# Brown v. Salcido

> Court of Appeals for the Ninth Circuit · April 20, 2026

URL: https://www.frixlaw.com/law-library/cases/11312887

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** April 20, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11312887

## How later opinions describe it (automated extraction)

- explaining that the respondents did not litigate their individual claims to final judgment “on the merits”
- explaining that unnamed class members are not parties to the class action before the class is certified

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11312887. Public record. Not legal advice.