NEI Contracting and Engineering, Inc. v. Hanson Aggregates Pacific Southwest, Inc., No. 16-56498 (9th Cir. 2019)
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A class must be decertified when the class representatives are found to lack standing as to their individual claims. The Ninth Circuit affirmed the district court's order decertifying a class of persons alleging that Hanson violated California Penal Code 632, which prohibits the unauthorized connection to or recording of confidential communications.
The panel held that NEI, as the class representative, lacked standing to bring its claim against Hanson. Furthermore, because NEI failed to challenge the district court's standing determination, it waived its right to challenge that determination. Finally, neither mootness exception raised by NEI stands for the proposition that a class can be certified if the class representative lacked standing as to its individual claim.
Court Description: Class Certification / Standing. The panel affirmed the district court’s order decertifying a class of persons where the class representative lacked standing as to its individual claim. The district court decertified a plaintiff class of cellular phone users whose calls were recorded purportedly without their consent by defendant on the ground that the class did not satisfy Fed. R. Civ. P. 23(b)(3)’s predominance requirement. Subsequently, the district court held that the lead plaintiff lacked standing to bring its California Invasion of Privacy Act claim against defendant. The panel held that this case presented a threshold standing issue. The panel held that a class must be decertified when the class representatives are found to lack standing as to their individual claims. Furthermore, by failing to challenge the district court’s standing determination, plaintiff had waived its right to challenge that determination. The panel further held that neither mootness exception raised by plaintiff stood for the proposition that a class could be certified if the class representative lacked standing as to its individual claim. NEI V. HANSON AGGREGATES 3
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