Dep’t of Fair Emp. & Hous. v. Law Sch. Admission Council, Inc., No. C-12-1830, 2012 U.S. Dist. Lexis 150413 (N.D. Cal. Oct. 18, 2012)............ 48, 49

Dep’t of Fair Emp. & Hous. v. Lucent Techs., Inc.,
642 F.3d 728 (9th Cir. 2011)............ 74

Diamond v. Charles,
476 U.S. 54 (1986)............................ 30

Donnelly v. Glickman,
159 F.3d 405 (9th Cir. 1998)............ 74

EEOC v. Com. Off. Prods. Co.,
486 U.S. 107 (1988).................... 11, 55

EEOC v. Route 22 Sports Bar, Inc.,
No. 5:21-cv-7, 2021 WL 2557087 (N.D. W. Va. June 22, 2021)...................... 16

EEOC v. Shell Oil Co.,
466 U.S. 54 (1984)........................ 8, 65

EEOC v. Waffle House, Inc.,
534 U.S. 279 (2002)............................ 7

Evans v. Synopsys, Inc.,
34 F.4th 762 (9th Cir. 2022) 32, 33, 34

Fortune Players Grp., Inc. v. Quint,
No. 16-cv-00800, 2016 U.S. Dist. Lexis 176031 (N.D. Cal. Dec. 19, 2016)..... 54

Gen. Tel. Co. of the Nw., Inc., v. EEOC,
446 U.S. 318 (1980).................. 5, 7, 36

Green v. L.A. Cnty. Superintendent of Schs.,
883 F.2d 1472 (9th Cir. 1989).... 11, 56

Hamer v. Neighborhood Hous. Servs. of Chi.,
138 S. Ct. 13 (2017).......................... 32

Haw. Pac. Venture Cap. Corp. v. Rothbard,
564 F.2d 1343 (9th Cir. 1977).......... 50

In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. Litig.,
894 F.3d 1030 (9th Cir. 2018).......... 70

Jackson v. Cal. Dep’t of Mental Health,
399 F.3d 1069 (9th Cir. 2005).......... 30

Kremer v. Chem. Constr. Corp.,
456 U.S. 461 (1982)........................ 5, 6

League of United Latin Am. Citizens (LULAC) v. Wilson,
131 F.3d 1297 (9th Cir. 1997) 4, 29, 30

Legal Aid Soc’y of Alameda Cnty. v. Brennan,
608 F.2d 1319 (9th Cir. 1979).......... 37

Little v. KPMG LLP,
575 F.3d 533 (5th Cir. 2009)............ 41

Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992).......................... 40

Mach Mining, LLC v. EEOC,
575 U.S. 480 (2015)........................ 7, 8

Maya v. Centex Corp.,
658 F.3d 1060 (9th Cir. 2011).......... 40

N.Y. Gaslight Club, Inc. v. Carey,
447 U.S. 54 (1980).............................. 8

Occidental Life Ins. Co. of Cal. v. EEOC,
432 U.S. 355 (1977)............................ 7

Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin.,
860 F.3d 1228 (9th Cir. 2017).......... 70

Oscar Mayer & Co v. Evans,

.... 441 U.S. 750 (1979)............................ 8

Perry v. Proposition 8 Off. Proponents,

.... 587 F.3d 947 (9th Cir. 2009)............ 67

Piambino v. Bailey,

.... 757 F.2d 1112 (11th Cir. 1985)........ 77

Providence Baptist Church v. Hillandale Comm., Ltd.,

.... 425 F.3d 309 (6th Cir. 2005)............ 78

Retired Chi. Police Ass’n v. City of Chi.,

.... 7 F.3d 584 (7th Cir. 1993)................ 77

Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,

.... 442 F.3d 741 (9th Cir. 2006)............ 69

Sec. Ins. Co. of Hartford v. Schipporeit, Inc.,

.... 69 F.3d 1377 (7th Cir. 1995)............ 75

SEC v. Randolph,

.... 736 F.2d 525 (9th Cir. 1984).............. 8

Simon v. E. Ky. Welfare Rts. Org.,

.... 426 U.S. 26 (1976)).......................... 40

Spokeo, Inc. v. Robins,

.... 578 U.S. 330 (2016).......................... 38

Spring Constr. Co. v. Harris,

.... 614 F.2d 374 (4th Cir. 1980)............ 77

Stadin v. Union Elec. Co.,
309 F.2d 912 (8th Cir. 1962)............ 71

Stupak-Thrall v. Glickman
226 F.3d 467 (6th Cir. 2000)............ 36

Sw. Ctr. for Biological Diversity v. Berg,
268 F.3d 810 (9th Cir. 2001)............ 71

Town of Chester v. Laroe Ests., Inc.,
137 S. Ct. 1645 (2017)................ 46, 69

United States v. Alisal Water Corp.,
370 F.3d 915 (9th Cir. 2004)...... 46, 69

United States v. City of Jackson,

.... 519 F.2d 1147 (5th Cir. 1975).......... 51

United States v. City of Los Angeles,

.... 288 F.3d 391 (9th Cir. 2002) 35, 36, 53, 67

United States v. Hooker Chems. & Plastics Corp.,

.... 749 F.2d 968 (2d Cir. 1984)............. 36

United States v. Oregon,

.... 839 F.2d 635 (9th Cir. 1988)............ 53

United States v. Stringfellow,

.... 783 F.2d 821 (9th Cir. 1986)............ 53

Yniguez v. Arizona,
939 F.2d 727 (9th Cir. 1991)............ 37

Statutes and Regulations

28 U.S.C. § 2107(b).................... 31, 32

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.......... passim

42 U.S.C. § 2000e(k).......................... 6

42 U.S.C. § 2000e-2(a)(1)................... 6

42 U.S.C. § 2000e-3(a)....................... 6

42 U.S.C. § 2000e-5(b)................. 6, 15

42 U.S.C. § 2000e-5(c)........................ 9

42 U.S.C. § 2000e-5(d)....................... 9

42 U.S.C. § 2000e-5(f)(1).................... 7

42 U.S.C. § 2000e-5(f)(3)................ 5, 7

42 U.S.C. § 2000e-8(b)..................... 10

Cal. Evid. Code § 413........................... 44

Cal. Lab. Code § 2699(l)(2)................... 50

29 C.F.R. § 1601.11(a)............................ 6

Rules

Cal. R. Prof. Conduct 1.8.6................... 63

Fed. R. App. P. 4(a)(1)(B)..................... 31

Fed. R. App. P. 4(a)(5).................... 33, 34

Fed. R. Civ. P. 24(a)(2).................. passim

Fed. R. Civ. P. 24(b)(1).................. passim

Fed. R. Civ. P. 24(b)(2)......................... 74

Fed. R. Civ. P. 24(b)(3)......................... 76

Fed. R. Civ. P. 24(c)....................... passim

Model R. Prof. Conduct 1.8(f)............... 63

Other Authorities

110 Cong. Rec. 7214 (1964).............. 9, 10

H.R. 7152, 88th Cong., § 708(b) (2d Sess. 1964)....................................................... 9

Docket, EEOC v. Alia Corp.,

.... No. 11-cv-01549 (E.D. Cal.)............. 64

Docket, EEOC v. Cardinal Health 200, LLC,

.... No. 19-cv-00941 (C.D. Cal.)............. 43

Docket, EEOC v. Kimco Staffing Servs., Inc.,

.... No. 19-cv-01838 (C.D. Cal.)............. 43

Docket, EEOC v. Maurizio’s Trattoria Italiana, LLC,

.... No. 18-cv-338 (S.D. Cal.).................. 64

Docket, EEOC v. Oceanic Time Warner Cable LLC,

.... No. 18-cv-00357 (D. Haw.)............... 64

Outten & Golden, The Initial Consultation, https://www.outtengolden.com/client-service/initial-consultation (last visited Oct. 31, 2022)....................... 63

What You Should Know About: EEOC’s Settlement With Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022)................................... passim

INTRODUCTION

For decades, the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH), now the California Civil Rights Department (CRD), have worked in tandem to eliminate employment discrimination. Here, the agencies initially did just that when, pursuant to a work-division agreement, EEOC investigated harassment allegations against Activision Blizzard, Inc., et al. (Activision) while CRD investigated other sex discrimination allegations, including those related to pay and promotion. Relying on the agencies’ agreement, EEOC conducted a nearly-three-year investigation, interviewing 100+ individuals and reviewing thousands of pages of documents. At the culmination of the investigation, EEOC and Activision negotiated a robust consent decree providing for significant injunctive relief and $18 million in monetary relief for Activision victims not only in California, but also in other states (for whom CRD cannot obtain relief). EEOC then filed its federal complaint raising Title VII claims of sexual harassment, pregnancy discrimination, and related retaliation and, simultaneously, submitted the proposed consent decree.

Despite the agencies’ mutual agreement that EEOC would investigate all harassment allegations against Activision, CRD filed a state-court lawsuit raising state-law sexual harassment (as well as other) claims. CRD then twice moved to intervene in EEOC’s federal action, inexplicably claiming that the consent decree interferes with CRD’s litigation of the very harassment claims that CRD agreed not to pursue. The district court properly denied both motions, recognizing that CRD’s criticisms of the consent decree were based on inaccuracies and speculation. Although the district court denied intervention, it nevertheless granted CRD amicus curiae status, allowing it to participate in two hearings, file a detailed brief with exhibits, and submit other documents laying out its concerns. In short, CRD obtained what it could have with intervention: the opportunity to air its concerns about the consent decree, which the district court carefully considered.

Unsatisfied with the district court’s decision to approve the consent decree—which is already being implemented—CRD twice appealed the denial of intervention. But it never appealed the consent decree itself, depriving this Court of jurisdiction to hear any challenge to the merits of the decree and thus rendering moot CRD’s effort to intervene for purposes of appealing the decree. CRD’s bid to intervene to present further argument before the district court on remand is also moot because CRD identifies no new arguments or participation rights it seeks to invoke as an intervenor; instead, it asks this Court to guarantee that the district court will change its mind on remand based on old arguments. And this Court also lacks jurisdiction because CRD must show Article III standing in order to intervene for purposes of independently pursuing an appeal that neither EEOC nor Activision sought to pursue, and CRD has failed to make that showing here.

Even if this Court finds it has jurisdiction, however, it should affirm the district court’s orders denying intervention. The district court properly denied intervention of right because the decree does not impair any legally protected interest of CRD’s; EEOC adequately represents any interest that CRD might possess; and CRD must (and cannot) establish Article III standing to pursue the relief it sought through intervention. Nor can CRD show that the district court abused its broad discretion in denying permissive intervention under Rule 24(b)(1) given that CRD’s participation would have caused delay and prejudice with no countervailing benefit to efficiency or judicial economy.

STATEMENT OF JURISDICTION

EEOC brought this enforcement action in federal district court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and simultaneously filed a proposed consent decree. 3-ER-620-21 (R.1, R.11). The district court had subject matter jurisdiction to approve the consent decree pursuant to 42 U.S.C. § 2000e-5(f)(3), 28 U.S.C. § 1331, and 28 U.S.C. § 1345.

These consolidated appeals arise from CRD’s attempts to intervene in this federal consent decree proceeding. This Court lacks appellate jurisdiction because these appeals are moot and because CRD does not possess Article III standing. Infra at 37-43. Should this Court disagree, this Court would have jurisdiction under 28 U.S.C. § 1291 over CRD’s appeals of the denials of its motions to intervene as of right. Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 896 (9th Cir. 2011). This Court has jurisdiction over the appeal of the denial of permissive intervention only if the district court abused its discretion. League of United Latin Am. Citizens (LULAC) v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997).

STATEMENT OF THE ISSUES

1. Whether these appeals must be dismissed for want of

jurisdiction based on mootness and lack of Article III standing.

2. Whether the district court correctly concluded that CRD failed

to satisfy Rule 24(a)(2)’s requirements for intervention as of right.

3. Whether the district court acted within its broad discretion in

denying permissive intervention under Rule 24(b)(1).

4. Whether CRD’s failure to file the pleading required by Rule

24(c) provides an alternative basis for affirming the denials of intervention.

PERTINENT STATUTORY PROVISIONS

All relevant statutory and regulatory authorities are contained in the brief or addendum submitted by CRD.

STATEMENT OF THE CASE

A. Statutory and Regulatory Framework

1. EEOC’s role in enforcing Title VII

“The EEOC exists to advance the public interest in preventing and remedying employment discrimination . . . .” Gen. Tel. Co. of the Nw., Inc., v. EEOC, 446 U.S. 318, 331 (1980). It does so by enforcing antidiscrimination statutes, including Title VII. See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 468 (1982) (“Congress enacted Title VII to assure equality of employment opportunities without distinction with respect to race, color, religion, sex, or national origin” and created EEOC to achieve this end).

Title VII forbids discrimination based on sex, which includes pregnancy discrimination. 42 U.S.C. §§ 2000e-2(a)(1), 2000e(k). Title VII also makes it unlawful for an employer to retaliate against individuals who oppose unlawful employment practices. 42 U.S.C. § 2000e-3(a). Under the statute, administrative charges of discrimination may be filed by or on behalf of aggrieved individuals or by EEOC Commissioners. 42 U.S.C. § 2000e-5(b); see 29 C.F.R. § 1601.11(a) (authorizing EEOC Commissioners to file charges of discrimination). Title VII generally directs EEOC to investigate charges of discrimination, determine whether there is reasonable cause to believe charges are true, and, if reasonable cause exists, to engage in conciliation in an effort to resolve the charge informally without resort to litigation. 42 U.S.C. § 2000e-5(b).

In enacting Title VII in 1964, Congress “selected ‘(c)ooperation and voluntary compliance . . . as the preferred means for achieving’ the goal of equality of employment opportunities.” Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 367-68 (1977) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (alterations in original)).

In 1972, Congress amended Title VII “to secure more effective enforcement of Title VII” by “expand[ing] the EEOC’s enforcement powers [to] authoriz[e] the EEOC to bring a civil action in federal district court against private employers reasonably suspected of violating Title VII.” Gen. Tel. Co., 446 U.S. at 325. Consequently, if conciliation is unsuccessful, EEOC can file its own enforcement action seeking relief for an individual or a class of aggrieved individuals. 42 U.S.C. § 2000e-5(f)(1). In exercising its enforcement powers, EEOC is “the master of its own case,” and has “the authority to evaluate the strength of the public interest at stake” and “to determine whether public resources should be committed to the recovery of victim-specific relief.” EEOC v. Waffle House, Inc., 534 U.S. 279, 291-92 (2002).

Whether resolving a charge through the conciliation process or settling an enforcement action in court, EEOC retains broad discretion to determine whether resolution is in the public interest. In Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), the Supreme Court stated that EEOC has wide “latitude . . . to pursue voluntary compliance with the law’s commands.” Id. at 492. This Court likewise has recognized that where government agencies like EEOC have negotiated a proposed settlement, it is necessary to “pay deference to the judgment of the government agency” unless the settlement is “unfair, inadequate, or unreasonable.” SEC v. Randolph, 736 F.2d 525, 529-30 (9th Cir. 1984) (reversing denial of consent decree and emphasizing that “[t]he initial determination whether the consent decree is in the public interest is best left” to the agency negotiating the decree “and its decision deserves our deference”).

2. Limited role of States in enforcing Title VII

Title VII establishes an enforcement scheme where EEOC bears the “[p]rimary responsibility for enforcing Title VII,” EEOC v. Shell Oil Co., 466 U.S. 54, 61-62 (1984), but where “state agencies are given a limited opportunity to resolve problems of employment discrimination,” N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63-64 (1980) (quoting Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755 (1979)). Where the unlawful employment practice is alleged to have occurred in a State with a law prohibiting the practice and an agency established to enforce that law, “no charge may be filed [with EEOC] . . . by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.” 42 U.S.C. § 2000e-5(c); see also id.
§ 2000e-5(d) (providing for similar sixty-day period for EEOC Commissioner charges “upon request” by State or local officials).

Congress enacted these provisions—commonly referred to as “deferral provisions”—to foreclose the possibility of States exercising exclusive jurisdiction over Title VII while providing States with a limited opportunity to resolve problems of employment discrimination. Legislative history confirms that Congress opted against giving States exclusive Title VII jurisdiction. During congressional consideration of Title VII in 1964, the House version of the bill provided for exclusive jurisdiction over Title VII by States under certain conditions. H.R. 7152, 88th Cong., § 708(b) (2d Sess. 1964) (EEOC to determine adequacy of State agency procedures, enter into written agreements with State agencies, and refrain from bringing civil actions in cases referenced in agreements); see 110 Cong. Rec. 7214 (1964). But the Senate abandoned the House approach in favor of the present deferral provisions. See 110 Cong. Rec. at 12819 (remarks of Senator Dirksen) (explaining that the provision of the House bill “which provides for the ceding of Federal jurisdiction is deleted” and “has been replaced by the new [deferral] provisions” under which “the State or local authorities are given exclusive jurisdiction for a limited period of time”) (emphasis added).

EEOC and State fair employment practices agencies (FEPAs) like CRD may enter into worksharing agreements by which States choose to waive this deferral period. 42 U.S.C. § 2000e-8(b) (authorizing EEOC to cooperate with state and local agencies by “enter[ing] into written agreements” with those agencies to promote effective enforcement of Title VII). Title VII gives EEOC the authority to determine whether a given worksharing agreement “serves the interest of effective enforcement” of Title VII and, if not, requires EEOC to “rescind any such agreement.” Id. EEOC has long had worksharing agreements with CRD that provide that EEOC will have primary responsibility for resolving certain categories of charges, including charges originally received by EEOC and “[a]ll charges filed by EEOC Commissioners,” like the one that gave rise to the present litigation. Dkt. 12-2 at 25. This Court, in considering the deferral provisions of one of EEOC and CRD’s worksharing agreements, has observed that the use of such “agreements between state and local agencies and the EEOC has been encouraged by Congress and approved by the Supreme Court.” Green v. L.A. Cnty. Superintendent of Schs., 883 F.2d 1472, 1477 (9th Cir. 1989); EEOC v. Com. Off. Prods. Co., 486 U.S. 107, 117-18 (1988) (approving of voluntary waiver of deferral periods by state agencies pursuant to worksharing agreements).

B. Factual Background

1. EEOC Commissioner charge and agreement with CRD for EEOC to handle investigation of harassment allegations against Activision

In September 2018, after receiving an anonymous complaint from one of Activision’s employees, an EEOC Commissioner filed a charge opening an investigation into allegations of discrimination in Activision’s workplaces. EEOC-SER-103 at ¶¶ 2-3; EEOC-SER-150 at ¶¶ 3, 5. Approximately one month later, CRD filed a Director’s Complaint of discrimination against Activision. EEOC-SER-150 at ¶ 4; 3-ER-485.

EEOC and CRD’s worksharing agreement specified that EEOC would have primary responsibility for resolving all Title VII charges filed by its own Commissioners as well as all first-in-time Title VII charges. Dkt. 12-2 at 25. While this agreement already provided that EEOC had primary responsibility for investigating the allegations against Activision (based on EEOC’s earlier-filed Title VII Commissioner Charge), EEOC reached out to CRD immediately after learning of CRD’s Director’s Complaint to divide labor so that the two agencies could cooperate effectively together. EEOC-SER-150-51 at ¶¶ 5-6. The agencies discussed that EEOC would take responsibility for investigating harassment allegations and CRD would take responsibility for investigating pay and promotion allegations. EEOC-SER-151 at ¶ 6. In December 2018, then-District Director of EEOC’s Los Angeles District Office Rosa Viramontes and CRD Director Kevin Kish formalized this agreement and Ms. Viramontes communicated its parameters to investigative and legal staff. EEOC-SER-105-06 ¶¶ 12-13.

In 2019, Ms. Viramontes spoke on several occasions with Janette Wipper, CRD’s Chief Counsel at the time, and further confirmed that EEOC would take the lead on investigating harassment, while CRD would take the lead on investigating pay and promotion. EEOC-SER-106 at ¶ 13. Ms. Wipper and Ms. Viramontes confirmed this agreement in a series of emails between May 22, 2020, and June 4, 2020, where CRD again reiterated that it was not investigating harassment allegations. EEOC-SER-106-07 at ¶ 14.

EEOC relied on the agencies’ agreement and focused its investigation on harassment allegations, relinquishing its right to investigate federal pay and promotion allegations. EEOC-SER-107 at
¶ 15. EEOC conducted a nearly-three-year investigation, interviewing over 100 employees, managers, and third parties, and reviewing thousands of pages of documents. EEOC-SER-12 at ¶ 3.

2. EEOC’s Letter of Determination and conciliation efforts

On June 15, 2021, EEOC concluded its investigation and issued a Letter of Determination outlining violations with respect to harassment and, arising out of the investigation, violations with respect to pregnancy discrimination and related retaliation.[1] EEOC-SER-108 at
¶ 24, 148; 3-ER-609 at ¶ 16. Pursuant to the agencies’ agreement, EEOC sent a copy of this Letter of Determination to CRD on June 23, 2021. EEOC-SER-109, 135. Contrary to CRD’s assertion that EEOC “secretly negotiated a proposed consent decree without [CRD’s] input,” 3-ER-446, EEOC’s cover letter to this Letter of Determination specifically informed CRD that EEOC had begun “engaging in conciliation with [Activision]” and invited CRD “to discuss coordinating next steps” with EEOC’s legal unit. EEOC-SER-135.

CRD did not respond. EEOC-SER-110 at ¶ 29. Instead, nearly a month later, EEOC learned from media reports that CRD had filed a state-court complaint against Activision on July 20, 2021. EEOC-SER-110 at ¶ 30. This litigation (“the state-court action”) asserted a sexual harassment claim, directly contrary to the agencies’ agreement, and other claims. 3-ER-501-02. The state-court action covers only California workers, rather than workers nationwide, as EEOC’s federal action does. See 3-ER-48. A week after CRD filed its state-court action, it belatedly informed EEOC. EEOC-SER-110 at ¶ 31.

Meanwhile, EEOC and Activision engaged in extensive arms-length negotiations, first during conciliation, and later with the assistance of a third-party mediator over three days of mediation and subsequent negotiations. EEOC-SER-39 at ¶ 3. Only after CRD filed its lawsuit against Activision did CRD express any interest in participating in EEOC’s conciliation discussions with Activision. EEOC-SER-110 at ¶¶ 31-33. But at that point—after CRD filed a public lawsuit against Activision—EEOC could not invite CRD to participate in these conciliation discussions, since Activision was not willing to waive its statutory entitlement to confidentiality. EEOC-SER-111 at ¶¶ 34-35; see also 42 U.S.C. § 2000e-5(b) (requiring confidentiality during conciliation). Nonetheless, Ms. Viramontes and other EEOC officials communicated regularly with CRD from August to September 2021, working to coordinate meetings between the two agencies. EEOC-SER-111 at ¶¶ 37-40.

3. EEOC’s complaint and proposed consent decree

On September 27, 2021, EEOC simultaneously filed a complaint and submitted its proposed consent decree in federal district court. 3-ER-620-21 (docket entries for R.1, R.11). Before doing so, EEOC’s Los Angeles District Office properly obtained authorization from EEOC’s Office of General Counsel.[2] EEOC-SER-153 at ¶ 3. Consistent with the terms of the agencies’ agreement, the complaint asserted only Title VII claims of sexual harassment, related retaliation, and pregnancy discrimination, and did not assert any other federal sex discrimination claims, like pay or promotion claims, nor any state-law claims. 3-ER-610 at ¶¶ 21-25. EEOC’s complaint described the relevant allegations and claims at issue. 4-ER-610. Although CRD characterizes EEOC’s six-page complaint as “bare-bones,” Dkt. 24-1 at 23, including more detail would have served no purpose given that EEOC and Activision had already agreed to resolve the present litigation through the consent decree rather than through adjudication of the underlying factual issues. EEOC provided a copy of the complaint and proposed consent decree to CRD when they were filed. EEOC-SER-112 at ¶ 41.

The consent decree provides for comprehensive nationwide relief, including sweeping injunctive relief and an $18-million class fund[3] available to Activision employees in California and other states. 1-ER-15, 1-ER-25-52. The injunctive relief requires, among other things, that Activision hire a third-party EEO consultant to conduct audits, track complaints, and assess trainings, 1-ER-27-29; hire an internal EEO coordinator to ensure compliance with the decree, 1-ER-29-31; conduct trainings, 1-ER-39-43; and provide counseling to employees who suffered sexual harassment, pregnancy discrimination, or related retaliation, 1-ER-45-46.

The consent decree also details the claims process. It contemplates that claimants will submit claims forms detailing their allegations. 1-ER-19-20. EEOC will then determine whether a claimant is eligible for relief under the decree and what amount of compensation is warranted. 1-ER-20. The claims administrator, who is paid by Activision, then informs eligible claimants of the amount allocated. ER-16, 20-21. At that point, an eligible claimant has the opportunity to consult with an independent attorney “to advise on the release of claims to which the EEOC is not a party.” 1-ER-21. Activision must pay for the one-hour consultation. 1-ER-21. Claimants select their own attorney and, in making this selection, can consult a list compiled by EEOC of recommended plaintiffs’ attorneys who have confirmed their willingness to provide such consultation. 1-ER-21; see also What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022) (explaining that claimants can select attorney of their choosing).

Contrary to CRD’s repeated assertions, the decree itself does not purport to resolve or settle any state-law claims. Instead, the decree resolves only the Title VII claims EEOC asserted in its federal court complaint. 1-ER-11 (“[T]his Decree completely and finally resolves all allegations, issues, and claims raised by the EEOC against Defendants made in the Action . . . .”) (emphasis added). Claimants have a voluntary choice whether to release their individual claims and collect from the class fund. The release in question is narrowly tailored to only those claims that are analogues of the claims covered by the decree: namely, claims “for sexual harassment, pregnancy discrimination, or related retaliation,” whether under Title VII, the Fair Employment and Housing Act (FEHA) (a California state law), or “any other applicable federal, state, or local law.” 1-ER-78. The release does not purport to waive any relief in connection with other claims, such as sex discrimination claims based on pay or promotion. ER-78. And nothing in this release or in the decree itself imposes a confidentiality provision on claimants or prohibits them from testifying as witnesses or offering evidence in other proceedings. 1-ER-78.

A claimant who is unsatisfied with the allocated amount, or who does not want to release other claims, can simply decline to participate further in the decree’s claims process. This leaves Activision employees free to pursue federal or state claims in their preferred forum (or not at all), assuming that they satisfy applicable prerequisites to suit. Because the decree, like all EEOC consent decrees, is opt-in rather than opt-out in nature, no claimant waives any claim through inaction. 1-ER-58 (“Participation in this settlement is completely voluntary.”). In short, the consent decree gives claimants the power to choose whether to recover from the consent decree; the choice is entirely theirs.

The decree also protects eligible claimants from retaliation in their efforts to find future employment by giving them the option to have documents related to their allegations of discrimination segregated from their personnel files and to have retaliatory terminations reclassified as voluntary resignations. 1-ER-25-26. Far from mandating the destruction of this information, the decree specifically requires that such information be retained, stating that “Defendants must retain a record of any information removed from an Eligible Claimant’s personnel file . . . consistent with the recordkeeping provisions” contained in the decree or as “otherwise required by law.” 1-ER-25 (emphasis added).

C. Procedural History

On October 25, 2021, CRD filed a first motion to intervene in the district court for the purpose of opposing the proposed consent decree. 3-ER-437. On December 20, 2021, the district court denied the motion. 1-ER-88-90. The district court concluded that CRD lacked a significant protectable interest sufficient to allow intervention of right under Rule 24(a)(2) and that, in any event, the consent decree would “not, as a practical matter, impair or impede” CRD’s ability to protect any such interest. 1-ER-88-89. The district court reasoned that CRD could not claim an interest in how “individual Californians . . . settle their claims”; this interest, the court found, “belongs to the individuals who might make claims under the claims process, not to [CRD].” 1-ER-89. The district court also rejected CRD’s purported “interest in protecting evidence from being destroyed,” finding no “serious possibility” that the consent decree “purport[s] to allow or mandate destruction of evidence relevant to litigation.” 1-ER-89.

The district court also exercised its discretion to deny permissive intervention under Rule 24(b)(1). It emphasized that, while CRD had claims in the state-court action that shared common questions with claims at issue in the federal action, CRD did not seek to dispose of those claims together with the federal action but instead sought to litigate those claims in the separate state-court action. 1-ER-89-90.

Although the district court denied CRD’s intervention motion, it allowed CRD to participate as amicus curiae and made clear that CRD’s “concerns can be expressed . . . through this mechanism and will be considered by the Court.” 1-ER-90. CRD accepted that invitation and later filed a thirteen-page brief with nine exhibits setting out its concerns about the consent decree. 2-ER-236. Styling its brief as “Objections to Approval of Proposed Amended Consent Decree” and referring to itself as a “Proposed Intervenor” (rather than as an amicus), CRD offered the same objections to the decree that it raises on appeal: that the decree impermissibly seeks to resolve state-law claims, requires destruction of evidence, and is monetarily inadequate. 2-ER-236-52.

Meanwhile, CRD appealed the denial of its first intervention motion on January 7, 2022. 3-ER-613. CRD subsequently filed motions to stay the district court proceedings pending resolution of this appeal—first with the district court and then with this Court. 2-ER-222; Dkt. 10. Both the district court and this Court swiftly denied these motions. 1-ER-85-87 (district court order denying stay motion a week after briefing completed, citing prejudice of delaying relief to victims of discrimination and absence of prejudice to CRD); Dkt. 17 (this Court denying stay motion days after briefing completed).

The district court ultimately approved the consent decree on March 29, 2022, finding that the provisions of the decree were fair, reasonable, and adequate, and advanced the public interest. EEOC-SER-2; 3-ER-629 (docket entry for R.82). Prior to approving the consent decree, the district court held two hearings, asked detailed questions of EEOC and Activision, and requested and reviewed several edited versions of the decree. See 1-Supp.ER-162 (sixty-three page transcript of December 13, 2021, hearing where district court posed questions and requested decree revisions); EEOC-SER-41 (EEOC/Activision’s joint filing responding to court-requested clarifications); 2-ER-279 (submission of first amended consent decree); EEOC-SER-25 (EEOC/Activision’s application for submission of documents for in camera review addressing district court’s questions regarding calculations underlying settlement figure); EEOC-SER-23 (district court order granting in camera review); 1-ER-81-83 (district court order requesting additional clarifications from parties); EEOC-SER-3 (EEOC/Activision’s joint filing responding to further court-requested clarifications); 2-ER-116 (submission of second amended consent decree); EEOC-SER-2 (second hearing with counsel for EEOC, Activision, and CRD); 1-Supp.ER-22 (EEOC/Activision’s joint submission of final documents incorporating requested revisions).

CRD participated at the hearings (EEOC-SER-2, 1-Supp.ER-162), presenting extensive argument (1-Supp.ER-162-224), and also submitted detailed objections to the consent decree in its amicus brief. 2-ER-236. Prior to approving the consent decree, the district court made clear that it had reviewed CRD’s objections but found many of them to be “inaccurate, based on speculation,” or otherwise unpersuasive. 1-ER-83. The court also stated that it was “generally satisfied that both the monetary relief and the nonmonetary provisions are fair, reasonable, and adequate.” 1-ER-81.[4]

Following the district court’s approval of the consent decree, CRD filed a second motion to intervene. 2-ER-93. The district court denied this motion on June 3, 2022. 1-Supp.ER-3-4. The court treated the second motion as “essentially one for reconsideration of the Court’s prior denial of intervention,” given that CRD had not “argue[d] that the standard for intervention on appeal is different from the standard for intervention prior to judgment or that [CRD] somehow has a greater interest in the case on appeal for Rule 24 purposes than it had prior to judgment.” 1-Supp.ER-3. Finding no reason to depart from the analysis in its prior decision denying intervention, the district court denied the second motion to intervene. 1-Supp.ER-4. The court added that to the extent CRD was making “new arguments, there is no apparent reason why they could not have been raised” in the first intervention motion. 1-Supp.ER-4.

On June 7, 2022, CRD filed a notice of appeal of the district court’s denial of its second motion to intervene. 1-Supp.ER-226. The notice of appeal indicated an intent to appeal only the June 3, 2022, order denying the motion to intervene and not the approval of the consent decree. 1-Supp.ER-226 (checking box to appeal “order denying motion to intervene” rather than underlying “judgment”); 1-Supp.ER-244 (docket entry for R.101 (notice of appeal), referencing only R.100, the June 3, 2022 order denying intervention). This Court consolidated CRD’s second appeal with its prior January 7, 2022, appeal.[5] Dkt. 42.

The claims-filing period for the consent decree closed on August 13, 2022. See What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022). Since then, EEOC has completed its assessment and allocation of submitted claims, finding hundreds of individuals eligible for awards, and has distributed most of the $18 million fund. Id. Additionally, Activision is already in the process of implementing the comprehensive injunctive relief contemplated by the consent decree; the decree requires it, within thirty to sixty days of the decree’s effective date, to hire a third-party EEO consultant, designate an internal EEO coordinator, and provide free counseling services to employees who experienced sexual harassment, pregnancy discrimination, or related retaliation. 1-ER-27 (hiring of EEO consultant within 30 days); 1-ER-29 (hiring of EEO coordinator within 45 days); 1-ER-45-46 (provision of counseling within 60 days).

SUMMARY OF THE ARGUMENT

CRD appeals the district court’s denials of its two motions to intervene, although its ultimate goal is to undo the $18 million consent decree that EEOC and Activision negotiated and that the experienced district court judge approved. Because the district court and this Court denied CRD’s motions to stay the consent decree, EEOC and Activision are already implementing it, providing injunctive relief and allocating the $18 million fund to hundreds of eligible claimants.

CRD’s appeals are moot because CRD does not identify any effectual relief that could stem from reversal of the denials of intervention. CRD would not be able to use its newly granted intervenor status to appeal the consent decree because the jurisdictional deadline for filing a notice of appeal from the approval of the consent decree has passed. And, while CRD argues that as intervenor it could present additional argument on remand to convince the district court that the decree is improper, CRD does not identify any new participation rights it seeks to assert as intervenor that would make the district court more likely to accept the arguments it rejected when CRD previously raised them. This Court cannot grant CRD’s requested relief of a guarantee that the district court will change its mind on remand.

This Court also lacks jurisdiction because, in order to intervene for the purpose of pursuing an appeal of the decree that neither EEOC nor Activision sought to pursue, CRD must establish Article III standing. CRD has failed to do so because its claim of injury rests on speculation and mischaracterizations of the decree’s provisions. And any purported injury is traceable to the independent remedial choices of aggrieved workers, rather than to the decree itself.

Even if this Court did have jurisdiction to consider CRD’s appeals, these appeals lack merit. The district court properly denied intervention of right under Rule 24(a)(2) because CRD failed to establish a protectable interest that the consent decree stood to impair. CRD’s professed interest is in vetoing the remedial choices of California workers when those choices threaten CRD’s litigation objectives, and law does not protect this interest. And while CRD has an interest in protecting California workers from employment discrimination, EEOC adequately represents that interest as the federal agency charged with preventing and remedying employment discrimination nationwide, and it protected that interest here. Finally, CRD lacks Article III standing to pursue the relief it sought through intervention because that relief is diametrically opposed to that sought by EEOC and Activision.

Nor did the district court abuse its broad discretion in denying permissive intervention. Although CRD asserts state-law claims that share common issues with the federal claims in this litigation, intervention would not benefit efficiency or judicial economy because CRD seeks to litigate those claims in a separate forum rather than in this action. Finally, CRD’s failure to file the pleading required by Rule 24(c) provides an alternative basis to affirm the denial of intervention because CRD has not described the relief it seeks with sufficient specificity to avoid prejudice.

STANDARD OF REVIEW

This Court “review[s] a district court’s denial of a motion to intervene as of right pursuant to Rule 24(a)(2) de novo.” LULAC, 131 F.3d at 1302. A district court’s denial of permissive intervention pursuant to Rule 24(b) is reviewed for abuse of discretion. Cnty. of Orange v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986). Before addressing the merits of an appeal, however, this Court is under a “continuing, independent obligation to ensure that [it has] subject matter jurisdiction over a case.” Clark v. City of Seattle, 899 F.3d 802, 808 (9th Cir. 2018) (citation omitted).

ARGUMENT

I. This Court lacks jurisdiction to hear CRD’s appeals.

“Article III of the Constitution limits the power of federal courts to deciding ‘cases’ and ‘controversies.’” Diamond v. Charles, 476 U.S. 54, 61 (1986). “Article III imposes two important limitations”: that the case not become moot after filing and that litigants have standing to bring their claims. Jackson v. Cal. Dep’t of Mental Health, 399 F.3d 1069, 1071 (9th Cir. 2005). These jurisdictional limitations deprive this Court of jurisdiction to hear these appeals.

A. These appeals are moot.

An appeal is moot when it is “impossible for the court to grant” any effectual relief to the appellant. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). Here, although the relief sought by CRD is less than precise, see infra at 77-78, it appears that CRD ultimately seeks to overturn the denial of intervention in order to: (1) appeal the consent decree and (2) present further argument before the district court in order to “ensur[e]” a different outcome on remand. Dkt. 24-1 at 53; Dkt. 47 at 24. This Court cannot grant either category of relief.

1. Even if granted intervention status, CRD could not appeal the consent decree itself because the jurisdictional deadline for filing a notice of appeal has elapsed.

While a grant of intervenor status will typically allow a non-party to appeal a judgment when it otherwise could not, here CRD could not appeal the consent decree even if granted intervenor status. This is because CRD filed neither a timely notice of appeal of the district court’s order approving the consent decree nor a motion to extend the time to do so. The district court approved the consent decree on March 29, 2022. EEOC-SER-2; 3-ER-629 (docket entry for R.82). CRD filed a notice of appeal on June 7, 2022, 1-Supp.ER-226, after the 60-day deadline to appeal had already elapsed. 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B). Not only was this notice of appeal untimely for purposes of appealing the consent decree, but it states that CRD is appealing only the denial of intervention and not the consent decree itself. 1-Supp.ER-226 (indicating intent to appeal order “denying motion to intervene” and not underlying “judgment”); 1-Supp.ER-244 (docket entry for R.101 (notice of appeal), referencing only R.100, the order denying the second motion to intervene, rather than the approval of the consent decree). Because “[a]n appeal filing deadline prescribed by statute” is to be “regarded as ‘jurisdictional,’” Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16 (2017) (citation omitted), this Court would lack jurisdiction to consider any appeal of the consent decree that CRD might seek to file if granted intervenor status.

The fact that CRD was only a prospective intervenor and not a party during the pendency of the 60-day appeal deadline does not alter this analysis. Indeed, this Court recently rejected the argument that “the time to file a notice of appeal provided in § 2107(b) applies only to parties and not to prospective intervenors.” Evans v. Synopsys, Inc., 34 F.4th 762, 769 (9th Cir. 2022). The prospective intervenor in Evans failed to timely file a notice of appeal of the judgment. But it argued that the “clock on its time to appeal . . . did not start running until the district court . . . formally made [it] a party” months later “by granting in part its motion to intervene.” Id. at 770. This Court disagreed, explaining that “[a]lthough generally only parties may appeal an adverse judgment, it does not follow that the deadline to file a notice of appeal for prospective intervenors is different from the deadline for parties.” Id. at 769. Instead, this Court explained, a prospective intervenor could file in the district court “[a] timely motion to extend the deadline to appeal” pursuant to Federal Rule of Appellate Procedure 4(a)(5), id. at 772-73, that would “act[] as a wedge that keeps the window for a prospective intervenor to appeal the merits open” while the intervention motion is pending. Id. at 773. Because the prospective intervenor in that case neither timely filed a notice of appeal nor filed a formal motion requesting an extension of time to do so, this Court lacked jurisdiction to hear any appeal of the final judgment by the prospective intervenor. Id. at 774-75, 777.

Here, just as in Evans, CRD neither timely filed a notice of appeal of the consent decree itself nor filed a formal motion requesting an extension of time to do so while it awaited the district court’s decision on its second intervention motion. Id. at 773 (emphasizing that Rule 4(a)(5) “requires a formal motion” and that “even a late-filed notice of appeal—a document that unequivocally evinces a party’s intent to appeal—cannot be construed as a motion to extend the time to appeal” (citations omitted)). Thus, this Court would lack jurisdiction to hear any appeal of the consent decree that CRD might seek to bring if granted intervention status. The question of whether intervention for purposes of appeal should have been granted is thus moot. Id. at 777 (failure to file timely notice of appeal “moot[ed]” appeals of “district court’s decision to grant . . . intervention to appeal the judgment”).

2. The district court has already rejected the arguments CRD wants to make on remand as intervenor.

CRD also states that, if granted intervenor status, it would seek to present additional argument before the district court in order to “ensur[e]” on remand “that th[e] consent decree not be approved.” Dkt. 24-1 at 53. This is puzzling, however, because the consent decree has already been approved, the claims deadline has passed, and the decree’s requirements are being implemented. Even if this Court reversed the denial of intervention, such a holding would not “require the district court to turn back the clock or rescind the consent decree”; it would instead allow CRD to be “treated as interven[o]r . . . from that date forward.” United States v. City of Los Angeles, 288 F.3d 391, 404-05 (9th Cir. 2002).

While CRD states that intervenor status would allow it to “seek to amend or set aside the consent decree,” Dkt. 47 at 21-22, CRD has not articulated how being granted intervenor status would allow it to accomplish this goal. CRD says it seeks the opportunity to “assert argument” again before the district court in a renewed effort to show that the decree is improper. Dkt. 24-1 at 53. But CRD already had more than ample opportunity to assert argument in its role as amicus, submitting extensive “[o]bjections” to the consent decree and participating in two hearings regarding the propriety of the decree. 2-ER-236, 1-Supp.ER-162-224, EEOC-SER-2. As the district court said below, CRD “has never clearly enunciated what advantage it seeks to gain by its participation as a formal party rather than having a voice as an amicus curiae.” 1-ER-86. And the district court made clear that it carefully considered CRD’s objections but nonetheless found them to be largely “inaccurate,” “based on speculation,” or otherwise unpersuasive. 1-ER-83.

CRD does not identify any new arguments it could make or new participation rights it could invoke as intervenor that would make the district court more likely to accept CRD’s position.[6] Instead, CRD’s goal of “commenting on the federal consent decree,” Dkt. 24-1 at 11, has “clearly been met already” because “the district court did consider all of the arguments and evidence that [CRD] believed [to be] critical, by virtue of [CRD] having received the district court’s permission to submit a brief as amic[us] curiae,” Stupak-Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir. 2000).[7]

At bottom, then, the relief CRD seems to request from this Court is not any expanded participation rights as intervenor but instead a guarantee that the district court will change its mind on remand and accept arguments it already rejected. See Dkt. 24-1 at 53 (“Ultimately, [CRD] simply seeks to participate for the limited purpose of ensuring that this consent decree not be approved . . . .”). This Court has no power to guarantee such an outcome, however, as district courts retain broad discretion to approve consent decrees. Because this Court cannot grant any effectual relief in this respect, this appeal should be dismissed as moot.

B. CRD lacks Article III standing to intervene for purposes of appeal.

As CRD acknowledges, Dkt. 47 at 19, it had to establish Article III standing in connection with its second intervention motion because it sought to “interven[e] . . . for the purpose of pursuing an appeal” which neither EEOC nor Activision sought to pursue. Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir. 1991); see also Legal Aid Soc’y of Alameda Cnty. v. Brennan, 608 F.2d 1319, 1328 (9th Cir. 1979) (explaining that “[p]ost-judgment intervention for purposes of appeal may be appropriate if the intervenors . . . meet traditional standing criteria”).

To satisfy Article III standing, CRD must show that it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct . . ., and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). CRD has failed to make this showing.

With respect to injury in fact, CRD claims that the consent decree impairs its prosecution of the state-court action by: (1) undermining claimants’ willingness to cooperate as witnesses or provide discovery; (2) subjecting the action to potential liability defenses; and (3) requiring alteration and destruction of relevant employment records. Dkt. 47 at 20-21. Each of these alleged injuries, however, are not traceable to the consent decree or are otherwise speculative in nature.

First, CRD asserts that “by requiring claimants to release California claims, the consent decree has greatly undermined the incentive for such claimants to cooperate as witnesses or provide discovery in the State Action.” Dkt. 47 at 21. But CRD does not explain why any release of claims would preclude cooperation or participation by the claimants in question. The release does not prevent claimants from testifying as witnesses or providing evidence in the state-court litigation (or any other litigation), or contain any confidentiality provision that could be construed as doing so. 1-ER-78. Moreover, CRD’s premise that the consent decree “requir[es] claimants to release California claims,” Dkt. 47 at 21, is mistaken. As an initial matter, the consent decree does not implicate release of “California claims” writ large. Instead, the voluntary releases are narrowly tailored to claims that are analogues of the Title VII claims asserted here (namely, claims “for sexual harassment, pregnancy discrimination, or related retaliation”), and do not implicate any other claims (like pay and promotion claims) at issue in CRD’s state-court action. 1-ER-78. And the consent decree does not require release of these claims. Instead, each eligible claimant has a choice (following consultation with independent counsel) of whether to release discrete claims and collect from the class fund. If eligible claimants do not want to release their claims and collect from the class fund, they are not required to do so. Because “[p]articipation in th[e] settlement is completely voluntary,” 1-ER-58, no individual’s claim will be waived by inaction.

Thus, any claim of injury resulting from release of state-law claims is traceable not to the consent decree itself but to the independent remedial choices of individual California workers. See Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41-42 (1976) (Article III “requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court”); Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (“In cases where a chain of causation involves numerous third parties whose independent decisions collectively have a significant effect on plaintiffs’ injuries, the Supreme Court and this Court have found the causal chain too weak to support standing . . . .” (citations omitted)).

Moreover, CRD’s claim of injury stemming from release of state-law claims is “conjectural” and “hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). CRD’s fear that the voluntary releases will gravely undermine cooperation in the state-court litigation rests on a “speculative chain of possibilities,” Clapper v. Amnesty Int’l, USA, 568 U.S. 398, 414 (2013), namely, that a significant number of individuals in the nationwide class: (1) will be California workers within the scope of CRD’s California-limited state-court action; (2) will choose to release their state-law claims; and (3) will then refuse to cooperate as witnesses or provide discovery in connection with the state-court action. Because CRD’s claim of injury “require[s] guesswork as to how independent decisionmakers” will act, it falls far short of the “certainly impending” injury required for Article III standing. Id. at 413, 422; see also Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009) (“A claim of injury generally is too conjectural or hypothetical to confer standing when the injury’s existence depends on the decisions of third parties not before the court.”).

CRD’s second claim of injury—that its state-court action could be subject to “liability defenses” or “limitations on remedies” based on the consent decree—is equally speculative. Dkt. 47 at 20. As an initial matter, it is unclear whether many of the general defenses asserted by Activision that CRD identifies are actually premised on the decree. See Dkt. 47 at 21 (referring to defenses related to “the doctrine of estoppel” and “offset” without further specificity). Nor does Activision’s statement that the consent decree would not bar continued prosecution of the state-court claims in their entirety, Dkt. 47 at 21, somehow establish that such a bar is “certainly impending,” Clapper, 568 U.S. at 422. CRD also relies on portions of Activision’s Answer that assert that individuals who choose to release claims cannot then bring those claims in the state-court litigation. Dkt. 47 at 20-21 (relying on Activision’s assertion that CRD “cannot recover monetary relief for any claims waived or released by any putative class member” or for “putative class members . . . covered by any . . . release of claims covering any claims alleged in this action” (quoting Dkt. 26-3 at ¶¶ 224, 248)). But the mere fact that Activision has asserted these defenses does not mean that those defenses will prevail and, even if they did, any injury would again be traceable not to the decree but to the independent choices of third parties to release their claims, which they have every right to do.[8] Supra at 38-40.

Finally, CRD argues that the consent decree “jeopardiz[es] necessary discovery” in the state-court action “by requiring Activision to alter and even destroy employment records.” Dkt. 47 at 21. This claim of injury is misleading and inaccurate. The decree protects claimants from future retaliation by giving them the option to have references to their allegations of discrimination segregated from their personnel file.[9] 1-ER-25-26; SER 7-8 (specifying that documents will be segregated “only if Eligible Claimant requests such relief”); see also What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022) (claimant can choose “to request that an unfair termination be reclassified as a resignation”).

Instead of requiring the destruction of such information, the decree expressly requires Activision to “retain a record of any information removed from an Eligible Claimant’s personnel file . . . consistent with the recordkeeping provisions” of the decree or as “otherwise required by law.” 1-ER-25 (emphasis added). And the recordkeeping provisions of the decree, in turn, require Activision to ensure centralized tracking of information and to make records available to EEOC promptly upon request.[10] 1-ER-47-49. Moreover, if Activision were to destroy documents relevant to a pending lawsuit, it would be subject to an adverse spoliation inference under California law. Cal Evid. Code § 413. As the district court recognized, there is thus “no serious possibility” that the consent decree injures CRD’s interests by “purport[ing] to allow or mandate destruction of evidence relevant to litigation.” 1-ER-89.

II. The district court properly concluded that CRD failed to satisfy Rule 24(a)(2)’s requirements for intervention of right.

Rule 24(a)(2) requires that four elements be satisfied to establish

intervention as of right: (1) the motion must be timely; (2) the applicant must claim a significant protectable interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must not be adequately represented by the parties to the action. Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). “[I]t is incumbent on” CRD, as “the party seeking to intervene,” to “show that all the requirements for intervention have been met.” Chamness v. Bowen, 722 F.3d 1110, 1121 (9th Cir. 2013) (citation and alterations omitted).

The district court correctly found that CRD was not entitled to intervene because it failed to show a protectable interest that the consent decree stood to impair or impede. 1-ER-88-89. In addition, although the district court denied intervention on that basis without reaching Rule 24(a)(2)’s other requirements, this Court can also affirm on the grounds that EEOC adequately represents any protectable interest that CRD might have. Finally, CRD’s lack of Article III standing provides an additional basis to affirm the denial of intervention because a prospective intervenor of right who, like CRD, pursues relief different from that sought by the parties must establish standing in order to do so. Town of Chester v. Laroe Ests., Inc., 137 S. Ct. 1645, 1651 (2017).

A. The district court correctly concluded that CRD lacks a legally cognizable interest that the consent decree stands to impair or impede.

To establish a significant protectable interest, a prospective intervenor must possess an “interest [that] is protected by law” and show “a relationship between the legally protected interest and the plaintiff’s claims.” United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). CRD has failed to make this showing.

1. Alleged infringement on CRD’s authority to enforce state anti-discrimination law

CRD first claims that the decree interferes with its statutory mandate to enforce FEHA. Dkt. 24-1 at 32-34. EEOC, in CRD’s estimation, has “stray[ed] past [its] jurisdictional boundaries,” Dkt. 47 at 9, by “alleg[ing]” and “extinguish[ing]” FEHA claims that are the statutory province of CRD. Dkt. 24-1 at 50. But this argument again relies on the faulty premise that the decree asserts and resolves state-law claims. Instead, as explained above, supra at 18-20, the decree only resolves the specific federal Title VII claims asserted in this litigation and leaves every other potential claim intact. Claimants then have the option to release a narrow category of claims in exchange for compensation under the decree.

CRD fails to explain how a consent decree resolving federal-law claims on behalf of a nationwide class undermines CRD’s statutory authority to pursue state-law remedies for California workers. To the contrary, courts have made clear that the authority to enforce state-law anti-discrimination provisions does not create a significant protectable interest that justifies intervention in a federal Title VII action. For example, in Brewer v. Republic Steel Corp., 513 F.2d 1222 (6th Cir. 1975), the Ohio Civil Rights Commission—the agency charged with administering and enforcing Ohio’s civil rights act—sought to intervene in a federal Title VII action. Id. at 1223. The Sixth Circuit determined that the Commission lacked “the sort of direct, substantial interest . . . that Rule 24(a) requires” because “[t]he Commission’s duty and its interest lies in enforcing the Ohio civil rights statutes, not the parallel federal laws.” Id. This Court has reached the same conclusion where state agencies have sought to intervene in federal litigation in other contexts. Blake v. Pallan, 554 F.2d 947, 952-53 (9th Cir. 1977) (relying on Brewer to conclude that the agency charged with enforcement of California securities law lacked significant protectable interest to justify intervention in federal securities law class action).

CRD cites case law for the proposition that “government agencies have a right to intervene in order to protect their enforcement interests,” Dkt. 24-1 at 32, but none of these decisions concerned intervention by a state agency in a federal action asserting only federal claims (or vice versa). Contrary to CRD’s assertion, Department of Fair Employment & Housing v. Law School Admission Council, Inc., No. C-12-1830, 2012 U.S. Dist. Lexis 150413 (N.D. Cal. Oct. 18, 2012), was not a “reverse situation” where the federal government sought to intervene in a purely state-law action. Dkt. 24-1 at 33. Instead, in that case, the federal government intervened in a federal action brought by CRD (then DFEH) asserting federal ADA claims. 2012 U.S. Dist. Lexis 150413, at *2. Intervention in that case was premised on the federal government’s interest in enforcing the federal-law claims directly raised in CRD’s litigation. Id. at *4 (“Unlike DFEH, whose jurisdiction is confined to the State of California and which does not have direct enforcement authority over the ADA, the United States has an interest in enforcing the ADA and its implementing regulations on a national scale.”). Here, in contrast, it is EEOC—not CRD—that is entrusted with “direct enforcement authority” over the Title VII claims in this litigation and that “has an interest in enforcing” Title VII “on a national scale.” Id.

CRD’s reliance on Cameron v. EMW Women’s Surgical Center, P.S.C., 142 S. Ct. 1002 (2022), is equally misplaced. In Cameron, the state Attorney General’s right to intervene in federal litigation rested on its interest in “defend[ing] its laws” from the constitutional challenge posed by that litigation. Id. at 1011. Here, the parties assert no challenge, constitutional or otherwise, to the state laws CRD is entrusted with enforcing. CRD thus cannot show that this litigation usurps or otherwise implicates its interest in enforcing FEHA. See Alisal, 370 F.3d at 919 (prospective intervenor must show “relationship between the legally protected interest” and the litigation at issue).

2. Alleged impairment of CRD’s interest as a litigant

Unable to peg its claim for intervention to its statutory mandate to enforce FEHA, CRD pivots to a narrower institutional interest in “asserting the rights of . . . itself as a litigant” in the state-court action. Dkt. 47 at 8. But CRD identifies no law that provides CRD with veto power over the remedial choices offered to California workers whenever those choices might conceivably hinder CRD’s litigation of FEHA claims. To the contrary, in delegating authority to CRD to enforce FEHA, the California legislature conferred no right on CRD to reject or even review employees’ private settlements of state-law claims. Cf. Cal. Lab. Code § 2699(l)(2) (requiring parties to submit settlements regarding certain labor-law violations to the California Labor and Workforce Development Agency when seeking court approval).

CRD thus cannot claim an interest in the outcome of an individual California worker’s choice about how and under what circumstances she wishes to accept compensation for discrimination. This interest, as the district court found, “belongs to the individuals who might make claims under the claims process, not to [CRD].” 1-ER-89. A contrary conclusion, the court correctly reasoned, would allow for CRD “potentially to intervene in almost any employment action in California,” 1-ER-89, given that private settlements of FEHA claims also, of course, often release state-law claims in which CRD asserts an interest. This is not what Rule 24 contemplates. See Haw.-Pac. Venture Cap. Corp. v. Rothbard, 564 F.2d 1343, 1346 (9th Cir. 1977) (rejecting notion that intervention could be premised on ancillary effect that class litigation could have on intervenor’s ability to collect subsequent judgments against same defendant because “[l]ogically extended, the appellants’ contention would give the right to intervene in the class action suit to all persons with potential claims against any party in the class action suit”).

This is true even where the private remedial choices of California workers have an ancillary impact on CRD’s litigation interests. See United States v. City of Jackson, 519 F.2d 1147, 1152-53 (5th Cir. 1975) (rejecting argument that prospective intervenors met Rule 24 requirements where they alleged only that Title VII consent decree’s provision for some class members to voluntarily release their claims could reduce “the practical likelihood” that the prospective intervenors would be able to pursue their claims successfully through class action litigation). Such ancillary impact is instead “a natural consequence of the legislative judgment that federal and state remedies for employment discrimination both should be available to an aggrieved employee.” Brewer, 513 F.2d at 1225 (rejecting intervention despite the possibility that the federal litigation at issue “could produce a result inconsistent with a decision . . . that the [state] Commission may hope to reach in a parallel state proceeding”). Thus, CRD has no cognizable interest under Rule 24 in protecting its own litigation objectives by forcing individuals to recover in the state-court action only.

Moreover, as explained above, CRD’s assertion that the voluntary release of discrete state-law claims will gravely undermine its litigation objectives is entirely speculative. Supra at 40-42. CRD provides no basis to think that there will be significant overlap between the claimants releasing state-law claims under this consent decree (which extends nationwide and to both male and female employees) and the class at issue in CRD’s lawsuit (which is limited to female employees in California). 3-ER-482 at ¶ 8. And, even if some number of claimants did release state-law harassment claims in exchange for compensation under the decree, CRD fails to explain how this would compromise its prosecution of a class-wide state-court action, which extends not just to harassment claims but also other sex discrimination claims, including pay and promotion. 3-ER-497-501.

In contrast, the decisions on which CRD relies to support intervention, Dkt. 24 at 37-38, all concerned settlement agreements with a direct and immediate effect on the intervenors’ ability to pursue separate remedies, an effect not attenuated through the private choices of independent third parties. See United States v. Oregon, 839 F.2d 635, 638-39 (9th Cir. 1988) (clear that settlement agreement would “have a powerful and immediate effect upon the practical ability of the applicants to affect in later litigation the distribution of resources available for mental health” because of potential for stare decisis and because State had a finite sum of money available for remedies under Medicaid state plan that settlement could deplete); United States v. Stringfellow, 783 F.2d 821, 826-27 (9th Cir. 1986) (disposition of the main action would “as a practical matter, establish the remedial scheme” for hazardous waste disposal site and could have stare decisis impact on future litigation by area residents seeking removal of all hazardous waste), vacated on other grounds sub nom. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987); City of Los Angeles, 288 F.3d at 399-400 (intervention premised not on settlement agreement’s potential to undermine intervenors’ ability to obtain remedies in future litigation but instead on potential for direct conflict with intervenors’ rights under collective bargaining agreement); cf. Donnelly v. Glickman, 159 F.3d 405, 411 (9th Cir. 1998) (purported interest of male employees in ensuring that female employees’ Title VII harassment suit would not result in remedies that discriminated against men was too “tenuous” because such “possibility is not inherent in any of the requested remedies” for ending harassment against female employees); Fortune Players Grp., Inc. v. Quint, No. 16-cv-00800, 2016 U.S. Dist. Lexis 176031, at *3 (N.D. Cal. Dec. 19, 2016) (denying CRD (then DFEH)’s motion to intervene in federal settlement because uncertain concerns about potential impact of settlement on pending state-court action “do not rise to the level of a significant protectable interest . . . to justify intervention as of right”).

Even if CRD could be said to have some direct and protectable interest in shielding its state-court action from the remedial choices of California workers, any injury to that interest here is of CRD’s own making. This is because CRD expressly agreed with EEOC not to pursue an investigation of the very harassment claims that it now seeks to prevent California workers from releasing. See EEOC-SER 105-06 at ¶¶ 11-14 (explaining that CRD repeatedly agreed both verbally and in writing to a division of labor by which CRD would investigate sex discrimination claims related to pay and promotion and forgo investigation of harassment claims). CRD cannot now claim injury to its ability to litigate claims that it voluntarily chose not to pursue.

To the extent CRD argues that its own voluntary agreement to forgo pursuit of certain claims somehow violates federalism principles, Dkt. 47 at 28-29, the Supreme Court has rejected this argument. See Com. Off. Prods., 486 U.S. at 117 (rejecting the notion that voluntary deferral of certain charges by a state agency pursuant to a worksharing agreement could infringe on federalism principles, given that such deferral “is a voluntary choice made through individually negotiated agreements, not an imposition by the Federal Government”).[11] Given the resounding efficiency benefits of such agreements, id. at 117-19; Green, 883 F.2d at 1477-78, EEOC plainly acted reasonably in relying on the agencies’ agreement about how to investigate the allegations against Activision when negotiating the settlement in this litigation. Such reliance does not amount to wrongdoing on which CRD can premise its claim of intervention.

Nor can CRD stake its claim of injury on the purported evidence-destruction provisions of the consent decree or the potential for liability defenses in the state-court action. Dkt. 47 at 20-21, 34-35. The claim of evidence destruction is patently false, and the purported potential for liability defenses stems from the private choices of California workers to release discrete state-law claims in exchange for compensation under the decree, a choice in which CRD has no cognizable interest. Supra at 49-52.

3. Alleged impairment of CRD’s interest in protecting California workers

CRD next attempts to repackage its own litigation interests into a claim that it must “protect California workers” from the remedial choices offered by the decree. Dkt. 24-1 at 41. CRD’s concern is a paternalistic one: we know best how California workers should resolve their sexual harassment claims, and unless we determine that the voluntary settlement of their federal claims is appropriate, they should not be allowed to settle. This Court should reject it. It should also reject CRD’s other purported concerns for the well-being of California women because CRD’s attempt to impugn the consent decree as monetarily inadequate and contrary to public policy is entirely unfounded.

CRD first contends that California workers accepting relief under the decree would be releasing their claims for “inadequate consideration” because the decree offers victims mere “pennies on the dollar.” Dkt. 47 at 14, 31. CRD implies that victims could achieve greater relief in the state-court action, but no settlement or other relief is imminent in that case, and CRD may never recover any relief at all. The decree here offers victims certain relief now and the opportunity to move forward from discrimination without the potential stress of further litigation.

Nor is CRD correct that the $18 million consent decree offers a mere $1,800 per person recovery. Dkt. 47 at 33. CRD’s speculative $1,800 figure is premised on the claim that the consent decree “settles strong claims on behalf of approximately 10,000 individuals” (the number CRD cites as the size of Activision’s workforce). Dkt. 47 at 31. But this assumes that the decree resolves the claims of each and every member of Activision’s primarily male workforce when, in fact, as an opt-in decree, it only resolves the claims of those individuals (primarily female) who choose to participate in the decree and who have eligible claims for harassment, pregnancy discrimination, or related retaliation. See 3-ER-480 (CRD stating that Activision’s workforce is “only about 20 percent women”); What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022) (explaining that “the largest group impacted in [EEOC’s] case is women who experienced sexual harassment”). CRD does not explain its basis for assuming that each and every Activision employee was a victim of sexual harassment, pregnancy discrimination, or related retaliation during the relevant period, much less its basis for assuming that each and every such individual will choose to participate in the decree and be found eligible for relief. Contrary to CRD’s “10,000” claimant figure, EEOC has consistently anticipated that the number of claimants would be in the hundreds of employees, not thousands, EEOC-SER-19-20, and that has been borne out, see What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022) (noting that as of October 21, 2022, EEOC had determined hundreds of individuals eligible for awards after completing review of submitted claims and nearly completing allocation of settlement fund). Dividing $18 million by a few hundred individuals results in a dollar figure much higher than $1,800; if 400 individuals, for instance, the average would be $45,000.

CRD’s effort to show inadequacy by comparison to the Riot Games settlement rests on similarly imprecise estimates and inapposite comparisons. CRD touts Riot Games’ “100 million” settlement, asserting that the per-person average recovery for the 2,365 claimants was $42,200. Dkt. 47 at 33. This is fuzzy math. CRD’s calculation does not account for the approximately $20 million that went to counsel fees and various costs, 1-Supp.ER-86; EEOC-SER-20, meaning the average claimant recovery was approximately $33,827.

In any event, CRD’s apples-to-oranges comparison is unhelpful. CRD argues that Riot Games settles “very similar claims,” Dkt. 47 at 33, but it omits key distinctions between this decree and the Riot Games settlement. For example: (1) Riot Games was an opt-out settlement (unlike the opt-in settlement here); (2) although a pay-and-harassment-and-retaliation case, payments were based only on a formula tied to a claimant’s position and length of employment, without taking into account any harassment or its severity (unlike here, where EEOC’s payments are based on individualized assessment of each claimant’s answers to a detailed sixteen-page claim form); and (3) the Riot Games settlement conditioned relief on release of claims, without any option for paid attorney consultation (unlike the consultation provided here). EEOC-SER 19-20.

Moreover, CRD’s argument fails to acknowledge that the experienced district court judge here reviewed detailed information regarding how EEOC and Activision arrived at the $18 million settlement figure, EEOC-SER-23, 25, and then concluded that the settlement agreement was fair, reasonable, and adequate. 3-ER-629 (docket entry for R.82); see 1-Supp.ER-217 (district court judge saying “I’ve been on this Court since 2003. I’ve done many, many more class action reviews than I care to count[.]”). This Court should not disturb that experienced judgment based on CRD’s inflated and concededly imprecise calculations. Dkt. 47 at 32 (CRD’s admission that its figures may not be “precisely right”).

Nor is the option to release state-law claims in exchange for relief under the decree somehow unconscionable or violative of public policy. To the contrary, courts have approved EEOC consent decrees that contemplate the release of claims after consultation with private counsel, and such releases are a common feature of private settlements. See infra at 64 (EEOC cases involving release of claims). Nothing about the EEOC’s Regional Attorney’s Manual dictates a contrary result. This Manual—which does not confer procedural rights on third parties like CRD, see EEOC-SER-236 (Manual “shall not be construed to create any right to judicial review”)—makes clear that “[a] claimant represented by private counsel can agree to” such a waiver. 3-ER-522. And, here, the decree contemplates that any claimant considering whether to release claims will be guided by private counsel in making such a decision. Specifically, the decree guarantees all eligible claimants one hour of free legal representation from independent plaintiffs’ employment attorneys. 1-ER-21. CRD insists that this guarantee is not equivalent to “actual representation,” Dkt. 24-1 at 43, but it identifies no basis for thinking that claimants will reject the free representation provided to them by the decree.

Contrary to CRD’s claim, there is no reason to question the adequacy, independence, or expertise of the legal representation guaranteed to claimants under the decree. The attorneys in question are not employed by Activision; instead, eligible claimants can consult “a list of recommended plaintiffs’ attorneys” EEOC compiles or choose a different attorney. 1-ER-21; see also What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022). The fact that Activision pays the up-to $450-per-hour- rate associated with representation simply ensures that financial hardship will not deter potential claimants from receiving legal advice. This arrangement in no way violates relevant rules of professional conduct, cf. Dkt. 24-1 at 43 n.10 (claiming violation of Model Rule of Professional Conduct 1.8(f)), given that Activision does not direct the conduct of, or obtain confidential information from, the independent attorneys in question. See Model R. Prof. Conduct 1.8(f) & cmt. 11 (permitting payment of an attorney by a third party where client consents to arrangement, there is no interference with professional judgment, and information is kept confidential); Cal. R. Prof. Conduct 1.8.6 (similar).

Nor is CRD’s argument persuasive that one hour of consultation is inadequate. To the contrary, experienced plaintiffs’ law firms routinely budget 60-90 minutes for an initial consultation aimed at gathering all relevant information and background and providing legal advice. See Outten & Golden, The Initial Consultation, https://www.outtengolden.com/client-service/initial-consultation (last visited Oct. 31, 2022) (CRD’s counsel’s firm explaining that it allocates 60-90 minutes for initial consultation aimed at “gather[ing] . . . all relevant information, ascertain[ing] the client’s objectives, . . . [and] develop[ing] and analyz[ing] possible strategies and tactics”). Indeed, courts have approved consent decrees with similar provisions requiring defendants to pay for advice of private counsel for similar amounts of time or fees for claimants considering release of claims. See, e.g., EEOC v. Maurizio’s Trattoria Italiana, LLC, No. 18-cv-338 (S.D. Cal. 2020), ECF No. 30 at 6 (Defendant to pay $300 for one hour of counsel); EEOC v. Alia Corp., No. 11-CV-01549 (E.D. Cal. 2013), ECF No. 39 at 4 (Defendant to pay $500 for private counsel); EEOC v. Oceanic Time Warner Cable LLC, No. 1:18-cv-00357 (D. Haw. 2020), ECF No. 50 at 43 (Defendant to pay $250 for private counsel).

CRD also maintains that the independent attorneys will inherently be inadequate because they lack the “expertise” and “knowledge” that only “CRD could provide.” Dkt. 47 at 26. Indeed, CRD’s ultimate objection to the decree’s representation structure seems to be that independent counsel, rather than CRD, will advise aggrieved employees as to their remedial choices; CRD seems to insist that it—and only it—should determine whether an individual agrees to release state-law claims. See EEOC-SER-190 (detailing CRD’s efforts to dissuade Activision employees from retaining their own counsel in connection with the consent decree and to encourage them to instead contact CRD). But this ignores the very real conflict of interest that could arise between CRD’s litigation interests and the interests of individual claimants under such a representation structure. This is precisely why the decree provides for independent counsel. In sum, CRD’s claim that this comprehensive settlement agreement offering immediate and substantial relief to victims of employment discrimination somehow “sells short” California workers is utterly unconvincing. Dkt. 47 at 30.

B. CRD cannot show that EEOC inadequately represents any protectable interest CRD might possess.

For the reasons above, the district court correctly concluded that CRD lacks a protectable interest that stands to be impaired by the consent decree here. 1-ER-88-89. But this Court can also affirm on the basis that “existing parties adequately represent” any protectable interest that CRD might possess, precluding intervention as of right. Fed. R. Civ. P. 24(a)(2).

CRD argues first that EEOC, having “opposed [CRD’s] objectives and arguments” in this litigation, cannot adequately represent CRD’s interest in “ensur[ing] that the consent decree does not impinge on [the] state law claims” at issue in CRD’s state-court action. Dkt. 24-1 at 48-49. But, as discussed above, CRD does not have a legally cognizable interest in shielding its litigation objectives from the ancillary effect of California workers’ private remedial choices. Supra at 49-52. EEOC thus need not show that it agrees with or will advance CRD’s professed interest in forcing California workers to seek recovery only in CRD’s state-court action.

Instead, to the extent CRD has a protectable interest, it is in defending California workers from employment discrimination, and EEOC plainly shares this interest with CRD and adequately represents it. As the entity “entrusted” with “[p]rimary responsibility for enforcing Title VII,” Shell Oil, 466 U.S. at 61-62, EEOC should be presumed to adequately represent CRD’s interest in protecting California workers from employment discrimination. See Arakaki, 324 F.3d at 1086 (“very compelling showing” required to rebut “presumption of adequacy” that arises when “government is acting on behalf of a constituency it represents” or when applicant and existing party “have the same ultimate objective” (citations omitted)). While CRD argues that state and federal governments may have differing definitions of the public interest, Dkt. 24-1 at 49, CRD points to no way in which EEOC’s interest in protecting victims of employment discrimination diverges from CRD’s identical objective. Indeed, the agencies worked together for decades to efficiently eradicate employment discrimination.

Instead, CRD points only to differing strategic choices about how best to secure relief for aggrieved workers, but such tactical decisions do not suffice to overcome the presumption of adequacy of representation. See City of Los Angeles, 288 F.3d at 402-03 (mere “differences in [litigation] strategy . . . are not enough to justify intervention as a matter of right”); Perry v. Proposition 8 Off. Proponents, 587 F.3d 947, 954 (9th Cir. 2009) (finding mere “dispute over litigation strategy or tactics” insufficient to show inadequate representation where main party intended to “mount a full and vigorous defense” in the litigation but not “in the exact manner” prospective intervenors desired).

CRD next seeks to impugn EEOC’s adequacy by alleging a failure to “zealously prosecute[] the claims at issue,” Dkt. 24-1 at 51, or “demonstrate due diligence in reaching the settlement.” Dkt. 47 at 32. But CRD’s complaint that EEOC “settl[ed] on the same day it filed the complaint,” Dkt. 47 at 33, ignores the multi-year investigation and extensive negotiations that preceded the settlement. EEOC-SER-12 at
¶ 3, EEOC-SER-39 at ¶ 3. And, contrary to CRD’s claim that EEOC failed to “obtain[] adequate discovery,” Dkt. 47 at 32, EEOC detailed below the more-than 100 interviews it conducted and thousands of pages of documents it reviewed in connection with the investigation. EEOC-SER-12 at ¶ 3.

Nor did EEOC “decline[] to make any showing” to the district court about the calculations underlying the settlement amount. Dkt. 47 at 32. This is yet another inaccurate assertion by CRD. Instead, as CRD knows, the EEOC and Activision submitted these materials to the district court in camera, EEOC-SER-35 (submitting materials to allow the court to understand “how the parties settled on an $18 million fund”), and the court reviewed them before ultimately approving the consent decree. EEOC-SER-23.

Finally, CRD asserts that the district court lacked jurisdiction to approve the consent decree at issue. Dkt. 24-1 at 49-50. This argument is both a non-sequitur (as it has nothing to do with the inquiry into EEOC’s adequacy) and plainly incorrect (because it is premised again on the mistaken notion, supra at 18-20, that the decree itself “allege[s]” and “extinguish[es] . . . FEHA and other state law claims”). Dkt. 24-1 at 50. In any event, even if the decree itself did purport to release state-law claims with the same factual predicate as the Title VII claims alleged here, the district court would have retained jurisdiction to approve the decree. See, e.g., Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1287 (9th Cir. 1992) (federal court may release claims with identical factual predicate as claims asserted in complaint “even though the claim was not presented and might not have been presentable in the class action”) (collecting cases); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 748 (9th Cir. 2006) (same). CRD fails to make the required “very compelling showing” to overcome the presumption of adequacy here. Arakaki, 324 F.3d at 1086.

C. CRD lacks Article III standing to pursue the relief it sought in intervention.

It is well settled that a prospective intervenor of right under Rule 24(a)(2) “must have Article III standing in order to pursue relief that is different from that which is sought by a party with standing.” Town of Chester, 137 S. Ct. at 1651. CRD sought to intervene to obtain relief diametrically opposed to what Activision and EEOC sought: disapproval of the consent decree, a redundant fairness hearing, declaratory relief, and mandatory renewed settlement negotiations. 3-ER-446. Because CRD lacks Article III standing, supra at 37-43, it cannot pursue this separate relief and thus “may not intervene of right” pursuant to Rule 24(a)(2)..[12] See In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. Litig., 894 F.3d 1030, 1043 (9th Cir. 2018) (prospective intervenor could not intervene where he “lack[ed] standing for the relief” he sought that went “beyond what the United States sought in its suit”); Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d 1228, 1233-35 (9th Cir. 2017) (prospective intervenors could not “pursue different relief from that sought by” plaintiff because they lacked Article III standing). This Court can thus affirm the denial of intervention of right based on CRD’s lack of Article III standing.

D. The district court did not err by refusing to accept as true CRD’s conclusory allegations.

CRD argues that the district court erred by not accepting as true CRD’s “well-pleaded allegations” regarding the propriety of intervention. Dkt. 24-1 at 38, 46. But the general principle that well-pleaded factual allegations in an intervention motion should be accepted as true “does not mean that all statements in pleadings of this kind are to be accepted as true irrespective of their nature or content.
. . . [O]nly matters well-pleaded . . . are entitled to the preferential status of assumed truth. Conclusory statements are not.” Stadin v. Union Elec. Co., 309 F.2d 912, 917 (8th Cir. 1962); cf. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001) (requiring acceptance of “well-pleaded, nonconclusory allegations” and accepting as true a “well-supported declaration” asserting discrete factual propositions rather than legal conclusions) (emphasis added). Here, the allegations that CRD contends the district court should have accepted are all of a conclusory or legal nature or are belied by the plain language of the consent decree itself. See Dkt. 24-1 at 38-39, 46 (claiming that district court erred by not accepting CRD’s arguments that the decree “allow[s] or mandate[s] destruction of evidence relevant to litigation” and “impairs [CRD’s] ability to enforce FEHA, litigate its State Action, and protect California Activision workers” (citation omitted)). There is plainly no requirement to accept as true assertions in a brief that amount to legal conclusions or that flatly contradict the text of the decree itself.

E. The district court did not err by declining to conduct a duplicative Rule 24 analysis in connection with CRD’s second intervention motion.

CRD argues that the district court erred in its analysis of the second intervention motion because it “ignor[ed] the applicable Rule 24 standard in favor of an irrelevant Rule 60 reconsideration standard.” Dkt. 47 at 18. But this mischaracterizes the district court’s reasoning. Rather than overlooking the fact that “the two motions sought different relief with respect to different consent decrees in different postures,” as CRD claims, Dkt. 47 at 17-18 (emphasis omitted), the district court acknowledged that CRD’s second intervention motion sought different relief, namely, intervention for purposes of appeal. 1-Supp.ER-3. The district court reasoned, however, that this second motion raised identical arguments to the first, given that CRD did “not argue that the standard for intervention on appeal is different from the standard for intervention prior to judgment or that [CRD] somehow has a greater interest in the case on appeal for Rule 24 purposes than it had prior to judgment.” 1-Supp.ER-3. Thus, it was plainly appropriate for the district court to rest on the reasoning of its earlier decision rejecting CRD’s identical arguments, 1-ER-88-90, rather than considering these identical arguments anew in connection with the second motion.

Indeed, CRD does not actually articulate on appeal any new argument it pressed in its second motion that the district court failed to consider, such that the purported failure to re-analyze the “applicable Rule 24 standard” was somehow prejudicial.[13] Dkt. 47 at 18 & n.6 (disclaiming that CRD raised new arguments in second intervention motion). Nor does the fact that the second intervention motion pertained to the final version of the consent decree rather than the initial version suggest that this motion required separate analysis. Cf. Dkt. 47 at 18 (emphasizing that second motion concerned the “second amended consent decree” rather than the “initial September 2021 consent decree”). CRD does not identify any way in which the two versions materially differ, especially given CRD’s assertion that none of the amendments “resolved the concerns that [CRD] had raised.” Dkt. 24-1 at 24 n.5.

III. The district court did not abuse its discretion in denying permissive intervention.

Rule 24(b)(1)(B) provides that “[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).[14] “Even if an applicant satisfies those threshold requirements, the district court has discretion to deny permissive intervention.” Donnelly, 159 F.3d at 412. “Permissive intervention is committed to the broad discretion of the district court,” Cnty. of Orange, 799 F.2d at 539, and this Court rarely disturbs the district court’s discretion, see Dep’t of Fair Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 742 (9th Cir. 2011) (“[A] denial of permissive intervention has virtually never been reversed because of the considerable discretion afforded to district courts.” (quoting AT&T Corp. v. Sprint Corp., 407 F.3d 560, 561-62 (2d Cir. 2005)).

Here, the district court concluded that CRD met the threshold requirement of a claim sharing a common question of law or fact with this litigation but nonetheless exercised its considerable discretion to find permissive intervention inappropriate. In doing so, the district court emphasized that CRD was “not seeking to intervene in order to raise those claims” on which commonality was premised; instead, CRD was “litigating them in state court regardless of the outcome of this case.” 1-ER-89-90; see 3-ER-463 (CRD confirming that the common claims are those in “[CRD’s] pending enforcement action”).

It was well within the district court’s discretion to find permissive intervention unwarranted where CRD sought to litigate the common claims in a different forum rather than as part of the same litigation in which intervention was sought. Indeed, “[t]he primary focus of Rule 24(b) is intervention for the purposes of litigating” common claims or defenses in the main action to promote efficiency and judicial economy by “dispos[ing] of related controversies together.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992); see Sec. Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995) (“Perhaps the most obvious benefits of intervention . . . are the efficiency and consistency that result from resolving related issues in a single proceeding.”). There is no such benefit to efficiency or judicial economy where, as here, the intervenor seeks to litigate common claims as part of a separate action.

Moreover, CRD’s intervention would have “unduly delay[ed] or prejudice[d] the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). Granting CRD’s intervention motions—which sought, inter alia, additional hearings and renewed settlement negotiations, 3-ER-446—would have delayed provision of comprehensive monetary and injunctive relief to victims of employment discrimination, including victims outside California who could not under any circumstances recover under CRD’s state-court action. See Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 658 (9th Cir. 1978) (“[C]ourts have emphasized the seriousness of the prejudice which results when relief from long-standing inequities is delayed.”); see also 1-ER-86 (district court denying CRD’s stay motion on basis that it would create delay in providing “the immediate relief set out in the settlement,” including “injunctive relief against further violations”). The district court’s broad discretion to deny permissive intervention should not be disturbed.

IV. CRD’s failure to comply with Rule 24(c)’s pleading requirement provides an alternative basis to affirm the denial of intervention.

Rule 24(c) requires that a motion to intervene must “be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Fed. R. Civ. P. 24(c). Here, CRD never filed such a pleading, despite EEOC’s objection to CRD’s failure to do so. 3-ER-403.

While this Court has approved intervention without the pleading required by Rule 24(c), it has done so where the intervenor described the relief sought “with sufficient specificity” to avoid prejudice to the parties. Beckman, 966 F.2d at 475. Other courts have similarly relaxed this procedural rule only where the lack of a pleading was “inconsequential,” Piambino v. Bailey, 757 F.2d 1112, 1121 (11th Cir. 1985), or “non-prejudicial,” Spring Constr. Co. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980); see also Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 595 (7th Cir. 1993) (permissible to accept procedurally defective motion “if no prejudice would result”).

Here, CRD has not—either in its briefing below or on appeal—described the relief sought with sufficient specificity to avoid such prejudice. Instead, CRD has articulated its goals underlying intervention in vague and contradictory ways, making it impossible to analyze with precision what relief CRD seeks to obtain. For example, CRD has asserted that it seeks intervention only “for the limited purpose” of commenting on and appealing the consent decree, Dkt. 24-1 at 11, but conversely stated that it seeks intervention for the broader purpose of requesting a fairness hearing, conducting discovery, and seeking an order that EEOC must coordinate with CRD in settlement discussions, 3-ER-446; Dkt. 10-1 at 26. CRD has stated that it does not seek to litigate any claims in connection with the federal action and that EEOC will “retain full control of its own case pursuing federal claims,” 3-ER-446, but conversely averred that if granted intervenor status it would “involve[]” itself “in the federal action [by] monitoring the litigation to ensure that the State Action is not obstructed,” Dkt. 47 at 35-36. In the face of these confusing and contradictory statements, the failure to include the pleading required by Rule 24(c) becomes more than just a mere technical defect and instead constitutes an independent basis to affirm the denial of intervention. Cf. Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 314 (6th Cir. 2005) (denial of intervention based on Rule 24(c) inappropriate where “neither party ha[d] ever claimed that any prejudice would result” from non-compliance because “the parties [were] clearly on notice as to [the prospective intervenor’s] positions and arguments”).

CONCLUSION

For the foregoing reasons, this appeal should be dismissed for want of jurisdiction. In the alternative, the district court’s orders denying intervention should be affirmed.

STATEMENT OF RELATED CASES

Jessica Gonzalez, a former Activision employee, has filed a notice of appeal from the district court’s orders denying her motion to intervene and approving the consent decree in the same district court proceedings at issue here. See EEOC v. Activision Blizzard, Inc., et al., Case No. 22-55515.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIfer s. goldstein

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s/ Chelsea C. Sharon

CHELSEA C. SHARON

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity
Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2889

chelsea.sharon@eeoc.gov

October 31, 2022

[1] The agencies’ agreement did not address investigative responsibility for pregnancy discrimination. R.35-2 at ¶¶ 13-14.

[2] CRD claims that EEOC did not adhere to its internal policies on obtaining Commission authorization for litigation. Dkt. 24-1 at 24 (citing internal EEOC resolution). It is unclear what point CRD is making with this contention; its argument on appeal is that it should have been allowed to intervene in the lawsuit, not that the lawsuit should have been dismissed. In any event, EEOC’s internal voting procedures are only meant “to aid the Commission in the orderly and effective exercise of its judgment.” EEOC v. Route 22 Sports Bar, Inc., No. 5:21-cv-7, 2021 WL 2557087, at *5 (N.D. W. Va. June 22, 2021) Accordingly, internal agency policies like this resolution have been held not to confer procedural rights on third parties like CRD. Id.

[3] CRD misleadingly asserts that “any unclaimed amount” of the class fund will “rever[t] to Activision.” Dkt. 24-1 at 23-24. However, the consent decree instead provides that if any funds remain after the claims administrator distributes funds to all eligible claimants, EEOC will have the discretion to allocate those funds to two sources: a cy pres fund for distribution to charitable organizations or Activision’s Diversity and Inclusion Fund, dedicated specifically to diversity and inclusion efforts in Activision’s workplaces above and beyond its existing obligations under the decree. 1-ER-23-24.

[4] In addition to considering CRD’s objections, the district court also heard and rejected objections from the Communication Workers of America and denied a motion to intervene by former Activision employee Jessica Gonzalez prior to approving the consent decree. 1-ER-84; 1-Supp.ER-165, 185-86. Ms. Gonzalez appealed the denial of intervention, Case No. 22-55515; this Court denied Ms. Gonzalez’s motion to consolidate her appeal with CRD’s appeals. Dkt. 55.

[5] References to “Dkt. at *” refer to filings in the lead case, No. 22-55060, and the ECF-stamped page number at the top of the page.

[6] CRD asserts in passing that as intervenor it would seek to assert argument “at a new fairness hearing”, Dkt. 24-1 at 53, but CRD does not explain how such a hearing would differ from those the district court already held where CRD participated. 1-Supp.ER-162, EEOC-SER-2. To the extent CRD is referencing the mandatory fairness hearing procedure contemplated by Rule 23, such Rule 23 requirements are not applicable to EEOC Title VII consent decrees. Gen. Tel. Co., 446 U.S. at 323.

[7] While CRD is correct that amicus status can differ from intervention status because the former “does not allow the [litigant] to raise issues or arguments formally and gives it no right of appeal,”City of Los Angeles, 288 F.3d at 400, CRD identifies no additional formal participation rights it seeks here as intervenor, and CRD could not appeal even if granted intervenor status for the reasons stated above. Supra at 31-34; see United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 993 (2d Cir. 1984) (recognizing that intervention and amicus status can differ but considering “how nearly an [intervenor’s] interest could have been accommodated” by amicus participation).

[8] CRD also notes that Activision has used the decree as a basis to claim that certain injunctive relief sought in the state-court action is moot. Dkt. 47 at 20. But CRD does not seek to alter the consent decree’s injunctive relief provisions and thus any injury stemming from these provisions would not be redressable by the relief CRD seeks.

[9] Courts have approved EEOC consent decrees containing such anti-retaliation provisions. See, e.g., EEOC v. Cardinal Health 200, LLC, No. 5:19-cv-00941 (C.D. Cal. May 21, 2019), ECF No. 90 at 7 (requiring defendant to “remove” from employment records “any records of negative performance actions including discipline and terminations that the EEOC reasonably believes are related to the allegations in this Action”); EEOC v. Kimco Staffing Servs., Inc., No. 5:19-cv-01838 (C.D. Cal. Sept. 25, 2019), ECF No. 59 at 9 (requiring defendant to remove from charging party’s personnel file any references to charge of discrimination or participation in suit).

[10] While CRD complains that the decree does not specify “how [CRD] may obtain the original records in discovery in the ongoing litigation,” Dkt. 24-1 at 45, it would be odd and inappropriate for a settlement resolving litigation between EEOC and Activision to delineate discovery rights CRD might have in its separate state-court action.

[11] CRD suggests that even pursuant to this agreement it could not have “ ‘ceded authority’ to the EEOC to pursue its California harassment and retaliation claims” given that EEOC, as a federal agency, “lacks authority to assert claims under state law, regardless of what the state agency does.” Dkt. 47 at 29. But EEOC is not arguing that the agencies’ agreement gave EEOC authority to litigate state-law harassment claims, just that the agreement envisioned EEOC pursuing federal harassment claims, while CRD pursued separate state-law sex discrimination claims. This division of labor made sense given the limited resources of each agency, as it avoided duplicative investigations into the same facts. CRD also falsely asserts that a recent decision in the state-court action supports its position. See Dkt. 47 at 29 (claiming that state-court decision held that the agencies’ “division of labor had no impact on the litigation authority” and that CRD “could never relinquish its authority over [state-law] claims to the EEOC”) (quoting Dkt. 49-3 at 8). But these quotations are from the state court’s summary of the arguments made by CRD, not from the court’s independent findings. Dkt. 49-3 at 8. The court’s independent findings address only the scope of the agencies’ overarching worksharing agreement—which did not address how to divide labor with respect to the allegations against Activision—and not the specific agreement about how to handle the Activision allegations. Dkt. 49-3 at 12-13 (declining to consider evidence of this more specific agreement on evidentiary grounds).

[12] EEOC argued below that CRD was required to show Article III standing and had failed to do so, 3-ER-397, but the district court did not address this issue, 1-ER-88-90, 1-Supp.ER-3-4.

[13] In connection with the second intervention motion below, CRD advanced a separate argument that EEOC failed to comply with purported mandatory presuit conditions under Title VII. 2-ER-105-08. CRD does not press this argument on appeal and it is therefore forfeited.

[14] On appeal, CRD seeks also to rely on Rule 24(b)(2), which addresses permissive intervention by government officers or agencies. Dkt. 24-1 at 52. CRD, however, never raised this argument below, and it is therefore forfeited.