intervene in this case and it's a very important motion for a lot of people in the state of texas the case the underlying case the main case in iowa why is it important for defendant in this case is the texas alcoholic beverage commission in three of its commissioners the defendant is not the state of texas as the case is currently postured and that's  critically important point and one that the district court just drove past so that again now why are they not representative of the state of texas as far as their l of regulation is concerned well first of all they aren't state of texas they are in an agency a commission of the state of texas that they are not sovereign europe but as a practical matter the real answer to your question is  theory is the regulating commission the regulator that is empowered to enforce the regulations of the state of texas under the statute the statutory construct it is not the state and it does not have the same broad interest as the state it is the regulator and in this situation the permit holders the t p s not lame state laws are saying i'm sorry it's of the person obviously i mean i'm not suggesting that but i'm just saying i'm the state of the state of texas and just seem to be represented in and that it would be important if you still wish it is important for you to jump in and to represent essentially those same interests or maybe they are not representing all of your interests and that's what i want to hear about why did i not yes as i'm as a matter of fact we don't have the t s a does not have the same interest as the state of texas generally and i didn't mean to suggest that what i want to suggest to the court that this this case is important for the members of the t p s and for the all the package store permit holders in the state of texas which are fairly recent texas versus united states opinion where the court said when you're dealing with the intended beneficiaries of a law they have an interest in that and a stake in the litigation and that is precisely what the members of the t p s say are we are the intended beneficiaries of the statutory framework that is under attack we are the ones that  graphically represented in the pleadings in this case in wal mart's pleadings wal mart the very premise of this whole lawsuit by wal mart is to say that the statutory structure is protectionist and it's protectionist in violation of the constitution well that right begs the question protectionist of who it's not protectionist of the t a b c if it's protectionist in the way they played this case they wal mart says it is protectionist of the current liquor package store permit holders the p p m holders in the state of texas which are our members the t p s from two b s a members and so we are the people the your we are the the the people that wal mart says these are their direct competitors they plead that that the t p s may members are the direct competitors it's the direct competitors that they're going after in this lawsuit and what wal mart wants to do and wants to suggest to the court ought to be done is that it is in the interest of justice for wal mart to attack decades old statutory structure for the regulation of alcohol and liquor in texas for its be and it gets to be heard in that major lawsuit but it gets to keep out its direct competitors the people that are actually the ones with the direct interest in that stature chord structure and they don't get to get hurt ok and that was so important did we did we absolutely knew that we that there was some interest in this lawsuit but here's the here's the real issue with the motion to dismiss the law is not that you can leap into the case just as soon as you know that there's a case that there you may have interest in the lawyers in this area is very clear there there should be an intervention when you know your your interests are not being protected and only at that point otherwise it's a waste and the calculation was made which i think is a correction you're correct one that when the state negotiated for a lengthy time in which to file and have considered a motion to dismiss and twelve the six motion there was nothing happening in this case that was going to affect our protectable interest until that motion was disposed of ok and mark why did that change the same i'm sorry i did that change is seen as far as your granted and the case was going to then therefore move forward on the equal protection complaints and on the commerce clause complaints that's when we knew we needed to get in this case you can't you can't claim  interests are not being protected and that has happened in dozens of reported courts changed ok what changed for the ability of the state of texas to protect your interest in time the lawsuit was filed and the time the motion to dismiss was rude it didn't have anything to do with the ability of the t a b c and bear in mind it's not the state of texas your honor it is the t a b c who is the defendant in this case the t a b c was no more at no more adequately represented our interests from day one than they did after the motion to dismiss was ruled on maybe i'm missing something but doesn't affect concede that you should have filed but there'll be no absolutely not our point about the motion to dismiss is this it's that we did not need to get into the case if that motion to dismiss was going to be granted it would have been a waste of your time and judicial resources for us to intervene to sit and wait while the motion to dismiss is being considered and ruled on any evidence that that was in fact your motive i mean because i mean what you have described is a lot of this is could be cataclysmic as far as your client is concerned and that existed it was kind of how it changed your interest in your awareness i mean obviously you were aware of the importance of this case from the beginning you said that absolutely we were aware of the point of it is that you don't move to intervene in cases like this until there is a that governmental entities particularly where they are the regulators and we are the regulated governmental entities do have a broader set of interests and they do not have identical interests to the pr it's not that they're not adequately representing there is a very good example to be feet yes there is a very good example of in this particular case that has already appeared and by the way it's not that it has to you have to show that we have to show there is an example it's the standard is there might be an adequate representation but there already is a great example and that is the hotel exemption one of the things that affect it is the heart of this case that wal mart is saying the public there is a ban in texas right now against a publicly held corporation having a package or permit that is the primary statute that is under attack because that's the statute that's sets up at the absolute board of wal mart having  that there is also a statute in texas that gives hope hells even if they're publicly held hotels publicly held in the days the ability the an exemption from a package store operates actually not what it was originally it turns out it's archaic and a historical accident still in the law but what it was original looks like it was intended to do was to allow hotels to actually have to sell  to sell liquor by the bottle in the hotel decades ago in fact there are no current p permit holders that are also hotels but my point about it is this is an example of just an enormous example the t p o say has no interest in defending the hotel exemption none we think is archaic anachronistic it shouldn't it should have been play no role in the litigation of this of this case they're going to take on that because we haven't quite got that far on the timeline given that the district court appears to may no conclusion on the timeliness for intervention as a matter of right what is our standard view for the tim the decision on that point as a matter of law that the court believes needs to be made that would be different for permissive interview want to be permissive it's different and different from the right and they have to be analyzed differently that completely differently even though th under a permissive as a matter of right to you what if the facts are not there for us to decide the time when it's part of that's a right actually under a you take the record the way it is now and you review it unless this court believes it needs a more developed record which i don't believe it does for a because here's what under timeliness your honor it's not it's not why we're waiting that matters that is not remain here if you find that prejudice has not been shown then you rule and you say prejudice has not been shown you don't send it back to say we'll take another stab at it and try to show prejudice and what what you find if you look at this record is there has been no prejudice shown none and that's what i would challenge the court to find if between the gap of august seven when the state answered and this case started and november eighteenth that time period is the relevant time period for time and that's what prejudice occurred to wal mart during that time period and there is none on this record that be argued b p had worked out several agreements in terms of confidentiality agreements and the kind of material that they would furnish but now they would have to renegotiate with you if you're renegotiating with a competitor that counts as a friendly question your honor and here's what yeah they if they agreed to a protective order and if you read their briefing they say oh we negotiated renegotiated made it sound like oh my god this was this was something else this is a great protective order you know what this agreed protective order is it is the form protective order for the western district of texas that was agreed to it has no changes with respect to the confidentiality provisions it changes one word with respect to how you challenge a designation and it adds a few sentences with respect to the clawback procedure at the end so there's no waiver that's that's the incredible prejudice they'd have to go back and re enter a new form order from the western district to texas and that's what's at the the point about that your honor is to say please read these that the briefing in this case with a close eye because you will find things like that throughout the briefing there was a scheduling order there had been one round an initial round of discovery propounded hadn't even been responded to yet no depositions taken not one document had been produced in the case no expert reports were due force two or three four  do this i will take a quick look however the i would like to say one thing make one point here and thank you for the opportunity this this court has as far as where the we have an interest that's protected we'll hear this court has already decided that it was it was decided this year it was decided and could prefers to see the court decided as a matter of law that the t p s say actually had article three standing with respect to the statutory structure and frankly between that and judge all roger opinion of the texas versus united states case this the jur prudence on this whether we get into this case is done it is standard operating procedure since decades ago that in this kind of litigation trade associations that are beyond the beneficiaries of the statutory framework that is being challenged get to get in and be heard the new york case this court cases are an american the general principle is that economic that relevant it's relevant it is not relevant in in this sense just simply stating that economic interests alone are not sufficient is really not what the standard is that language comes out of intervention is allowed an economic interest component is a big deal it matters what i would suggest to the court is what they were saying and not see where that language was used was really a distinction between direct economic interest and indirect because a knob see what you had the parties to a contract commercial contract the sale of and energy those parties were in the case that's what was being argue about that contract and then citizens who were buying from one of those contracts and parties wanted to intervene and the court said that economic interest the interest in the pricing or the rights that you're going to get under their contract is not enough question assuming that that is the law how is that relevant to your interests now cannot interest of them economic we have an interest in having the p permits under the current process under the current structure and the key component of that is we have people turn minutes without publicly traded corporations them with that is a huge huge benefit that's not an economic well it's both it's a combined in benefit and but what that the main point i'd like to say is it is standard operating procedure for trade associations in this country to be in these cases to be heard ok thank you mr waldron you mr kaplan represent and wal mart they please the court there are three independent grounds on which this court said affirm the district court first the court properly can affirm on adequacy grounds alone the state of texas through the t a b c and its commissioners sued in their official capacity are acting in a sovereign capacity and are vigorously defending the chalan statutes the state has the same ultimate objective as the t p s say which is to preserve these challenge that seems to preserve the status quo and there is no adversity between them second the district court correctly determine the t p s a does not have a legally sufficient interest and third the court did not abuse its discretion and that is the correct standard overview your order in finding that the motion to intervene was untimely but he didn't find that on the intervention that's a matter of right of the court's order your honor i disagree the courts the court's order addressed three elements in a sequence it first addressed whether there was sufficient interest then adequacy then addressed time of us which is a factor of both for intervention as of right and permissive intervention and there is no requirement the court addressed the same standard twice and i it's a tremendous disadvantage because it didn't have the benefit of our opinions in cooper which said there's a direct economic interest here not an indirect one and it also didn't have the meaning to our opinion an interview that says that we don't assume that these agencies are sovereigns and so the court didn't get to address those things and it's not the court's fault that we had an issue those opinions yet but although i would like to suggest to the court today that the district court's opinion is nonetheless correct in both respects both with respect to cooper and entergy i'll start with the adequacy of the entertain issue your honor both of this court's presumptions of adequacy apply in this case the government language from this court's decision in edwardes versus city of houston and what the court says is that the government presumption is restricted however to those suits involving matters of solvent interest in the edwards case the court held that presumption didn't apply because the city of houston was functioning as employer not a solid which makes sense in the entergy case the government there was a reverse foyle case the government is acting as the record keeper in a dispute between the sierra club essentially and entergy the government is not acting as a sovereign capacity here however there is a challenge to the constitutionality of statute passed by the legislature the government is acting in a quintessential was not a heavy burden to stand with us in minute intervention as a matter of right and did the parties right to argue for those benefits that they might not even be entitled to as a matter of law w independent enough to that they should have the right to come on their own rather than be represented by the united states which are very formidable and bigger if advocate why is why shouldn't be these parties have the same right with regard to this hotel with them soon and other things that they may have a more nuanced approach that supports their competitive position that the state may not have in texas your honor and in the rest of this court's cases where the court has found the adequacy presumption rebutted our situations in which there is adversity in texas first states in your opinion for the court you found that there was direct adversity that was a quote directly adverse because in that case the federal government made an argument to try and defeat the state standing at the states didn't have to issue driver's licenses and the court made that point expressing that that was a direct conflict that was directed versity but even if there hadn't been it i think it's that it was already that they had an independent thing to try to even if they hadn't actively that were not going to go for the driver's s his argument is that it can make a more focused offense because it doesn't have to argue or defend the hotel exception but a more focused defense is not a different ultimate objective and that is the standard different ultimate objective and it certainly is not adversity like in the heart of the case your honor where the proposed intervenors in that case said well that the state and the university have broad objectives that they need to defend with respect to admissions policies and serve various constituencies whereas we the interveners we want to come in and just  end the narrow interest of remedying past discrimination and this court said that was insufficient because they had the same ultimate objective and on this point on the hotel exception we cited a case from the fourth circuit called stewart  just of historical interest when this court adopted the same ultimate interest test it adopted it from the fourth circuit and the fourth circuit skit and that is in the duncanville case from this court in the fourth circuit case and stuart of the huff judge wilkinson running for the panel in a very case challenging abortion restrictions the court says that the appellate argument the interveners is that there are a class of beneficiaries protected by the act that their interests are stronger and more specific is much stronger more specific interests do not adverse interest m and they surely cannot be enough to establish an advocacy and on the hotel exception your honor this is not a hotel case wal mart doesn't own hotels doesn't operate hotels we're not challenging the constitutionality of the hotel exception we're challenging the rule which it is the exception it's only relevance is to the extent it bears on the legislature's intent in excluding public corporations do you dress who plays i'm sorry go cooper point yes why they're in direct state and take in the outcome of the case it seems it's the same statute our court has said it has a direct stake in the outcome yes your honor aleksey they have a direct stake in this case in cooper too that the court addressed the question of article three injury in fact for purposes of a rule sixty b motion the inquiry for article three standing is not the same as the inquiry for rule twenty four interest will twenty four interest is minor well i don't think that's quite right mate i don't think that's quite right i think in some cases it certainly is in some cases it's not i think that in actuality the standards are different and what consistently you see through this court's cases about interest is an interest of a nature that is quite different than the interest here voting rights in finch in the lulac versus bernie case property rights india as in and asked me the right to equal protection in government employment that's edwards in the black firefighters case due process interest in child rearing in obtaining government benefits of and that's the brumfield case avoiding deportation as a direct result of the litigation in texas versus united states in all of these cases the judgment in the litigation would have a direct concrete impact on the interveners the outcome was either they would get a government benefit or they would not solely as the result of the litigation the t p s a's interest here is not as direct or concrete as the interest of an alien seeking deportation or of a pa trying to get a voucher for their child it is an indirect effect based on secondary market consequences what it seeks in this case i don't understand how you can say that given cooper which says they the statute entitles members of an industry to reduce competition that is what they have they have reduced competition whether that's good or bad in the grand scheme of free markets is not our quest today they have reduced competition that is something they have yet why isn't that just as protectable i mean the fact it's not constitutional all of these other things that some of these people didn't even have const you know standing in fact and in this is standing in fact on reduced and so even though they don't satisfy ripeness or immanency concerns for article three they have a protectable interest for purposes of rule twenty four that's not the case here because this court has said that a mere economic interest is insufficient for intervention and that's the and there is no question judge ali that the interest here is purely economic and they were unabashed about that in the district court they told the district court that if wal mart's relief is granted that it will unavoidably harm the business and substantial investments of the  lose any rights under their permits they will not know aspect of their operations has to change but what they will face when in cooper has again the cooper inquiry is different your honor is they article three standing question it doesn't address the rule twenty four inquiry and i think although it's a case that's not cited in our brief your own or there is a opinion from judge posner that i would cite to the court were for the seventh circuit were judge posner makes the point which is that the real point for standard is different and th policy goal the court has said it should be liberally construed but nonetheless there are there are elements that have to be established and including that it can't be a miracle maybe it's not supposed to be like i'm sorry or the fixed rule sixty is not supposed to be lenient i don't think that's i mean that's the one guarding the gate way and one is the end letting people come in but the article three injury in fact standard your honor is not supposed to be lenient but it is the supreme court for example in the environmental cases and friends of the earth versus labor has said that if you put in half an affidavit that you recreate at a park or used to fish at the park as a boy and you like to do that park you have standing to come in and file a citizen suit under the clean water act no one would think those that interest that a static interest in the preservation of the environmental quality sufficient to intervene in the case but if the court equates which it has never done the court has never squarely held that article three standing automatically gives you the right to intervene un twenty four and i think that would be unwise for that reason there's a whole class of people that might be able to satisfy the article three test that would necessarily satisfy rule twenty four when they don't have a significant protectable direct interest as in this case days after the t p s as motion to intervene was filed and as the court i think would certainly recognize that doctors have to be reviewed and prepared in advance of the data produced in these the production in this case included substantial volumes of confidential business in order to ready them for production and it is the form protective order in this case out of print you to shoot the fact that you've already done back you have to be reviewed your honor and read designated for confidentiality because now they are not in the hands also we presented the district court with argument with respect to the orderly progression of the case in a case like this contention related discovery was critical we needed to know what the state's arguments were for  and there are several thousand documents that have been produced including voluminous databases we need to be reviewed to determine the appropriate marking of those documents and the protective order to ensure that proprietary business information is not in the hands of a competitor  secrets well there's a substantial amount of discovery surrounding wal mart's pricing one of the states arguments is tried is that wal mart would reduce pricing and so there's a limit as pricing to out of this been produced in business strategy documents related to  can show incredible prejudice of course incredible prejudice is not the standard the standard is prejudice it doesn't even have to be incurable prejudice it is simply prejudice the district court did not abuse its discretion and abuse of discretion is the correct standard your order because the court cited the sta factors which is all this court has said is required for the deferential standard of the view to apply and if there were any doubt judge all right about whether the finding on timeliness was made in the context of permissive or mandatory intervention i think that  completing discovery been set up in the schedule in the order and yesterday and from your point of view it won't be how can strong group was allowed to of which was served in early october so more than six weeks before they moved to intervene and we can supplement the record on that point but our expert worked on the basis of that contention discovery that was received and he but there were months every couple of months  he could have held up or said anticipated these people are in there then what's the result but it was after you knew that you were in or trying to intervene before the expert produced  report and all that was well known for a couple of months at least well they moved intervening on november eighteenth right order and at that point we would have first had to serve discovery on them if they were permitted interview and we would have had to wait to receive the discovery and it would have it would have  discovery and that caused the schedule to have to be extended so i think the court may has is entitle to deference that is the appropriate standard of review and made a reasoned judgment that their intervention at the late date that it came would have prejudiced the orderly progression of the or is improperly interpreted and applied the courts have recognized that the interests of those who to support intervention or i think if the court looks right miller you will see the circuit court cases from around the country on the question of interest are all over the bow and right miller that statement doesn't explain many of the cases around the country on interest there is a dispute among the circuits as to what's a sufficient interest but what this court has said in the nazi decision is that a mere economic interest is insufficient and then all the interest cases that are discussed that involve voting rights direct government benefits interest people hurt their small business owners have a mom and pop small business argument i'm not saying that i agree with that that's their argument i understand your honor but that is a purely economic honor the other argument they point to is that the state has not made an argument about protecting small business which is incorrect the state has identified that argument as the district court found in the record at page four seventy nine to four ninety four in its contention  and indeed the state made very similar arguments in its motion to dismiss that and the other put the state argued that the legislature may have been motivated by a desire to avoid discounting or price reductions and to avoid the alleged dangers of domination of retail establishments by economically powerful interests that's record one zero four that's the state's motion to dismiss now it was in fairness in the context of an overall argument about temperance  restricting access to alcohol but it shows the narrowness of this dispute this is not a dispute about the different ultimate objective what he's not going to just start about ethie with respect to the interest question s b the court decides the interest question as a property right and says there are property rights in existing contracts with the government and in fact in texas first united states this court described s b as the element a case involving property rights but a mere economic interest that the government must represent the broad public interest that there was a record of evidence of adversity because the government agreed to apply the injunction in that case more broadly than was required i thought that impromptu we said we don't have to we can't say for sure that the state's more extensive interest will in fact result in an equ inadequate run present but they might and so so so they don't have to show that the state is actually failed to represent them they just have to i ledge that i might point your honor in brum tell the court again found adversity contrary positions in brumfield the state conceded that the federal government had jurisdiction over the voucher program whereas the parents the proposed intervenors disputed that that is the consistent line that runs through this court's cases where the ultimate objective presumption is found it is that there is a diversity and with respect to whether this may be where they have to make a stronger showing i would urge the court to look at the on bank decision in city of houston versus edwards were at the end of the court's adequacy analysis the court says the other point  grunfeld is the court found neither presumption applied so it's a different case where both presumptions applied but in edwards the on ball court said because both presumptions don't apply he therefore resort to the lower standard of maybe where the unique to the trial though you don't what you can do is you can look at the facts the way they appear in the record and that's all that matters the problem here is kind of found it didn't it didn't need you yet the district court doesn't deny you're out to know but what we do know is a couple of things one is the burden on the litigation because of the intervention if the image intervention is proper as a matter of right in the rule twenty four the burden of the litigation is not a relevant inquiry or it's just not because when you have a right to intervene you have a right to intervene and what happens in the litigation after that happens and so when they protest wal mart protest oh it's going to delay the trial that's going to do this that is not after the scheduling order was entered in october of two thousand and fifteen and the there were as usual there were extensions of the discovery deadlines as a case for moving forward i mean they say they've already filed bob jones of documents and the trial in this case eighteen months at least when you say well i've got two points about that number one it doesn't matter for twenty grew twenty four an intervention in my right it does not matter if we're entitle to be in the case what the burden to the litigation is but the second thing is more practical answer here on this is wal mart so largest retailer in the world they operated under this structure since one nine hundred seventy five in texas they've operated for forty years they've operated under the corporate the publicly public corporation band for over twenty years and they finally decided that they want to attack you to do something about it wal mart is not going to be prejudiced by having this litigation last as long as it needs to last they will not suffer prejudice what the people competition to drive your prices down where you absolutely use your arm because the reality is that they can say oh there's not going to be anything happen not now but that's what they want to do that wal mart wants to come in and take this market and they will come in and take a sizable piece of the market if they come in they will it's what they do and we're going to prove that with more much as a whole this is not going to be any big deal that's nonsense you go to fredericksburg texas and you'll find that there are five package stores there's also a wal mart super center and when that wal mart supercenter starts acting as a package store not one of those package stores in fredericksburg texas is going to survive but let me tell you your honor that is why the court does not need to get into the weeds about that sort of thing at this point deciding this kind of issue the question is whether we have an opportunity to be her knock on whether we prove what they say is nonsense there right now the question is whether we have an opportunity to be heard and that burden is minimal standard of review on two points that were just made it is didn't know though on timeliness there was no finding of timeliness with respect to rule twenty four a by the district court period that's a matter of record it is do novo it is not the abuse of discretion second thing standard of review this rule twenty four a has to be construed liberally and all doubts all doubts resolved in favor of intervention and when that's done under these circumstances the doubts need to be resolved in favor of our intervention we need to be and we asked the court reverse the order denying intervention and render an order that the t s p s a be allowed to intervene in this case and we very much appreciate your time but thank you thank you thank both sides for good arguments and assistance from the court