Reported / Citable
Background
In June 2020, three Google Chrome users filed a putative class action in the Northern District of California alleging that Google improperly collected and used data from users who browsed in Chrome’s Incognito (private) mode. After several years of litigation, the district court certified an injunctive relief class but refused to certify a separate damages class.
On the eve of a class trial on the injunctive claims, the parties announced a settlement. Under the deal, Google would change some of its data-collection policies, the named plaintiffs would arbitrate their individual damages claims, and the parties agreed not to appeal the district court’s denial of a damages class.
Three months after the settlement announcement, a group of 185 Chrome users — called the Salcido plaintiffs — moved to intervene under Federal Rule of Civil Procedure 24. They said they were not trying to undo the injunctive settlement, but only to preserve appellate rights for absent class members so they could challenge the damages-class denial. The district court denied the motion as untimely. The Salcido plaintiffs appealed.
The Court’s Holding
The Ninth Circuit affirmed. The panel held that the district court did not abuse its discretion in finding the intervention motion untimely under the standard three-factor Rule 24 test: (1) the stage of the proceedings, (2) the prejudice to existing parties, and (3) the reason for and length of the delay.
On the prejudice factor, the court rejected the Salcido plaintiffs’ assurance that they would not disturb the injunctive settlement. The panel reasoned that if intervention were granted to pursue damages class certification, Google and the named plaintiffs would, as a practical matter, have to renegotiate or abandon the settlement they had carefully constructed. That kind of disruption to a fully bargained-for resolution is a serious form of prejudice that weighs heavily against intervention.
On the reason for delay, the court emphasized that the Salcido plaintiffs waited months after the damages-class denial — and three months after the settlement — to act. They offered no compelling reason for that delay. The panel measured prejudice from the time the damages class was denied, not from the announcement of settlement, which made the delay even more difficult to justify.
On the stage of the proceedings, the case had advanced to the brink of trial and then to a comprehensive settlement. Allowing intervention at that point would have unsettled both. The court held that the three-factor framework applied even though, technically, the named plaintiffs’ time to appeal had not yet expired. Intervention to capture another party’s appellate rights does not bypass the ordinary timeliness analysis.
Key Takeaways
- Absent class members who want to step in to appeal a class certification ruling cannot wait until a settlement is on the table. The clock for Rule 24 timeliness starts running when the damaging order issues, not when settlement disrupts their plans.
- Promises that an intervenor will not disturb a settlement are evaluated against likely real-world consequences. If intervention would functionally upend the deal, prejudice will weigh against allowing it.
- The three-factor Rule 24 timeliness analysis applies even when an intervenor seeks to enter the case purely to file an appeal that the named parties have agreed not to take.
- Plaintiffs’ counsel who want to preserve appellate options for absent class members should move to intervene early — ideally soon after a class certification denial — rather than waiting to see how the underlying case is resolved.
Why It Matters
Class actions in the Northern District of California — especially against Bay Area technology companies like Google, Meta, and Apple — are a defining feature of California consumer-protection and privacy litigation. Settlements that combine injunctive relief with carve-outs for damages class denials are common, and they often reflect hard-won compromises between named plaintiffs and well-resourced defendants.
This decision strengthens the finality of those deals. Defendants and plaintiffs’ counsel can negotiate with greater confidence that absent class members will not be able to disrupt the case at the eleventh hour to revive damages theories the parties have left behind. At the same time, the opinion is a warning shot to plaintiffs’ counsel representing absent class members in privacy and consumer-protection cases: act quickly. Wait too long after an adverse class certification ruling, and your appellate options may be foreclosed even before the named parties’ deadline runs.
Beyond California, the decision contributes to a developing body of Ninth Circuit law on the rights of absent class members and the procedural mechanics of class-action endgames. It will be cited in privacy, antitrust, and consumer-protection class actions across the circuit.