our
review of the District Court’s well-reasoned opinion reveals no
such minimization, so we reject this argument as well.
* * *
In light of the record and the District Court’s thoroughly
reasoned opinion weighing the Pioneer factors, the District
Court did not err—much less abuse its discretion—by
concluding the balance of factors disfavors Sculptor. Thus,
Sculptor has not demonstrated that its neglect was excusable,
and it may not opt out of the class at this late stage.
C. The Class Notice Satisfies Due Process
Sculptor’s last argument challenges the adequacy of the
class notice on due process grounds. In particular, Sculptor
contends that the notice “fail[ed] to describe the consequences
that would stem from a settlement with sufficient clarity” and
“misstated the consequences that would follow from a
proposed settlement.” Opening Br. 47. For these reasons,
according to Sculptor, the notice does not adequately apprise
class members of the consequences of remaining in the class,
thereby violating due process. We disagree.
Our cases have recognized the importance of accurate
and clear class action notices as a function of due process. In
addition to Rule 23(c)(2)(B)’s command that notices “clearly
and concisely state in plain, easily understood language” the

-- 23 of 26 --

24
seven enumerated categories of information concerning the
class action, we have explained that, to comport with due
process, “the notice should contain sufficient information to
enable class members to make informed decisions on whether
they should take steps to protect their rights, including
objecting to the settlement or, when relevant, opting out of the
class.” In re Baby Prods. Antitrust Litig., 708 F.3d 163, 180
(3d Cir. 2013). Thus, a notice must supply class members with
enough information to make an informed decision about their
rights and how best to protect them.
Here, the class notice satisfies this standard. Start with
the warnings it provided. No fewer than three times, the notice
cautioned class members about the consequences of class
certification:
• “You will automatically be included in the Class(es)
unless you request exclusion in accordance with the
procedure set forth [in the notice]”;
• “If you fall within one or more of the Class definitions
and are not otherwise excluded, you will automatically
be considered a member of such Class unless you
request exclusion”;
• “If you choose to remain in the Class(es), you will be
bound by all orders and judgments in this Action,
whether favorable or unfavorable.”
App. 680–81 (emphasis removed). Read in tandem, these
provisions plainly state that, unless they request exclusion,
anyone falling within the class definition will be deemed a
class member and bound by all orders and judgments in the
Roofer’s class action.

-- 24 of 26 --

25
Sculptor accepts that these provisions satisfy due
process as far as they go. It instead argues that the notice
violates due process because it fails to adequately explain the
consequences of one particular configuration of events. In
Sculptor’s view, the notice lacked any “warning that a
settlement could eliminate their rights to pursue individual
litigation” and “instead warned only that a loss of individual
claims might occur ‘[i]f Defendants prevail,’ and then only
‘with regard to any of the issues decided in this Action.’”
Opening Br. 48 (alteration in original) (quoting App. 681). On
Sculptor’s reading, the upshot is that “[n]owhere does the
Notice warn that a settlement will eliminate individual
litigation rights.” Id.
But Sculptor’s argument necessitates a hyper-technical
reading of the notice that strains to create ambiguity where
none exists. As is by now pellucid, due process demands only
“notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314
(1950). With reasonableness as our guide, due process requires
only that a notice “contain information that a reasonable person
would consider to be material in making an informed,
intelligent decision of whether to opt out or remain a member
of the class.” In re Nissan Motor Corp. Antitrust Litig., 552
F.2d 1088, 1105 (5th Cir. 1977). That a notice “could have
more clearly described” the effects of a settlement “is not
enough to demonstrate a due process violation.” In re
Processed Egg, 130 F. Supp. 3d at 951.
Against this benchmark, the notice ably comports with
due process. The District Court persuasively explained that

-- 25 of 26 --

26
“[r]ead together, the Notice’s statements are clear” such that a
reasonable person would understand that continued
membership in the class would result in being bound by all
orders and judgments, including settlement. Roofer’s Pension
Fund, 2024 WL 4205638, at *11. And if a class member
wished to continue its pursuit of an individual action against
Perrigo, it had to request exclusion. That description of the
consequences afforded class members the opportunity to
evaluate their options and make an informed decision about
their rights. Due process requires nothing more.
IV. Conclusion
We end as we began—this case is born of mistakes. To
be sure, both sides made some. But on this occasion, the Civil
Rules prioritize Perrigo’s and the class’s interests in efficiency
and finality over Sculptor’s interest in belatedly pursuing an
individual action. Sculptor had the opportunity to opt out early
in this litigation, but it failed to do so. Having made that
mistake, it has to live with the consequences. Nothing in the
Federal Rules of Civil Procedure requires it to be given a
second chance years later.
For the foregoing reasons, we will affirm the District
Court’s judgment.

-- 26 of 26 --