Summary
The Ninth Circuit affirmed the district court’s denial of a motion to intervene in a class action against Google as untimely under Federal Rule of Civil Procedure 24. The court applied its traditional three-factor timeliness test and held that prejudice, the intervenors’ delay and lack of justification, and the advanced stage of the proceedings supported denial of intervention.
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Practice areas
Questions Presented
- Whether a motion to intervene under Federal Rule of Civil Procedure 24 is subject to the Ninth Circuit's traditional three-factor timeliness test when the proposed intervenors seek intervention before final judgment solely to appeal denial of damages-class certification.
- Whether the district court abused its discretion in finding the intervention motion untimely based on the stage of the proceedings, prejudice to the existing parties, and the reason for and length of the delay.
- Whether United Airlines v. McDonald creates a special bright-line rule making intervention timely whenever it is filed within the period in which named plaintiffs could appeal.
Holdings
- A motion to intervene filed before final judgment, including one seeking solely to appeal denial of class certification, is generally governed by the Ninth Circuit's traditional three-factor timeliness test: the stage of the proceeding, prejudice to other parties, and the reason for and length of the delay.
- The prejudice factor weighed against intervention because allowing the proposed intervenors to pursue damages-class appellate relief would likely unravel or require renegotiation of the existing settlement.
- The proposed intervenors' delay was unreasonable because they waited at least three months after learning of the settlement and offered no adequate justification for that delay.
- The stage-of-proceedings factor disfavored intervention because the motion was filed on the eve of final settlement approval and long after denial of the damages class.
- After Microsoft Corp. v. Baker, a party seeking to appeal denial of class certification must generally have a final judgment on the merits or obtain interlocutory review under Rule 23(f); neither condition existed for the proposed intervenors.
Key quotations
“We hold that the district court did not abuse its discretion in finding the intervention motion untimely.” (5)
“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.”” (10)
“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.” (11)
“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.” (17)
“We thus hold that the district court did not err in finding that the “stage of the proceeding” factor does not favor intervention.” (20)
Factual background
The underlying class action alleged that Google improperly collected, stored, and used data from users of Chrome's Incognito browsing mode. The district court certified an injunctive-relief class under Rule 23(b)(2) but denied certification of a damages class under Rule 23(b)(3), and the Ninth Circuit denied interlocutory review under Rule 23(f). The named plaintiffs and Google later agreed to settle the injunctive claims, with the named plaintiffs waiving their right to appeal the damages-class denial while absent class members retained their damages claims and appellate rights. Three months after learning of the proposed settlement, Salcido and 184 other users moved to intervene shortly before the final settlement-approval hearing.
Procedural history
The district court certified an injunctive-relief class but denied certification of a damages class. After the named plaintiffs and Google negotiated a settlement, Adam Salcido and 184 other Chrome users moved to intervene to appeal the damages-class certification denial, access discovery, and obtain a tolling agreement. The district court denied intervention as untimely and prejudicial, and the Ninth Circuit affirmed.