JENNIFER WALKER ELROD, Circuit Judge:
The Texas Package Stores Association ("the Association"), a trade group representing holders of permits allowing liquor retailing in the state of Texas, seek to intervene in a lawsuit between Wal-Mart and the Texas Alcoholic Beverage Commission ("the Commission"). Wal-Mart alleges that the regulatory system administered by the Commission operates exclusively for the benefit of the Association's members in violation of the Equal Protection, Commerce, and Comity Clauses of the United States Constitution. The Association seeks to intervene in defense of the regulatory system. Because the Association satisfies the relevant requirements, we REVERSE and
Texas has a comprehensive licensing and regulatory scheme governing the sale of alcoholic beverages. See Tex. Alco. Bev. Code §§ 22.01-22.17. Only holders of a package store permit are allowed to market liquor at retail prices to consumers for off-premises consumption. Tex. Alco. Bev. Code § 22.01. Texas severely restricts ownership of package store permits. No individual or corporation may own more than five package store permits except that persons "related within the first degree of consanguinity" may consolidate legal entities under their control regardless of the number of permits held by those entities and may continue to hold as many permits in the combined entity as were held by the separate predecessor entities, Tex. Alco. Bev. Code §§ 22.04, 22.05. Public corporations are prohibited from owning package store permits and franchised businesses are effectively prohibited from holding permits. Tex. Alco. Bev. Code §§ 22.15, 22.16.
Wal-Mart's complaint alleges that this system is a protectionist scheme enacted for the benefit of existing permit holders. After the district court denied the Commission's motion to dismiss, and three months after Wal-Mart filed its Answer, the Association moved to intervene in the lawsuit. At the time the Association moved for intervention, discovery had opened but Wal-Mart had produced no documents and no depositions had been taken. The district court denied the Association's motion to intervene.
The Association appeals.
Rule 24(a) permits a party to seek intervention as of right while Rule 24(b) allows a party to seek permissive intervention. Fed. R. Civ. P. 24. "A ruling denying intervention of right is reviewed de novo." Texas v. United States, 805 F.3d 653, 656 (5th Cir. 2015) (quoting Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996)). "Although the movant bears the burden of establishing its right to intervene, Rule 24 is to be liberally construed." Id. (internal quotation marks omitted). "Federal courts should allow intervention when no one would be hurt and the greater justice could be attained." Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994) (internal quotation marks omitted).
To obtain intervention as of right, an intervenor must satisfy a four-prong test:
Texas, 805 F.3d at 657 (quoting New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir. 1984)).
The timeliness inquiry "is contextual; absolute measures of timelines should be ignored." Espy, 18 F.3d at 1205. Timeliness "is not limited to chronological considerations but `is to be determined from all the circumstances.'" Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977) (quoting United States v. U.S. Steel Corp., 548 F.2d 1232, 1235 (5th Cir. 1977)). Because the Association sought intervention before discovery progressed and because it did not seek to delay or reconsider phases of the litigation that had already concluded, the Association's motion was
We are also satisfied that the Association has an interest relating to the subject of the action and that disposition of the action may impair or impede the Association's ability to protect that interest. The Association asserts that the "property or transaction that is the subject of the action" in this case is the regulatory system governing package stores including the licenses held by the Association's members. Wal-Mart's case is premised on the argument that the system exists solely and illegally for the benefit of the Association — the lawsuit is premised on the assumption that the Association's members are the beneficiaries of this regulatory system.
Although "[t]here is not any clear definition of the nature of the `interest ...' that is required for intervention of right," our precedent has set guiding principles that dictate the outcome of this case. 7C Charles Alan Wright, et al., Federal Practice and Procedure § 1908.1 (3d ed. 2007).
Because we must assess whether the Association has a "legally protectable" interest, we find helpful a recent decision holding that the Association — participating in a similar challenge to the regulatory system as an intervenor — has standing to continue that lawsuit without the participation of the Commission. Cooper v. Tex. Alcoholic Beverage Comm'n, 820 F.3d 730, 737 (5th Cir. 2016). Because the direct holding of Cooper is that the Association can legally protect this regulatory system, it likely has an interest in the subject matter of this litigation.
Even without the guidance provided by Cooper, our precedent dictates that the Association has a legally protectable interest in the regulatory scheme because, according to Wal-Mart, the Association is the scheme's beneficiary. This puts the Association in a position comparable to other successful intervenors in our circuit. For example, in Texas, women who potentially
Our conclusion is in keeping with those of our sister circuits, which recognize that associations representing licensed business owners have a right to intervene in lawsuits challenging the regulatory scheme that governs the profession. In one such lawsuit the Second Circuit concluded that "clearly the [association] ha[s] an interest in the transaction which is the subject of the action" because "[t]here can be no doubt that the challenged prohibition ... affects the economic interests of members of the pharmacy profession. Pharmacists also have an interest in a regulation which they claim is designed to encourage `the continued existence of independent local drugstores by the prevention of destructive competition....'" N.Y. Pub. Int. Research Grp, Inc. v. Regents of Univ. of State of N.Y., 516 F.2d 350, 351-52 (2d. Cir. 1975) (quoting Urowsky v. Board of Regents, 76 Misc.2d 187, 349 N.Y.S.2d 600, 603 (N.Y. Sup. Ct. 1973)) (emphasis added). In another lawsuit challenging state liquor licensing regulations, a federal court in Massachusetts concluded that the intervening association's had a sufficient interest in the litigation because
Mass. Food Ass'n v. Sullivan, 184 F.R.D. 217, 221-22 (D. Mass. 1999) (quoting Johnson v. Martignetti, 374 Mass. 784, 375 N.E.2d 290, 297 (1978)) (emphasis added). Most recently, Judge Posner, writing for a unanimous Seventh Circuit panel, permitted intervention by an association of independent gas station owners precisely because they sought to preserve legislation that limited competition. Flying J., 578 F.3d at 572 ("Wisconsin's `Unfair Sales Act' is special-interest legislation and the special interest is that of retailers who wish, naturally enough, to limit price competition. They are the statute's direct beneficiaries....").
Wal-Mart argues that NOPSI forecloses the Association's intervention, but its argument misreads the law and facts of that case. NOPSI did not create a bar preventing all intervention premised on "economic interests." Such a rule would be inconsistent with Supreme Court precedent permitting intervention based on economic interests. See, e.g., Bryant v. Yellen, 447 U.S. 352, 366-67, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980) (allowing intervention by individuals who might be able buy land "at prices below the market value for irrigated lands" depending on the outcome of the underlying litigation); Cascade Nat. Gas Corp. v. El Paso Nat. Gas Co., 386 U.S. 129, 135-36, 87 S.Ct. 932,
Our holding in NOPSI also dealt with a purely private dispute. Two publicly-traded corporations — a supplier of natural gas and an energy company that purchased the supplier's gas — disagreed about the interpretation of a contract. 732 F.2d at 454. NOPSI expressly did not involve any state or federal regulations governing the market for gas sales. Id. at 456 n.3. A class of electrical customers including the mayor and city of New Orleans
We conclude our "interest" analysis where we began. NOPSI and our subsequent cases insist that the core of our interest analysis asks whether an interest is "legally protectable." NOPSI, 732 F.2d at 463-64. Often, this is a tautological exercise — a party may intervene if its interest is legally protectable and its interest is legally protectable if it can intervene — but
Having concluded that the Association has an interest that may be impaired by the present lawsuit, we are also satisfied it has met its minimal burden to demonstrate inadequate representation. Because intervention necessarily occurs before the litigation has been resolved, the Association need only show that "the representation may be inadequate." Texas, 805 F.3d at 662. The Association has satisfied its "minimal" burden to establish that its interest is not adequately represented. Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir. 1996). Our jurisprudence imposes two presumptions of adequate representation, "when `the would-be intervenor has the same ultimate objective as a party to the lawsuit' [and] `when the putative representative is a governmental body or officer charged by law with representing the interests of the [intervenor].'" Texas, 805 F.3d at 661-62 (quoting Edwards, 78 F.3d at 1005) (first alteration added). Even assuming, arguendo, that either of the two presumptions of adequate representation applies, the Association has shown "adversity of interest" and "that its interest is in fact different from that of the [governmental entity] and that the interest will not be represented by [it]." Texas, 805 F.3d at 661 (quoting Edwards, 78 F.3d at 1005).
Because we conclude that the Association is entitled to intervention as of right,
There is no regulatory gap in the present lawsuit — there is a directly and tightly regulated market that will be significantly disrupted if Wal-Mart prevails. The NOPSI intervenors were merely private consumers arguing that a private contract dispute might change the price of a commodity they purchased. In the instant case, the underlying lawsuit attacks not a private contract but a comprehensive system of state law and the intervenors are threatened not with a minor change but with the threatened end of their viability.