This article is reprinted with permission from the April 28, 2003, issue of the New Jersey Law Journal.
Recent rulings in New Jersey state and federal courts suggest that Federal Rule of Civil Procedure 23 (b)(2) will not provide an easier route to class action status than Fed. R. Civ. P. 23(b)(3). These courts are enforcing express and implied limits to the availability of (b)(2) certification.
Substantive and practical impediments exist to certification under Fed. R. Civ. P. 23(b)(3) and its state court counterpart, Rule 4:32-1(b)(3). Notice to prospective class members can be costly. Providing them an opportunity to opt out or to participate with their own counsel can complicate prosecution of a class action and render it less attractive to class counsel.