Case 2:25-cv-00575-APG-BNW Document 57 Filed 05/14/25 Page 17 of 25
iv. The Existing Parties Do Not Adequately Represent the Interests of t he NRA’s Members.
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The fourth and final requirement is whether “the existing parties may not adequately meet
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the applicant’s interest.” Cal. Dep’t of Toxic Substances Control , 54 F.4th at 1086. A prospective
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intervenor must show that that the present parties’ representation may be inadequate. Sw. Ctr. for
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Biological Diversity , 268 F.3d at 822; see also Trbovich v. United Mine Workers of Am. , 404 U.S.
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528, 538- 39 n.10 (1972). The burden for the prospective intervenor is “minimal.” Sw. Ctr. for
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Biological Diversity , 268 F.3d at 823. It is sufficient for an applicant to show that, because of the
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difference in their interests, it is likely that the existing parties will not advance the same
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arguments as applicants. Id . at 823-24.
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When determining the adequacy of representation, the Ninth Circuit considers three
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factors:
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(1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.
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Id. at 822. All three of these factors weigh in favor of inadequate representation here and satisfy
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the NRA’s “minimal” burden here.
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First , the briefing up to this point forecloses the idea that any of the existing parties will
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undoubtedly make all of the NRA’s arguments. Arakaki , 324 F.3d at 1086 ; Hr’g Tr. (Rough), Apr.
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8, 2025, 69:19-22. Among the most important arguments in this case that the NRA will present in
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its substantive filings are that (1) the CEA does not field preempt state regulation of sports betting
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and the intent of all of the laws and regulations cited by Kalshi were to prohibit gaming contracts,
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not to permit them; (2 ) Kalshi’s “sports - related event contracts” are not “swaps” within the
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meaning of the CEA; and (3) the CFTC has not authorized and cannot legally authorize Kalshi to
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offer the relevant contracts. These issues have not been fully and comprehensively briefed by the
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parties and not with the additional perspective of the NRA ’s members . Much of the State
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Defendants’ current briefing and oral argument has been taken up by other issues and arguments,
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including the Eleventh Amendment and official immunity, see ECF No. 50 at 4-9, Nevada public
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