Brown v. Salcido

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHASOM BROWN; MARIA No. 24-5692

NGUYEN; WILLIAM BYATT,

D.C. No.

4:20-cv-03664-

Plaintiffs - Appellees,

YGR

v.

GOOGLE LLC, a Delaware OPINION

company,

Defendant - Appellee,

v.

ADAM SALCIDO,

Movant - Appellant.

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted September 19, 2025

Pasadena, California

Filed April 20, 2026

2 BROWN V. SALCIDO

Before: Richard R. Clifton, Jay S. Bybee, and Kenneth K.

Lee, Circuit Judges.

Opinion by Judge Lee

SUMMARY *

Intervention

The panel affirmed the district court’s denial, as

untimely, of a motion under Federal Rule of Civil Procedure

24 to intervene in a class action against Google LLC.

Plaintiffs alleged that Google improperly collected and

misused data of Incognito mode users of the Google Chrome

browser. The district court certified an injunctive relief class

but denied a damages class. On the eve of a class trial on the

injunctive claims, the parties agreed to settle: Google would

change some policies, the named plaintiffs would arbitrate

their individual damages, and the class certification denial of

damages would not be appealed. Three months later, a

group of 185 Google Chrome users (the Salcido plaintiffs)

moved to intervene to preserve the “appellate rights” of

absent class members seeking class damages.

The panel held that the timeliness for an intervention

motion is generally governed by three factors: (1) the stage

of the proceeding at which an applicant seeks to intervene;

(2) the prejudice to other parties; and (3) the reason for and

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BROWN V. SALCIDO 3

length of the delay. The panel held that this test applied to

the Salcido plaintiffs’ motion even though they sought to

enter the case for the sole purpose of appealing the class

certification denial and the time for the named plaintiffs to

appeal had not expired.

Applying the three-part test, and assessing prejudice

from the time that certification of a damages class was

denied, the panel held that the district court did not abuse its

discretion in finding that the prejudice factor weighed

against intervention because Google and the named

plaintiffs would likely have to start from scratch and nix the

settlement deal if the Salcido plaintiffs intervened and

sought damages. The panel held that the length and lack of

reason for the delay cut against the Salcido

plaintiffs. Finally, the district court did not abuse its

discretion in finding that the “stage of the proceedings”

factor disfavored intervention.

COUNSEL

David Boies (argued), Boies Schiller Flexner LLP, Armonk,

New York; Mark C. Mao, Sean Rodriguez, and Beko O.

Reblitz-Richardson, Boies Schiller Flexner LLP, San

Francisco, California; Alison L. Anderson, Boies Schiller

Flexner LLP, Los Angeles, California; James Lee and

Rossana Baeza, Boies Schiller Flexner LLP, Miami, Florida;

John A. Yanchunis and Ryan J. McGee, Morgan & Morgan

Complex Litigation Group, Tampa, Florida; Amanda K.

Bonn, Susman Godfrey LLP, Los Angeles, California; Amy

Gregory, William C. Carmody, and Steven M. Shepard,

Susman Godfrey LLP, New York, New York; Jenna G.

4 BROWN V. SALCIDO

Farleigh, Susman Godfrey LLP, Seattle, Washington; Jean

Sutton Martin, Law Office of Jean Sutton Martin PLLC,

Wilmington, North Carolina; Samuel Issacharof, Samuel

Issacharof, New York, New York; for Plaintiffs-Appellees.

Stephen A. Broome (argued), Viola Trebicka, Rachael L.

McCracken, and Alyssa Olson, Quinn Emanuel Urquhart &

Sullivan LLP, Los Angeles, California; Joseph H.

Margolies, Andrew H. Schapiro, and Teuta Fani, Quinn

Emanuel Urquhart & Sullivan LLP, Chicago, Illinois; Diane

Doolittle, Quinn Emanuel Urquhart & Sullivan LLP,

Redwood Shores, California; Christopher G. Michel, Quinn

Emanuel Urquhart & Sullivan LLP, Washington, D.C.; Aarti

G. Reddy, Cooley LLP, San Francisco, California; for

Defendant-Appellee.

Russell C. Handy (argued) and Barry M. Walker, Potter

Handy LLP, San Francisco, California, Movant-Appellant.

David A. Straite, DiCello Levitt LLP, New York, New York;

Amy E. Keller, DiCello Levitt LLP, Chicago, Illinois;

Lesley E. Weaver, Bleichmar Fonti & Auld LLP, Oakland,

California; Jason Barnes, Simmons Hanly Conroy LLP,

New York, New York; for Amici Curiae Calhoun Plaintiffs.

BROWN V. SALCIDO 5

OPINION

LEE, Circuit Judge:

This case presents an example of “too little, too late” for

would-be class action intervenors. In June 2020, several

plaintiffs filed a putative class action lawsuit against Google,

alleging that it improperly collected and misused data of

Incognito mode users of the Google Chrome browser. The

district court certified an injunctive relief class but denied a

damages class. On the eve of a class trial on the injunctive

claims, the parties agreed to settle: Google would change

some policies, the named plaintiffs would arbitrate their

individual damages, and the class certification denial of

damages would not be appealed. Three months later, a group

of 185 Google Chrome users (the Salcido plaintiffs) moved

to intervene to preserve the “appellate rights” of absent class

members seeking class damages.

We hold that the district court did not abuse its discretion

in finding the intervention motion untimely. The Salcido

plaintiffs claim that they want to intervene to appeal the

denial of a damages class and insist that they will not derail

the injunctive relief settlement. But they have offered no

reason to believe that such an outcome is likely or even

possible. If the Salcido plaintiffs intervene, they will likely

unravel the settlement agreement at the midnight hour and

thus prejudice the named plaintiffs and Google. And they

have not offered any justification for their delay in seeking

intervention until just before the final class settlement

approval hearing. We thus affirm the denial of the motion to

intervene.

6 BROWN V. SALCIDO

BACKGROUND

A. Incognito users sue Google for secretly collecting

and using their data.

Millions of users rely on Google’s Chrome browser to

surf the internet. Chrome offers a “private” browsing mode

called “Incognito.” Google promised its Incognito users that

they could control what data Google collected when using

Incognito mode and made multiple privacy-related

representations such as “Chrome won’t store certain

information.” In reality, Google collected, stored, and used

its users’ data for years.

In June 2020, five plaintiffs filed a putative class action

lawsuit to represent Incognito users whose private browsing

data Google had allegedly improperly collected and used.

They sought to certify classes under both Rule 23(b)(2) for

injunctive relief and Rule 23(b)(3) for damages.

B. The court certifies an injunctive class but denies

a damages class.

After two and a half years of discovery, the district court

in December 2022 certified a class under Rule 23(b)(2) for

class-wide injunctive relief. But it declined to certify a

damages class under Rule 23(b)(3), finding that the named

plaintiffs failed to show that common questions of law or

fact “predominate over any questions affecting only

individual members.” The named plaintiffs petitioned our

court for interlocutory review of the denial of class

certification under Rule 23(f), but we denied the

discretionary appeal in March 2023.

BROWN V. SALCIDO 7

C. Class representatives settle and waive their right

to appeal the denial of certification of the damages

class.

The named plaintiffs moved forward, seeking injunctive

relief for the certified class and individual monetary

damages. The district court denied Google’s motion for

summary judgment, and trial was set for February 2024.

Several weeks before trial, the parties reached a settlement

in principle. Then, on April 1, 2024, the named plaintiffs

moved for approval of the class settlement. The settlement

resolved the certified class’s injunctive relief claim: Google

promised to make changes to its policies, including

clarifying how data is used in its disclosures and remediating

certain data it retained. The five class representatives could

seek damages for themselves in arbitration, but they waived

their rights to appeal the denial of the Rule 23(b)(3) damages

class.

The settlement agreement, however, contained a

provision that none of the absent class members would

release damages claims or waive any right to appeal the

denial of the damages class. The agreement also referenced

an earlier tolling agreement for the named plaintiffs’ claims.

D. The Salcido plaintiffs move to intervene in this

case.

The Salcido plaintiffs moved to intervene on July 2,

2024, one month before the final settlement approval

hearing. They wanted to intervene to (1) appeal the district

court’s refusal to certify the damages class, (2) access

discovery, and (3) gain a copy of the tolling agreement

between Google and the named plaintiffs. Most importantly,

they argued that the settlement was unfair to the absent class

8 BROWN V. SALCIDO

members and sought to preserve the absent class members’

“appellate rights.”

In a short four-page order, the district court denied their

motion, finding it (among other defects) untimely. The court

noted that the motion was filed “well over a year since the

Court denied certification of a damages class in this case.”

And even crediting Salcido plaintiffs’ assertion that it was

unaware of the appellate waiver in the settlement agreement

until April 2024, the district court found that they “failed to

explain the three-month delay in moving to intervene.”

Finally, the district court found that an intervention would

prejudice the parties as it would cause “delay” and “could

very well derail” the proposed settlement.

E. The Salcido plaintiffs face roadblocks in state

court.

Days after the named plaintiffs filed the settlement

agreement with the district court, the Salcido plaintiffs filed

complaints in California state court, seeking individual

damages for Google’s collection of their private browsing

data.

The California Superior Court granted Google’s

demurrer with leave to amend, finding that a portion of the

Salcido plaintiffs’ damages claims were time-barred.

Salcido, et al. v. Google LLC, Docket No. 24CV434093,

Order Sustaining in Part and Overruling in Part Defendant’s

Demurrer, *15 (Santa Clara Superior Court of California,

May 1, 2025) (finding alleged California Invasion of Privacy

Act (CIPA) violations barred by the statute of limitations).

The state trial court gave the Salcido plaintiffs ten days to

amend their complaint, but according to the state court

docket, they did not file an amended complaint.

BROWN V. SALCIDO 9

STANDARD OF REVIEW

We review de novo a district court’s denial of

a motion to intervene as a matter of right, except for a denial

based on timeliness, which is reviewed for abuse of

discretion. Kalbers v. U.S. Dep’t of Just., 22 F.4th 816, 822

(9th Cir. 2021) (citing Smith v. L.A. Unified Sch. Dist., 830

F.3d 843, 853 (9th Cir. 2016)). “‘A court abuses its

discretion if it fails to apply the correct legal rule or standard’

or if its ‘application of that rule was (1) illogical,

(2) implausible, or (3) without support in inferences that

may be drawn from the facts in the record.’” Id. (quoting

Smith, 830 F.3d at 853–54).

DISCUSSION

We affirm the district court’s denial of the Salcido

plaintiffs’ motion to intervene because the motion was

untimely under our traditional three-part test for assessing

Rule 24 intervention motions.

I. The district court did not abuse its discretion in

determining that the Salcido plaintiffs’ motion to

intervene was untimely.

Federal Rule of Civil Procedure 24 provides for

intervention both as of right and permissively. FED. R. CIV.

P. 24. Intervention as of right is warranted when the movant

“claims an interest relating to the property or transaction that

is the subject of the action, and is so situated that disposing

of the action may as a practical matter impair or impede the

movant’s ability to protect its interest, unless existing parties

adequately represent that interest.” Id. 24(a)(2). But we must

first determine whether the Salcido plaintiffs’ motion was

timely. League of United Latin Am. Citizens v. Wilson, 131

F.3d 1297, 1302 (9th Cir. 1997).

10 BROWN V. SALCIDO

A. We determine the timeliness of a motion to

intervene using a three-part test.

In our circuit, timeliness for an intervention motion is

generally governed by three factors: “(1) the stage of the

proceeding at which an applicant seeks to intervene; (2) the

prejudice to other parties; and (3) the reason for and length

of the delay.” Kalbers, 22 F.4th at 822 (citation omitted).

“We assess each of these factors by reference to the

‘crucial date’ when ‘proposed intervenors should have been

aware that their interests would not be adequately protected

by the existing parties.’” Id. (citation omitted). We also must

keep in mind the policies underlying intervention: Premature

intervention “unnecessarily squanders scarce judicial

resources and increases litigation costs” while liberally

permitted intervention “serves both efficient resolution of

issues and broadened access to the courts.” Id. at 823

(cleaned up). The timeliness requirement seeks to “prevent a

tardy intervenor from derailing a lawsuit within sight of the

terminal.” Id. (citation omitted).

The Salcido plaintiffs contend that our circuit’s three-

part timeliness test does not apply to their motion. According

to them, the timeliness inquiry collapses into a bright-line

rule if intervenors seek to enter the case for the sole purpose

of appealing a class certification denial: An intervention

motion is timely if it was filed within the time that the named

plaintiffs could have appealed the final judgment. And

because the time for the named plaintiffs to appeal has not

expired—indeed, it has not even begun—they claim that

their intervention motion is timely. In support of this

argument, they rely on snippets of language from State of

Alaska v. Suburban Propane Gas Corp. in which we

explained that for “the limited purpose of intervention to

BROWN V. SALCIDO 11

appeal from denial of class certification, the Supreme Court

has held that the proper stage of the proceedings to intervene

is after final judgment.” 123 F.3d 1317, 1320 (9th Cir. 1997)

(citing United Airlines v. McDonald, 432 U.S. 385, 394–95

(1977)) (emphasis added).

But an opinion is not like a statute, and we do not read

its words divorced from the facts of the case. See Upper

Skagit Indian Tribe v. Sauk-Suiattle Indian Tribe, 66 F.4th

766, 770 (9th Cir. 2023) (“[A] court reads the language of [a

judicial] decision in the context of the decision as a whole

and the entire record.”). Both Suburban Propane and United

Airlines involved intervention motions that were filed after

final judgment had been entered; the intervention motions

were treated as timely because they were filed within the

thirty-day notice of appeal period after final judgment. 123

F.3d at 1320; 432 U.S. at 396; see FED. R. APP. P. 4(a). In

contrast, there is no final judgment here—the Salcido

plaintiffs seek to intervene before final judgment. Suburban

Propane and United Airlines did not create a special

intervention rule for class actions; they merely reflected the

practical reality that if someone seeks to intervene after final

judgment to appeal a class certification denial, that party

must do so within the time period to appeal the final

judgment. We will thus apply our traditional three-part test

for intervention motions here.

B. The district court did not abuse its discretion in

finding the intervention motion untimely under

our circuit’s three-part test.

We will now address each factor under our three-part test

for deciding Rule 24 intervention motions. Kalbers, 22 F.4th

at 822.

12 BROWN V. SALCIDO

a. The district court did not abuse its discretion

in finding that the prejudice factor weighs

against intervention.

We start with the most important factor in assessing

timeliness: Whether the Salcido plaintiffs’ delay in moving

to intervene prejudiced Google and the named plaintiffs. The

relevant prejudice “flows from a prospective intervenor’s

failure to intervene after he knew, or reasonably should have

known, that his interests were not being adequately

represented—and not from the fact that including another

party in the case might make resolution more difficult.”

Smith, 830 F.3d at 857 (cleaned up).

The Salcido plaintiffs argue that there was no prejudice

because they moved to intervene in July 2024—within three

months of learning about the proposed settlement in April

2024. During that three-month delay, they argue that the

action was at a standstill, as the parties were merely awaiting

the district court’s approval of the final settlement. In

making this argument, the Salcido plaintiffs assume that we

should assess prejudice from the date that the parties

announced their proposed settlement in April 2024. They

contend that the disclosure of the appellate waiver in the

settlement agreement was the first time that they knew (or

reasonably should have known) that their interests were not

being adequately represented by the named plaintiffs.

But the Salcido plaintiffs’ central reason for seeking

intervention is to pursue damages. It would therefore not be

an abuse of discretion to look at prejudice from the time that

the district court denied certification of a damages class in

December 2022 (or from perhaps March 2023 when our

court rejected the Rule 23(f) request seeking interlocutory

appeal of the damages class certification denial). Because

BROWN V. SALCIDO 13

the named plaintiffs could no longer seek class damages at

that point, the Salcido plaintiffs “reasonably should have

known” that their “interests [in class damages] were not

being adequately represented” by the named plaintiffs. Id. at

857. Indeed, we have said that a party is put on notice when

its “interests might be adversely affected by the outcome of

the litigation.” United States v. State of Oregon, 913 F.2d

576, 589 (9th Cir. 1990) (quoting United States v. City of

Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989)) (emphasis

added). Named plaintiffs generally do not owe any legal

duties to unnamed class members before class certification

or after denial of class certification. 1 Cf. Moser v. Benefytt,

Inc., 8 F.4th 872, 877 (9th Cir. 2021) (citing Smith v. Bayer

Corp., 564 U.S. 299, 313 (2011) (explaining that unnamed

class members are not parties to the class action before the

class is certified)). And despite being put on notice in

December 2022 that the named plaintiffs lost their bid to

represent unnamed class members seeking damages, the

Salcido plaintiffs did nothing until July 2024, when they

finally moved to intervene.

1

To be sure, if named plaintiffs seek the court’s approval for a class

settlement—even before class certification or after a denial of

certification (like in this case)— courts must determine that such a

settlement is fair, reasonable, and adequate under Rule 23(e)(2). Here, as

counsel for the Salcido plaintiffs conceded at oral argument, they could

have objected to the proposed settlement as unfair to the unnamed class

members. But the Salcido plaintiffs’ counsel chose not to object and

instead opted to intervene to try to represent a damages class. The district

court hinted at the rationale behind this decision when it said that it

would not let “intervenors freeload off of class counsel’s years of hard

work”: Lawyers who merely object to a class settlement are less likely

to reap large attorneys’ fees than those who intervene to represent a class

and seek fees based on a percentage of the class settlement fund.

14 BROWN V. SALCIDO

Now, the Salcido plaintiffs effectively want to unravel

the settlement agreement that had been negotiated between

Google and the named plaintiffs. This is not a case of merely

“prolong[ing] the litigation” or “mak[ing] resolution more

difficult”—it is a case of upending the resolution. Smith, 830

F.3d at 857 (citation and internal quotation marks omitted).

We rejected a similar gambit by would-be intervenors in

Orange Cnty. v. Air California, 799 F.2d 535 (9th Cir. 1986).

In that case, Orange County argued that permitting the City

of Irvine to intervene after five years of litigation and

publicized settlement negotiations would jeopardize the

settlement and prejudice the parties involved. Id. at 538. We

agreed with the district court’s finding that “the possibility

of this settlement unraveling is so prejudicial that to allow

the City of Irvine to intervene at this late date would be

tantamount to disaster,” and affirmed the district court’s

denial of the City of Irvine’s motion to intervene. Id.

True, the Salcido plaintiffs insisted at oral argument that

they do not intend to derail the injunctive relief settlement.

Oral Argument Video at 4:03, 8:50, Brown, et al. v. Salcido,

et al., No. 24-5692 (9th Cir. argued Sept. 19, 2025),

https://www.ca9.uscourts.gov/media/video/?20250919/24-

5692/ (in response to questions about their strategy for

appeal, counsel for the Salcido plaintiffs confirmed that

“we’re not seeking to unravel the settlement” and “our

preference would be for the settlement to go forward as

planned”). That may be their preference, but they have been

vague and coy about how exactly they could appeal the

district court’s denial of a Rule 23(b)(3) damages class while

still maintaining the injunctive relief settlement.

They may be reticent about their next steps because there

is likely no practical or procedural way to appeal the

damages class certification denial without undoing the

BROWN V. SALCIDO 15

injunctive relief settlement. The proposed settlement

provides that class plaintiffs waive their right to appeal the

denial of class certification. On appeal, the Salcido plaintiffs

make clear that they seek to appeal the denial of class

certification as to damages. It follows that granting the

motion to intervene would effectively remove a critical term

from the settlement, sending the parties back to the

negotiating table. Despite the insistence of the Salcido

plaintiffs’ counsel at oral argument that they do not desire

this outcome, counsel conceded that nothing in the record

could tell the court whether the settlement would have been

finalized without that particular term.

Even assuming the parties could craft a new settlement

agreement that maintains the injunctive relief settlement but

allows the appeal of the damages class denial, it is not clear

as a procedural matter if the Salcido plaintiffs could thread

that needle. The plaintiffs already tried to seek an

interlocutory appeal of the denial of damages class

certification under Rule 23(f)—and our court refused to

grant it. At this point, they need a final judgment to appeal

the denial of a damages class certification. See Microsoft

Corp. v. Baker, 582 U.S. 23, 27 (2017) (holding that a party

cannot voluntarily dismiss its individual claims in a bid to

appeal the denial of class certification because there is no

final judgment for purposes of 28 U.S.C. § 1291). But there

is no final judgment here.

The Salcido plaintiffs respond that the Supreme Court’s

decision in United Airlines allows absent class members to

intervene to pursue the appeal of a denial of a class

certification motion. In United Airlines, the Court dealt with

a somewhat similar factual scenario as that before us: The

named plaintiffs moved for class certification, which was

denied, and the court of appeals declined to accept the

16 BROWN V. SALCIDO

interlocutory appeal of that certification order. 432 U.S. at

387–88. The named plaintiffs and the defendant agreed to a

mediated individual settlement, and the district court

approved it, entering a final judgment of dismissal. Id. at

389. A putative class member then tried to intervene to

appeal the denial of class certification after final judgment.

Id. at 390. The United Airlines Court held that a putative

class member may intervene to appeal the denial of class

certification after the named plaintiffs’ claims have been

resolved and judgment has been entered. Id. at 393–94.

But there is a crucial factual distinction between United

Airlines and Microsoft that explains the seemingly divergent

analysis. The class representatives in United Airlines

litigated the merits of their individual claims to final

judgment (and thus the intervenors could appeal the class

certification denial), while the named plaintiffs in Microsoft

did not (and thus could not appeal the denial of certification).

Compare United Airlines, 432 U.S. at 394 (“the entry of final

judgment made the adverse class determination

appealable”); id. at 393 n.14 (explaining how the district

court ruled on the merits of the claim and “all that remained

to be determined was the computation of backpay”) with

Microsoft, 582 U.S. at 27 (explaining that the respondents

did not litigate their individual claims to final judgment “on

the merits”).

In sum, after Microsoft, plaintiffs seeking to appeal a

denial of class certification must either (1) have a final

judgment on the merits or (2) succeed in their Rule 23(f)

petition for interlocutory appeal. But neither option appears

to be on the table right now for the Salcido plaintiffs.

Google and the named plaintiffs will likely have to start

from scratch and nix the settlement deal if the Salcido

BROWN V. SALCIDO 17

plaintiffs intervene and seek class damages. That is enough

to show prejudice to Google and the named plaintiffs. See

Smith, 830 F.3d at 857 (citing Air California for the

proposition that prejudice exists if intervention “would

threaten the delicate balance reached by existing parties after

protracted negotiations”).

b. The length and lack of reason for the delay

cuts against the Salcido plaintiffs.

We next consider the Salcido plaintiffs’ delay in moving

to intervene and their justification (or lack of one) for the

delay. “Delay is measured from the date the proposed

intervenor should have been aware that its interests would

no longer be protected adequately by the parties, not the date

it learned of the litigation.” Kalbers, 22 F.4th at 823 (quoting

United States v. Washington, 86 F.3d 1499, 1503 (9th Cir.

1996)). “A party seeking to intervene must act as soon as he

‘knows or has reason to know that his interests might be

adversely affected by the outcome of the litigation.’” State

of Oregon, 913 F.2d at 589 (quoting City of Chicago, 870

F.2d at 1263).

Here, as explained earlier, the clock to intervene likely

began running when the district court denied a damages class

in December 2022. Even if we agreed with the Salcido

plaintiffs that the time to act was in April 2024 (when they

learned of the settlement agreement), it was still too little,

too late.

We held in Kalbers that we “have little trouble

concluding” that a “short delay” of “just a few weeks” (i.e.,

less than a month in that case) was timely. 22 F.4th at 825.

While the time elapsed is not determinative, the court must

weigh the “related circumstances” of the period of delay.

Smith, 830 F.3d at 856 (citation omitted). The Salcido

18 BROWN V. SALCIDO

plaintiffs waited (at the very least) three months before

moving to intervene and offered no reason for the delay to

the district court.

On appeal, the Salcido plaintiffs offer three reasons for

the delay. The purported reasons are: (1) the lack of notice

of the settlement agreement to the absent class members;

(2) the lack of an unredacted version of the settlement on the

public docket; and (3) their difficulty accessing the tolling

agreement.

None of these reasons justify the delay. First, the absent

class members had notice of the settlement agreement. The

Salcido plaintiffs’ counsel conceded at the hearing for their

motion to intervene that they knew of the settlement right

after it was filed. Second, the Salcido plaintiffs had access to

the settlement’s material contents. The settlement agreement

on the district court’s docket contained the waiver provision

putting the Salcido plaintiffs on notice that the named

plaintiffs would be waiving their right to appeal the denial of

class certification. Finally, despite their apparent difficulties

in obtaining the tolling agreement, there is no evidence that

the Salcido plaintiffs believed it applied to their claims. The

Salcido plaintiffs knew that they were not parties to the

agreement and did not argue that they believed it would also

apply to their claims. Even if the Salcido plaintiffs were

unsure of how their interests might be affected, the

appropriate time to move for intervention would have been

when they were on notice that their “interests might be

adversely affected by the outcome of the litigation’”—not

when they could be certain of harm. State of Oregon, 913

F.2d at 589 (quoting City of Chicago, 870 F.2d at 1263

(emphasis added)).

BROWN V. SALCIDO 19

The Salcido plaintiffs rely heavily on Smith, where our

court excused delays of 71 and 79 days. 830 F.3d at 859–

862. But there were extenuating circumstances in Smith—

the intervenors were “a consortium of parents of special

education students” who needed time to organize and

coordinate. Id. at 862. We thus warned that “a delay of 71 or

79 days might, under different circumstances, weigh against

timeliness.” Id. There are no such extenuating circumstances

here to excuse the delay. In sum, the district court did not

abuse its discretion in finding that the three-month delay was

unreasonable, especially given the lack of explanation for it.

c. The district court did not abuse its discretion

in finding that “stage of the proceedings”

factor disfavors the Salcido plaintiffs.

Finally, we turn to the “stage of the proceedings” factor.

We apply a “nuanced, pragmatic approach” to determine

whether the intervention occurred at an appropriate stage of

the case. Kalbers, 22 F. 4th at 826 (citation omitted). The

district court found that this factor weighed against

intervention because the “motion was filed on the eve of the

hearing for final approval of the class settlement, and well

over a year since the Court denied certification of a damages

class in this case.”

The Salcido plaintiffs respond that when the “major

reason” for moving to intervene is a “change of

circumstance” that “suggests that the litigation is entering a

new stage,” United States v. State of Oregon, 745 F.2d 550,

552 (9th Cir. 1984), we look at when the change of

circumstance occurred, “not the commencement of the

litigation,” Smith, 830 F.3d at 854. They claim that the

settlement marked a sharp change because the named

20 BROWN V. SALCIDO

plaintiffs waived their right to appeal the denial of class

certification for damages.

To be fair, the Salcido plaintiffs may have been

genuinely surprised by the named plaintiffs’ appellate

waiver provision in the proposed settlement. But that does

not necessarily mean the “change of circumstance” occurred

when the settlement terms were disclosed. As we explained

before, the Salcido plaintiffs should have been on high alert

that class damages were at risk. When the proposed

settlement revealed that the named plaintiffs had waived

their appellate rights, the Salcido plaintiffs ought to have

moved immediately to intervene, or objected to the proposed

settlement, rather than waiting three months before taking

any action. We thus hold that the district court did not err in

finding that the “stage of the proceeding” factor does not

favor intervention.

CONCLUSION

We AFFIRM the denial of the Salcido plaintiffs’ motion

to intervene.