Yes, it does matter. In this article, we answer some common questions of young lawyers concerning the difference between a Rule 23(b)(2) class and a Rule 23(b)(3) class. All references are to the text of Federal Rule of Civil Procedure 23, unless otherwise noted.
When Should a Rule 23(b)(2) Class Be Requested?
A Rule 23(b)(2) class should be requested when a plaintiff seeks injunctive or declaratory relief that would benefit all members of the class. This type of class would be appropriate, for example, where a company has a policy that discriminates against one group of individuals, such as women or minorities, and the lawsuit seeks a single injunction ordering the company to change its policy as it relates to all of those individuals. Another example would be where a company is engaging in anticompetitive behavior, and the lawsuit seeks merely to stop such behavior or declare it unlawful. The relief sought in both examples would benefit the class at large without requiring any inquiry into the individual circumstances of the absent class members. While “incidental” money damages are occasionally allowed in (b)(2) cases, as discussed below, requesting any type of money damages or back pay heightens the risk that the class will be bounced into the (b)(3) realm. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557–61 (2011).