For years, South Carolina class action practitioners have repeated a familiar refrain: unlike the federal courts, South Carolina has no "predominance" requirement. In Calvin Henson v. South Carolina Department of Corrections, Op. No. 28343 (S.C. July 22, 2026), the South Carolina Supreme Court told the bench and bar that the refrain was never quite right. Writing one of his final decisions before his retirement from service as a most highly distinguished Justice of our Supreme Court and, before that, as Chief Judge of the South Carolina Court of Appeals, Justice John C. Few penned that our Rule 23(a) has always contained—and continues to contain—a predominance requirement, even though the language of our Rule is not identical to its federal counterpart.

The case arose from a proposed class action on behalf of all inmates sexually assaulted while in the custody of the South Carolina Department of Corrections or the Department of Juvenile Justice from 2012 to the present—a class the circuit court found could include as many as 1,768 potential members.

After finding for the first time that circuit court class action rulings are never directly appealable but accepting this common law petition for a writ of certiorari, the unanimous Court insisted it is not changing the law at all but is simply describing what Rule 23(a) has required for the last 41 years. Nonetheless, as a practical matter, the clarification will now require every state-court putative class action to analyze predominance to determine if the efficiency goals of Rule 23 would be served by certifying a proposed class.

When South Carolina adopted Rule 23(a) in 1985, the drafters borrowed the language of Federal Rule 23(a) but omitted the Federal Rule 23(b)(3) requirement that common questions "predominate over any questions affecting only individual members." But the state version of Rule 23 says nothing express about predominance. From that silence, many practitioners inferred (and class action plaintiffs’ counsel invariably insisted) that South Carolina had deliberately chosen a more permissive path than the federal system.

In Henson, however, the Court explained that, far from expanding the availability of class actions, the omission of the Federal Rule 23(b) and (c) language was intended to restrict it. The Court relied in part on the late Dean Harry Lightsey and Professor Emeritus James Flanagan—the original reporters for our Rules of Civil Procedure—who wrote that the drafters "specifically rejected the most expansive use of the class action" and omitted the federal categories "in part, to avoid adopting by implication the broad federal precedent then-existing." As Lightsey and Flanagan put it, the requirement "that the common questions predominate over individual issues . . . is inherent in the general conditions for class actions."

Building on that history, the Court held that "it is not possible to achieve the efficiencies the class action procedure was designed to bring to litigation without a qualitative analysis of commonality and some form of a predominance requirement." It therefore "embrace[d] the 'inherent' requirement of predominance from Lightsey and Flanagan," while emphasizing that it "change[s] nothing in our law."

The conceptual key to the decision is that predominance is not grafted onto Rule 23(a) from the outside—it is drawn out from within the commonality requirement the Rule already contains. The Court explained that the mere existence of one or more common questions does not suffice to demonstrate commonality under Rule 23(a)(2), SCRCP. Drawing on the seminal decision in Gardner v. South Carolina Department of Revenue, the Court reaffirmed that commonality requires "a determinative critical issue [that] overshadows all other issues" and that a class plaintiff "must articulate the existence of significant common, legal, or factual issues which bind the proposed class together." The Court read Gardner, Hensley, and McGann v. Mungo as consistently recognizing "a qualitative component to the analysis of commonality."

That qualitative standard, the Court held, is "substantively indistinguishable" from the federal predominance inquiry, even though Federal Rule 23(b)(3) includes a specific predominance requirement. The federal predominance test asks "whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues," Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016)—which the Court found materially the same as Gardner's demand for a "determinative issue" that binds the class together. Likewise, the commonality standard the Court embraced echoes Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011): what matters is "the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation."

The Court reaffirmed what "our Rule 23(a) standard has always required": a class plaintiff must demonstrate that questions common to all class members are "of such a critical degree of importance to the overall resolution of the litigation that the class-wide answers to those common questions are determinative, and thus overshadow the necessity of trying any individualized questions." That analysis demands the "rigorous analysis" required by Dukes, Tyson Foods, and our own decisions in Gardner and Waller.

One prior decision could not survive this clarification. The Court overruled Littlefield v. S.C. Forestry Commission, 337 S.C. 348 (1999), to the extent it held that by omitting the additional federal requirements, Rule 23, SCRCP "endorses a more expansive view of class action availability than its federal counterpart." That reading was the direct opposite of the inherent-predominance theory, and it is now overruled to that extent.

The practical message of Henson is that a class should not now be certified simply because a common question exists. To certify a class in this state, a plaintiff must show that the common questions are determinative and predominate over the individualized ones, and courts must scrutinize how the case would actually be tried before certifying.

In Henson itself, that scrutiny proved fatal to certification: the Court concluded that trying the inmates' claims as a class would require individualized findings on class membership, negligence, proximate cause, and damages for at least 1,768 potential members, overwhelming any common question. The Court reversed the certification order and remanded for the individual claims of the four named plaintiffs.

For a decision that "change[s] nothing," Henson clears up a great deal. It confirms that South Carolina has always had a predominance requirement, retires the notion that our Rule is more permissive than the federal version, and gives trial courts a clearer and more qualitative standard to apply going forward.