Tuesday, April 21, 2026
Page 3
Ninth Circuit:
Proposed Intervenors ‘Too Late’ in Case Over Incognito Mode
Opinion Says Trial Judge Properly Denied Intervention to Group Who Wished to Appeal Years-Earlier Decision to Not Certify Damages Class in Action Alleging That Google’s ‘Private’ Browsing Option Collected Users’ Data
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed an order denying intervention to a group of plaintiffs wishing to challenge a trial judge’s decision to certify only an injunctive-relief class in an action alleging that Silicon Valley-based Google LLC violated federal wiretapping statues and California privacy laws by collecting the data of consumers utilizing a private browsing mode called “Incognito” while representing that the information was protected.
Saying that the case is “an example of ‘too little, too late’ for would-be class action intervenors,” the court opined that their failure to act until one month before a 2024 scheduled final settlement approval hearing, and three months after the agreement was made public, was fatal to their attempt to intervene where the order denying certification to a damages class was issued back in 2022.
Circuit Judge Kenneth K. Lee authored the opinion, joined in by Senior Circuit Judges Richard R. Clifton and Jay S. Bybee. Lee declared:
“We hold that the district court did not abuse its discretion in finding the intervention motion untimely. The [would-be intervenors] 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 [they] 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.”
Chrome Users
At issue is whether a group of 185 Google Chrome users, who were purportedly part of a putative class action filed in Santa Clara Superior Court by lead plaintiff Adam Salcido against the search giant over the data collection practices on April 23, 2024, were rightly denied intervention in the earlier-filed federal lawsuit filed by Chasom Brown and others in June 2020.
The Brown plaintiffs alleged:
“Google has anticipated that consumers are understandably concerned that Google is tracking their personal information and browsing history. To assuage them, Google promises consumers that they can ‘browse the web privately’ and stay in ‘control of what information [users] share with Google.’…Google recommends that its consumers need only launch a browser such as Google Chrome, Safari, Microsoft Edge, or Firefox in ‘private browsing mode.’ Both statements are untrue. When users undertake either—or both—of the aforementioned steps, Google continues to track, collect, and identify their browsing data in real time, in contravention of federal and state laws on wiretapping and in violation of consumers’ rights to privacy.”
According to the complaint, Brown is domiciled in Los Angeles while at least one party is a Florida resident.
Class Certification
In December 2022, District Court Judge Yvonne Gonzalez Rogers of the Northern District of California granted a motion to certify a class under Federal Rule of Civil Procedure 23(b)(2) for class-wide injunctive relief but denied certification to a damages class, saying that the plaintiffs failed to show that common questions predominate.
After the Ninth Circuit denied a petition for interlocutory review in March 2023, the plaintiffs moved forward, seeking injunctive relief for the certified class and individual monetary damages. Several weeks before trial was set to begin, the parties reached a settlement agreement and moved for final approval of the proposed terms on April 1, 2024.
Under the agreement, Google promised to make changes to its policies, including clarifying its data-mining policies, and the class representatives could seek damages for themselves in arbitration, but they waived the right to appeal the denial of certification as to the damages class.
The proposal contained a provision indicating that absent class members would not be deemed to have waived their appellate rights. The Salcido plaintiffs moved to intervene in July 2024, one month before the hearing on final settlement approval; Rogers denied the motion as untimely on August 12, 2024.
Three-Part Test
Noting that “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,’ ” Lee rejected the would-be intervenors’ assertion that the rule does not apply if the parties seek to enter the case for the sole purpose of appealing a class certification denial.
Relying on what Lee described as “snippets of language” from two cases indicating that intervention in such circumstances is appropriate so long as the request comports with appellate timelines, the jurist wrote:
“[A]n opinion is not like a statute, and we do not read its words divorced from the facts of the case….Both [cases cited by the Salcido plaintiffs] 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…..In contrast, there is no final judgment here.”
Applying the three-part standard, he pointed out that “the most important factor in assessing timeliness” is “[w]hether the Salcido plaintiffs’ delay in moving to intervene prejudiced” the parties and remarked that “[t]he Salcido plaintiffs argue that there was no prejudice because they moved to intervene…within three months of learning about the proposed settlement in April 2024.”
Timing of Intervention
Finding this characterization to be unpersuasive, he opined:
“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…request seeking interlocutory appeal of the damages class certification denial).”
Saying that “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,” he said:
“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.”
Remove Critical Term
Commenting that “granting the motion to intervene would effectively remove a critical term from the settlement, sending the parties back to the negotiating table,” he reasoned:
“That is enough to show prejudice to Google and the named plaintiffs.”
Addressing the length and reason for the delay, Lee wrote that “[e]ven if we agreed with the Salcido plaintiffs that the time to act was in April 2024…, it was still too little, too late” because they were aware that their interests “might” be adversely affected back in 2022.
He added:
“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….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.”
The case is Brown v. Salcido, 24-5692.
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