South Carolina Class Action Litigation: A Review

Class action litigation provides a means by which large numbers of claims with similar legal or factual issues can be effectively managed and resolved. In appropriate circumstances, class actions provide several benefits in the public interest. Judicial resources are conserved and expense to the litigants reduced by the elimination of needless repetition. Justice to large numbers of claimants is expedited. Finally, in cases involving relatively small claims for relatively small money damages on behalf of each class member, claimants who otherwise might be denied their day in court because of the expense of litigation are able to have their cases heard and resolved.

In South Carolina, Rule 23, S.C.R.C.P., defines the circumstances under which a case may be certified as a class action. The South Carolina Rules of Civil Procedure, including Rule 23 pertaining to class actions, took effect on July 1, 1985, as the governing procedural rules in civil litigation. [See Rule 86, S.C.R.C.P.] Rule 23(a) provides as follows:

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if the court finds (1) the class is so numerous that joinder of all members is impractical, (2) there are questions of law or fact common to the class (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, (4) the representative parties will fairly and adequately protect the interest of the class, and (5) in cases in which the relief primarily sought is not injunctive or declaratory with respect to the class as a whole, the amount in controversy exceeds one hundred dollars for each member of the class.

Although there are several hundred reported cases involving class actions in the federal court system, there are relatively few reported opinions in South Carolina interpreting S.C.R.C.P. 23. A review of the cases discussing Rule 23 and its application in South Carolina; however, does reveal that the courts have established basic guidelines for class actions. Also, an examination of cases discussing the application of Rule 23(a) S.C.R.C.P. reveal South Carolina courts tend to adopt procedures which are established in the federal court system. [See Gardner v. Newsome-Buick, Co., 304 S.C. 328, 404 S.E.2d 200 (1991)(In absence of state law regarding civil rules, courts should examine federal court construction)]


Prior to July 1, 1985, class action litigation in South Carolina was governed by S.C. Code § 15-5-50, which provided:

When the question is one of common or general interest to many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.

S.C. Code § 15-5-50 was repealed with the adoption of the civil rules.[See McGann v. Mungo, 340 S.E.2d 154, 157 (S.C. App. 1986)]. It should be noted, however, that the class action or representative suit predate both the enactment of § 15-5-50 and Rule 23.

Class action suits began as bills of peace in equity involving multiple parties. [Hansberry v. Lee, 311 U.S. 32, 42, 61 S.Ct. 115, 118 (1940)] The development of this form of representative litigation was spurred by several practical needs. The needs included protecting defendants from inconsistent obligations, protecting the interests of parties not before the court, providing a convenient and economical means for disposing of similar lawsuits and spreading the costs among numerous litigants with similar claims. [Yeazell, Group Litigation and the Social Context: Toward a History of the Class Action, 77 Colum. L. Rev. 866, 866-96 (1977)] A bill of peace would be brought, for example, when a lord of the manor appropriated village common lands to the loss of the manorial tenants, or when a vicar quarreled with his parishioners about tithes. [In re Consumers Power Co. v. Securities Litigation, 105 F.R.D. 583, 600 (E.D. Mich. 1985)]

In such situations, each member of the multitude had the same interest at stake as every other member, so it was an obvious waste of time to try the common question of law or fact over and over in separate actions between the vicar and one parishioner after another. It was much more economical to get everybody into a single chancery suit and settle the common questions once and for all. [Z. Chaffee, Jr., Some Problems of Equity, 201 (1950)]

The common law roots of the class action "bill of peace" were officially discarded in South Carolina in Brown v. American Telephone and Telegraph Co., 378 S.E.2d 597, 601 (S.C. 1989).  Therein the court noted that S.C.R.C.P., Rules 23 and 42 regarding class actions and consolidation accomplish the same effect as a bill of peace and therefore supplant it. [Id.]

The statutory provision, § 15-5-50, based on common law severely restricted the joinder of claims and claimants. At common law, a husband’s cause of action for the loss of the wife’s services, companionship, and expenses incurred by him on account of injury to the wife could not be joined with the cause of action for injuries personal to the wife. [Ryder v. Jefferson Hotel Co., 121 S.C. 72, 113 S.E. 474 (1922)] A husband and wife could not even maintain a single action for being expelled from a hotel on charges they were not married. [Id.] Actions in tort were held improper for joinder by several plaintiffs unless they had "suffered joint injuries resulting in damages in solido. [Hellams v. Switzer, 24 S.C. 39 (1885); General Supplies, Inc. v. Southwire Co., 276 S.C. 55, 275 S.E.2d 579 (S.C. 1981)]

Since the adoption of the South Carolina Civil Rules in 1985, a restrictive view of the types of cases which may be certified for class action disposition is not justified. Rule 1 provides that the civil rules apply to all suits of a civil nature, in law or equity, and "shall be construed to secure the just, speedy, and inexpensive determination of any action." The principles enunciated in Rule 1 are inherently consistent with the rationale for allowing class action litigation.

Rule 23, S.C.R.C.P., is in large part modeled after Rule 23, Fed.R.Civ.P. After the federal rule was approved, federal courts soon adopted the philosophy that Rule 23 should be given a "liberal rather than a restrictive interpretation."  [See Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968); rev'd on other grounds, 417 U.S. 156, 94 S.Ct. 214 (1974); Moss v. Lane Co. 50 F.R.D. 122, 125 (W.D. Va. 1970), aff'd in pertinent part, 471 F.2d 853 (1973)]

In reviewing the standards to be applied regarding certification of a class on the federal level, courts have stated, "If there is to be an error made, let it be in favor of and not against the maintenance of the class action." [Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194 (1969)] Further, in South Carolina the court "may not look to the merits when determining whether to certify a class." [Tilley v. Pacesetter Corp., 508 S.E.2d 16 (S.C. 1998)] 

Prior to the enactment of the South Carolina Civil Rules, § 15-5-50 was discussed in Dockside Association, Inc. v. Detyns, Simmons and Carlisle, 285 S.C. 565, 330 S.E.2d 537 (Ct. App. 1985), aff'd as modified, 287 S.C. 287, 337 S.E.2d 887 (1985)]  In Dockside, the court recognized that a representative action brought pursuant to § 15-5-50 could be maintained, "only when the parties represented were either united in interest or had some bond of connection that united them all with the question in issue in the action." [McGann v. Mungo, 340 S.E.2d 154, 157 (S.C. App. 1986)]  The rejection of the restrictive approach imposed by the Field Code, and a drift toward liberalization by adoption of Civil Rule 23 pertaining to class action practice in South Carolina, was discussed in McGann at 157-58:

Although § 15-5-50 and Rule 23(a)(2) provide similar language in providing for class actions, the requirements for a class action contained in the rule are not identical to those prescribed by the prior statute. As Dean Lightsey and Professor Flanigan observe:

Class actions…do not remain as they were under prior practice. The main limitation on the representative suit in this jurisdiction was the restrictive view of the Field Code that required a strong pre-existing legal relationship among the parties to be joined and which, by inference, applied to all prospective class members. Adoption of the flexible joinder rules for claims and parties in Rules 18 and 20, respectively, rejects that narrow view in favor of a pragmatic consideration of the extent of common issues. Consequently, there is no restriction on joining claims simply because each party seeks an independent recovery.

Rule 23(a)(2) of the new rule permits members of a class to sue as representative parties on behalf of all if, among other things, ‘there are questions of law or fact common to the class.’

The essence of a class action is common questions of law and fact, and Rule 23(a)(2) reflects this. It is important to note that the subsection does not demand that all questions of law and fact be common, only that there be common issues among the class. In fact, a single common issue will suffice if it is important enough. It also follows that the mere existence of individual issues does not defeat class action status.

As recognized in McGann, with the adoption of Rule 23, South Carolina has adopted a pragmatic and contemporary standard for resolving complex litigation. Common law principles antagonistic to joinder are abandoned. In General Supplies, Inc. v. Southwire Co., 275 S.E.2d 579, 580 (S.C. 1981) the court indicated that case law in South Carolina was to the effect that actions at law for personal remedies could not be brought as class actions. Thus, in tort actions, plaintiffs could not sue unless damages were in solido. The adoption of Rule 23 and the principles enunciated in McGann and Brown indicate that such actions are no longer impermissible. At common law, the types of cases created by pollution, drugs, security and banking fraud, asbestos, and other modern day disasters did not exist. With changing times, there must be changing laws.


Rule 23 S.C.R.C.P. criteria required for class certification are: (1) numerosity; (2) commonality; (3) typiClass Action Litigationty; and (4) adequacy. The rule also requires that the amount in controversy must exceed one hundred dollars for each member of the class unless the relief primarily sought is injunctive or declaratory.

Proponents of class certification bear the burden of demonstrating all requisite elements have been met. [Waller v. Seabrook Island Property Owners Assoc., 388 S.E.2d 799, 801 (S.C. 1990), citing Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1605 (1978)] South Carolina Courts will apply a rigorous analysis to assure the prerequisites of Rule 23(a) have been satisfied. The failure of the proponent to satisfy any one of the prerequisites is fatal to class certification. Additionally, a trial judge’s ruling on whether an action is properly maintainable as a class action is within his discretion. [Id.]

Unlike Rule 23, Fed.R.Civ.P., the South Carolina Rule does not have a provision similar to 23(b)(3), which provides certification is proper if class action management provides a superior method of disposition compared to individual case litigation. However, if judicial resources would not be conserved, the ultimate disposition of numerous claims advanced, or if class management techniques are not practical in the circumstances presented by the case, in all likelihood "superiority" would not be present, and one or more of the four basic criteria demanded by S.C.R.C.P. 23 would also be absent.

Since there is a paucity of case law interpreting the criteria set forth in S.C.R.C.P. 23, and examination of both federal court and South Carolina judicial interpretation of their respective class action rules proves useful in predicting the construction that would be applied in South Carolina to new issues.


S.C.R.C.P. Rule 23(a)(1) provides the class must be so numerous that joinder of all members is impracticable. Impracticable has been interpreted to mean extremely difficult or inconvenient but not necessarily "impossible."  [Ditty v. Check Rite, Ltd., 182 F.R.D. 639 (D Utah 1998); Robidoux v Celani, 987 F2d 931, 935 (2d Cir. 1993); Smith v. B&O R.R., 473 F. Supp. 572, 581 (D. Md. 1979); Doe I v. Guardian Life Insurance Company of America, 145 FRD 466, 471 (ND IL 1992)]

The court should examine not only the precise numbers of claims involved, but focus on the question of whether joinder is practicable in light of the class size and other relevant factors. Relevant factors include the number of claims and the degree of dispersion of class members. The number of claims required "is a subjective determination based on number, expediency and inconvenience of trying individual suits."  [Pabon v. McIntosh, 546 F.Supp. 1328, 1333 (E.D. Pa. 1982)]


Rule 23(a)(2) requires "questions of law or fact common to the class." The "common question" provision in federal court has been given a liberal construction requiring only that "one or more significant common questions of law or fact" be shared by the class. South Carolina courts have recognized that a single question of law or fact of sufficient importance in proportion to the rest of the action justifies class action disposition. [McGann v. Mungo, 340 S.E.2d at 158.]

S.C.R.C.P. RULE 23(a)(3): TYPIClass Action LitigationTY

TypiClass Action Litigationty as well as "adequacy" concern the characteristics of the class representative compared to the class members. At least one court has construed the "typiClass Action Litigationty" requirement and the commonality requirement as duplicative. [Scott v. University of Delaware, 601 F.2d 76, 85 (3d Cir.), cert. denied, 444 U.S. 931 (1979)] If the named class representatives’ claims are essentially the same as those of the class and arise from the same course of conduct that creates the claims of the class members, typiClass Action Litigationty should be established.

S.C.R.C.P. RULE 23(a)(4): ADEQUACY

The adequacy of representation requirement of Rule 23(a)(4) is satisfied if the class representatives have no interests that are antagonistic to the absent class members, and counsel representing the class is qualified, experienced, and capable of litigating the case competently. [See Waller v. Seabrook Island Property Owners Assoc., 388 S.E.2d at 801.]

Adequacy of class representation also concerns the ability of the named plaintiff or his counsel to advance the costs and expenses of the litigation. In states where attorneys cannot ethically permit the recovery of expenses on a contingency basis, defense counsel may attempt to challenge the adequacy of the class representative on the basis of the representative’s financial condition.  However, if counsel has agreed to advance the costs of the litigation, it would appear that the financial aspect of adequacy has been met.

In South Carolina, Rule 407 SCACR 1.8(e)(1)&(2), provides:

(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

Thus, if a South Carolina attorney has agreed to advance costs and expenses of a class action and recover same on a contingency basis, inquiry into the clients’ financial status is irrelevant.


Generally, the amount in controversy is the value of the object to be gained by the suit. [Swan Island Club v. Ansell, 51 F.2d 337 (4th Cir. 1931)]   Gardner v. Newsome Chevrolet-Buick, Inc.,  404 S.E.2d 200 (1991) recently interpreted the "amount in controversy" provision set forth in S.C.R.C.P. Rule 23 (a)(5). Adopting the principles utilized by federal courts for determining jurisdiction, the court indicated the following standard should be applied to determine whether the amount in controversy required by Rule 23(a)(5) is met:

The rule governing dismissal for want of jurisdiction, in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938). [Emphasis added.][Id. at 201]

In determining whether the $100.00 threshold has been met, in South Carolina the Gardner court held punitive damages and attorneys fees shall not be considered.[Id. at 202.] From the text of the rule, however, if the primary relief sought is injunctive or declaratory, it is clear the amount in controversy provision is inapplicable. [Rule 23(a)(5), S.C.R.C.P.]


After finding that all of the elements of Rule 23(a), S.C.R.C.P. are present and a class is certified, the court as well as counsel representing the absent class members retains the responsibility of assuring that the due process rights of the absent class members are protected. In addition to adequacy of representation, due process considerations may include the right to notice of the proceeding, an opportunity to intervene, object to the proceeding, and to "opt-out" of the action altogether. [See Phillips Petroleum Co. v. Shutts, 472 U.S. 787, 105 S.Ct. 2965 (1985)]

In South Carolina as well as in numerous other states, a class action, once certified, may not be dismissed to the prejudice of class members or compromised without court approval and notification of all members of the class. Although individual members of a class may settle their claims against a party to a class action, class representatives may not enter into settlements of their individual claims because of their fiduciary duty to the class. [Prem. Investment Corp. v. Green, 324 S.E.2d at 77; See In re Green, 354 S.E.2d 557 (S.C. 1987); Rogers v. U.S. Steel Corp., 70 F.R.D. 639 (1976)]


It is fundamental constitutional principle that one is not bound by a judgment in personam in litigation which he is not designated as a party or has not been made a party by service of process. [Pennoyer v. Neff, 95 U.S. (5 Otto) 714 (1878)] A judgment rendered in such circumstances is not entitled to full faith and credit under the constitutional statutes of the United States. [Hansberry v. Lee, 311 U.S. 40, 61 S.Ct. at 117]

Notice and an opportunity to be heard are fundamental requisites of due process. In a voluntary class proceeding in personam jurisdiction is obtained over class members by serving notice on the class members and by their "voluntary" submission to jurisdiction by electing not to opt-out of the proceedings. By submitting to jurisdiction, the absent parties are bound by the decree if the named parties adequately represent them in the prosecution of litigation of common interest. Notice must be "reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314-15, 70 S.Ct. 652, 657-58 (1950)]

The provisions in Federal Rule 23(c)(2) for notice are substantially different from the provisions for notice set forth in Rule 23(d)(2) S.C.R.C.P. Under the federal rule and the South Carolina rule, there is no express requirement that notice of the pendency of the lawsuit be given in actions seeking declaratory, or injunctive relief. In actions seeking monetary damages, the Federal Rule expressly requires, "the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort."

The South Carolina rules do not contain such mandatory language, but indicate the court "may order" notice. The federal rule also expressly mandates that any class certified pursuant to Rule 23(b)(3) must inform the class members that the court will exclude the member if a request is made by a specified date. This is the so-called "opt-out" provision. The South Carolina rule does not contain an express provision permitting "opt-outs." There is a provision implicitly permitting opt-outs in that the rule requires the court to "fairly and adequately protect the interest" of the class.

In Phillips Petroleum Co. v. Shutts, 472 U.S. 787, 105 S.Ct. 2965(1985) the United States Supreme Court discussed the constitutional restraints imposed on states attempting to exercise in personam jurisdiction on nonresident citizens in a class action lawsuit. The Shutts holding was expressly limited to those situations where courts seek to bind plaintiffs whose claims were "wholly and predominantly" for money damages.

Therein, the court stated that before the forum state could bind an absent plaintiff concerning a claim for money damages or similar relief, the following basic minimum procedural safeguards must be provided:

  • (1) The plaintiff must receive notice plus an opportunity to be heard and participate in the litigation;
  • (2) The notice must be the best practicable, reasonably calculated under the circumstances, to inform interested parties of the pendency of the action and afford them an opportunity to object;
  • (3) The notice must describe the action and the plaintiff’s right in it; and
  • (4) The notice must inform the party that he has a right to exclude himself from the class by returning a form to the court.

Shutts declares the right to notice and opportunity to opt-out a prerequisite to procedural due process when in personam jurisdiction is obtained over nonresident plaintiffs by virtue of notice served upon them and their passive acquiescence in the suit. South Carolina courts are bound by the constitutional principles enunciated in Shutts. Therefore, in any action involving the exercise of South Carolina court jurisdiction over nonresidents in a manner analogous to a Fed.R.Civ.P. 23(b)(3) action, South Carolina Rule 23(d)(2) must be construed to require the minimal procedural due process protections set forth in Shutts.

In those circumstances where notice is required, actual notice served upon each class member is clearly adequate to meet due process concerns. When notice in cases predominantly for money damages is served constructively by publication, due process questions may arise. The South Carolina rule contains no requirement of individual notice and leaves the form and manner of notice to the direction of the court.

Notice by publication was discussed in Pub. Serv. Auth. v. Citizens & So. Nat. Bank, 387 S.E.775 (S.C. 1989).  Therein, the court noted that adequate and reasonable notice, sufficient to satisfy Rule 23 S.C.R.C.P. and the due process clause of the state and federal constitution may be given to class members by publication when it is impracticable to serve all member with actual notice. Id. at 785.

Federal cases interpreting the use of publication to provide constructive notice of pending litigation have generally been critical of the practice. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 658 (1950) the Supreme Court held that publication notice could not satisfy due process where the names and addresses of the [persons notified] were known. If federal constitutional guarantees of due process are offended by notice through publication when names and addresses can be ascertained, the practice would also be improper under Rule 23 S.C.R.C.P. even if permitted by the rule.

Rule 23, S.C.R.C.P. does not delineate different forms of notice in a class proceeding, but at least two forms of notice would be routinely proper in a class proceeding.

The first form of notice would be issued early in the proceedings. The notice would serve to tell class members the following:

  • (1) That a class action proceeding has been filed and litigation is pending;
  • (2) The underlying basis for the suit, the forum where the litigation is pending, and the nature of the relief sought;
  • (3) That class members have a right to exclude themselves from the proceeding if they so desire;
  • (4) That class members have a right to seek intervention in the suit; and
  • (5) That class members will be bound by any judgment therein if they elect not to opt-out of the class.

The second form of notice in a class action proceeding would be served to inform class members of the proposed settlement of the class action or of a favorable result upon completion of trial. In this notice, the following element should be included:

  • (1) The nature of the case;
  • (2) The history of the litigation;
  • (3) The proposed terms of any settlement;
  • (4) That the proposed terms of any settlement will be subject to judicial review for fairness;
  • (5) That the class member has a right to object to the settlement;
  • (6) The manner for filing objections and the deadline for filing; and
  • (7) The procedures for claiming compensation under the proposed settlement, if the settlement is approved.

If the fund to compensate class members was created as a result of the trial, the notice would not include procedures for objecting but would describe the results of the trial, the compensation fund created, and the manner in which class members may claim compensation by virtue of the litigation.


As a general rule, the plaintiff will bear the cost of providing notice initially to the class. The plaintiff also may be expected to bear the costs of assembling the list of class members.

The case law indicating plaintiff may be responsible for costs, however, does not abrogate a defendant’s responsibility to comply with discovery at its own expense as provided generally by the civil rules. If the information necessary to identify and notify class members is readily available to the defendant, such information may be ordered produced by the court at defendant’s costs in the ordinary course of discovery.

Utilizing the argument that due process requires actual notice to all class members who can be identified, defendants have been able to defeat class certification. In class actions involving large numbers of prospective claimants, defendants have successfully argued that the cost of serving notice on all members is so exorbitant that the class representative is inadequate for financial reasons. Another argument utilized by defendants in class actions involving potentially thousands of claimants is that the plaintiff must bear the cost of identifying the class members and that the expense of so identifying the class makes the class representatives inadequate.

Public policy and the purpose of representative actions logically defies any argument that a defendant should escape liability because it has damaged such a large number of people that a class is unmanageable, or too expensive for any plaintiff to prosecute. Defendants naturally will not cooperate in providing notice or in identifying class members if they can argue that identification and notice is too expensive. Defendants may, as a practical matter, even refuse to produce information about class members that is readily available, arguing instead, that a more expensive method of ascertaining names should be used while refusing to reveal less expensive methods.

The argument that an action is too expensive for a plaintiff may be eliminated if the burden for identification of the class and providing notice can be shifted to a defendant. There are circumstances in which the burden of notice and identification may be properly shifted to a defendant. For instance, a number of courts have required defendants in Rule 23(b)(3) classes to enclose class notices in their own periodic mailing to reduce the costs of notice. [See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. at 355, 98 S.Ct. 2380, 2391 n. 22; Ste. Marie v. Eastern R. Ass'n, 72 F.R.D. 442, 450 n.2 (S.D.N.Y. 1976); Gates v. Dalton, 67 F.R.D. 621, 633 (E.D.N.Y. 1975); Popkin v. Wheelabrator-Frye, Inc., 20 Fed.R.Serv.2d 125, 130 (E.D.N.Y. 1975).  Rule 23, S.C.R.C.P., provides great flexibility to the court adjudicating a class action to modify its orders pertaining to class action management as well as the definition of the class. As previously stated, great latitude is given to the court on the form and manner of action permitted.

In cases involving potentially thousands of prospective members, there is no logical reason mandated by the South Carolina rules or by due process concerns to require that the initial class definition must include everyone who may potentially have a claim. Further, there is no mandate either constitutionally or by Rule 23 that requires everyone who may potentially have a claim must be served with notice until such time as they are defined as a class member.

If a class action involves monetary claims, as well as claims based upon declaratory, equitable, or legal relief to be resolved as a matter of law, there are circumstances where the burden of identification and notice is properly shifted upon defendants.   Meadows v. Ford Motor Co., 62 F.R.D. 98 (W.D. Ky 1974), judgment modified on other grounds, 510 F.2d 939 (6th Cir. 1975), cert. denied, 425 U.S. 998 (1976). involved this concept of burden shifting. Therein, the court granted a motion for summary judgment on the issue of liability before class certification. The issues of damages and attorneys fees remained to be resolved. Because plaintiffs had demonstrated some success on the merits, the court ordered defendants to bear the cost of notice.


The rules as drafted in South Carolina provide broad guidelines with which class action litigation may be managed. Creative and innovative procedures to facilitate the fair and expeditious resolution of complex cases may be utilized under the rules. Although there presently is a paucity of law further developing the fine points of law pertinent to class actions, further developments in case law may be expected to demonstrate a progressive and flexible use of such litigation.

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