This case involves a class action lawsuit filed in 2020 against Google LLC, alleging the company improperly collected and used data from users of the Chrome browser's Incognito mode. The district court certified a class for injunctive relief but denied certification for a damages class, finding that individual questions predominated. While the named plaintiffs appealed the denial of the damages class, the Ninth Circuit denied the request for interlocutory review. On the eve of trial, the named plaintiffs and Google reached a settlement: Google would update its policies, the named plaintiffs would arbitrate individual damages, and the named plaintiffs agreed not to appeal the denial of the damages class. Three months later, a group of 185 Chrome users, known as the Salcido plaintiffs, moved to intervene in the case. Their goal was to preserve the appellate rights of absent class members seeking damages, arguing that the settlement was unfair and that the named plaintiffs were no longer adequately representing their interests. The district court denied the motion as untimely, prompting the Salcido plaintiffs to appeal to the Ninth Circuit.
Judge Lee, writing for the panel, affirmed the district court's denial based on the three-factor test for timeliness under Rule 24: the stage of the proceeding, prejudice to existing parties, and the reason for and length of the delay. The court rejected the Salcido plaintiffs' argument that a special bright-line rule applies when intervenors seek to appeal a class certification denial. Instead, the court held that the traditional three-part test applies even when the intervenors seek to enter the case solely for the purpose of appealing a certification denial before final judgment. Regarding prejudice, the court found that allowing intervention at this late stage would likely void the settlement agreement. The settlement was a delicate balance reached after protracted negotiations, and the intervenors' attempt to appeal the damages class denial would effectively remove a critical term—the waiver of appeal rights—forcing Google and the named plaintiffs to restart litigation. The court noted that the Salcido plaintiffs had been on notice of their lack of representation since the district court denied the damages class in December 2022, yet they waited until July 2024 to move to intervene. The three-month delay after learning of the settlement was unjustified, and the stage of the proceedings, being on the eve of final settlement approval, disfavored intervention. The court distinguished prior cases like United Airlines v. McDonald, noting that those cases involved final judgments, whereas here, no final judgment existed, and the intervenors' strategy would disrupt the settlement without a clear procedural path to appeal the damages denial independently.
The decision confirms that absent class members must act promptly to intervene when they realize their interests are not being adequately represented, particularly after a denial of class certification. It prevents late-stage intervenors from derailing settlements by attempting to revive damages claims after the named plaintiffs have settled and waived their appeal rights. The case is remanded to the district court with instructions to maintain the denial of the intervention motion. The Salcido plaintiffs cannot intervene to appeal the denial of the damages class certification, leaving the settlement in place and the damages class denial final.
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