## Facts

- Zimmer Paper Products, Inc. was a corporate member of a plaintiff class in a prior antitrust class action that settled.
- The district court in the antitrust action approved a notice plan for the settlement and claims process using first-class mail to class members and publication in the Wall Street Journal.
- Class counsel implemented the court-approved notice plan.
- Zimmer alleged it did not receive the second, claims-related notice and therefore did not file a proof of claim, losing an estimated $250,000 recovery.
- Zimmer sued former class counsel (and related attorneys), asserting (1) breach of fiduciary duty for not proposing or using more extensive notice procedures and (2) negligence in carrying out the ordered notice program.
- The district court granted summary judgment for defendants on both theories, and Zimmer appealed.

## Issues

1. Whether class counsel breached a fiduciary duty to a class member by not proposing or implementing notice procedures beyond those approved by the court.
2. Whether a class member’s alleged non-receipt of a settlement/claims notice, without more, creates a triable issue that class counsel negligently executed a court-ordered notice plan.

## Decision

- The Third Circuit affirmed summary judgment for defendants.
- The court held that adherence to the court-approved, customary notice program (first-class mail plus publication) did not constitute a breach of fiduciary duty.
- The court held Zimmer failed to produce evidence of negligent execution of the notice plan; non-receipt alone did not support an inference of negligence.

## Legal Principles

- When class counsel proposes and implements a notice program that is customary, court-approved, and sufficient under Rule 23 and due process, counsel generally satisfies fiduciary obligations to absent class members regarding notice.
- A class member’s failure to receive a particular notice, standing alone, is insufficient to establish negligence in execution absent evidence of irregularities or specific mishandling in the notice process.
- Summary judgment is appropriate where the plaintiff offers no evidence from which a reasonable factfinder could infer a breach of duty or negligent performance beyond speculative non-receipt.

## Conclusion

The Third Circuit declined to impose liability on class counsel for failing to exceed court-approved notice procedures and held that a class member’s alleged non-receipt, without concrete proof of faulty implementation, does not support fiduciary-duty or negligence claims against counsel.


Zimmer Paper Prods., Inc. v. Berger & Montague, P.C., 758 F.2d 86 (3d Cir. 1985)