Like the Defendants, you do not discuss the three factors considered when determining the adequacy of representation:
(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. Aerojet Gen. Corp., supra, at 1153.
The burden of establishing inadequacy of representation is “minimal”, and is satisfied where the proposed intervenor can show that representation of its interests “may be” inadequate. Citizens for Balanced Use, supra.; Smith, supra, at 864.
Amarin never responded to EPADI II’s Demand. (Appx239-240). Amarin never moved for Rule 60 relief, and never advanced any of EPADI II’s Rule 60 arguments in conjunction with its Appeal, En Banc Petition, or Petition for Certiorari.
Amarin undoubtedly will not make any of EPADI II’s Rule 60 arguments. Aerojet Gen. Corp., supra. While Amarin is presumably capable of making those arguments, Amarin is clearly unwilling to make those arguments. Id. On the other hand, EPADI II most definitely offers a necessary element to this proceeding that the other parties have neglected, namely the corresponding request for Rule 60 relief. Id.
EPADI II seeks to protect the interests of Amarin and its shareholders in ensuring that its Rule 60 motion is fully litigated and adjudicated on the merits to obtain the best possible result for Amarin and its shareholders. In re Intel Corp. Shareholder Deriv. Litig., supra, at *4.
Contrary to yours or Defendants’ incorrect assertion, EPADI II and Amarin do not share the same ultimate objective, because EPADI II’s objective is to pursue and obtain Rule 60 relief, but Amarin has shown zero interest in doing so. Defendants admit as much when they acknowledge “Amarin’s refusal to drink EPADI’s ‘cropped table’ Kool-Aid and espouse its conspiracy theories in a Rule 60 motion of its own.” (Opp. Br. 5-6).
EPADI II’s interests are not adequately represented by existing parties.
