Case 1:16-md-02677-GAO Document 445 Filed 06/15/21 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`IN RE: DAILY FANTASY SPORTS
`LITIGATION
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`This Document Relates to:
`All Cases
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`MDL No. 1:16-md-02677-GAO
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`ORDER GRANTING PROVISIONAL CERTIFICATION OF SETTLEMENT CLASS
`AND PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT
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`WHEREAS, the Class Representative Plaintiffs, on behalf of themselves and all similarly
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`situated DraftKings participants, and Defendant DraftKings Inc. (“DraftKings”), all acting by
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`and through their respective counsel, have agreed, subject to Court approval following notice to
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`the Settlement Class and a hearing, to settle their claims in this litigation as they relate to
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`DraftKings only upon the terms as set forth in the Settlement Agreement;
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`WHEREAS, this Court has reviewed and considered the Settlement Agreement dated
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`March 3, 2021, entered into among the Class Representative Plaintiffs and DraftKings (the
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`“Agreement”), together with all exhibits thereto, the record in this case, and the briefs and
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`arguments of counsel; and
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`WHEREAS, this Court preliminarily finds, for the purposes of settlement only, that the
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`above-captioned action (the “Action”) meets all the prerequisites of Rule 23 of the Federal Rules
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`Case 1:16-md-02677-GAO Document 445 Filed 06/15/21 Page 2 of 10
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`of Civil Procedure, that the Class Representatives are adequate representatives of the Settlement
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`Class (as defined below), and that Class Counsel are adequate to represent the Settlement Class.
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`NOW, THEREFORE, based upon the files, records, and proceedings herein, and it
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`appearing to the Court that a hearing should be held on notice to the Settlement Class of the
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`proposed settlement to determine finally if the terms of the settlement are fair, reasonable, and
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`adequate;
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`IT IS HEREBY ORDERED THAT:
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`1.
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`All terms and definitions used herein have the same meanings as set forth in the
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`Agreement.
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`2.
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`The proposed settlement set forth in the Agreement is hereby preliminarily
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`approved as being within the range of reasonableness such that notice thereof should be given to
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`members of the Settlement Class.
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`3.
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`The following Settlement Class is conditionally and preliminarily certified for
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`settlement purposes only:
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`All Persons in the United States who made a first-time deposit into
`their DraftKings Daily Fantasy Sports account prior to January 1,
`2018, and who are not net lifetime winners on DraftKings.
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`4.
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`The Class Representative Plaintiffs listed on Exhibit A to the Agreement are
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`hereby found to be adequate and are therefore appointed as representatives of the Settlement
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`Class (the “Class Representatives”).
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`Case 1:16-md-02677-GAO Document 445 Filed 06/15/21 Page 3 of 10
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`5.
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`The following counsel are hereby found to be adequate and are therefore
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`appointed as class counsel for the Settlement Class (“Class Counsel”):
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`TODD & WELD LLP
`Christopher Weld
`One Federal Street
`Boston, MA 02109
`Telephone: (617) 720-2626
`Email:
`cweld@toddweld.com
`NAPOLI SHKOLNIK PLLC
`Hunter Jay Shkolnik
`1301 Avenue of the Americas
`New York, NY 10019
`Telephone: (212) 397-1000
`hunter@napolilaw.com
`Email:
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`MORGAN & MORGAN
` COMPLEX LITIGATION GROUP
`John A. Yanchunis
`201 N. Franklin Street, 7th Floor
`Tampa, FL 33602
`Telephone: (813) 318-5169
`Email:
`jyanchunis@forthepeople.com
`THE GORI LAW FIRM, P.C.
`D. Todd Mathews
`156 N. Main Street
`Edwardsville, IL 62025
`Telephone: (618) 659-9833
`Email:
`Todd@GoriLaw.com
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`HANNON LAW FIRM, LLC
`Kevin S. Hannon
`1641 Downing Street
`Denver, CO 80218
`Telephone: (303) 861-8800
`Email:
`khannon@hannonlaw.com
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`JONES WARD PLC
`Jasper D. Ward
`1205 E. Washington Street, Suite 111
`Louisville, KY 40206
`Telephone: (502) 882-6000
`Email:
`jasper@jonesward.com
`KANTROWITZ, GOLDHAMER
` & GRAIFMAN, P.C.
`Melissa R. Emert
`747 Chestnut Ridge Road, Suite 200
`Chestnut Ridge, NY 10977
`Telephone: (845) 356-2570
`memert@kgglaw.com
`Email:
`LAW OFFICES OF
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`JENNIFER DUFFY, APC
`Jennifer L. Duffy
`28649 S. Western Avenue, #6571
`San Pedro, CA 90734
`Telephone: (310) 714-9779
`Email:
`jduffy@kamberlaw.com
`HENINGER, GARRISON & DAVIS, LLC
`W. Lewis Garrison, Jr.
`2224 First Avenue North
`PO Box 11310
`Birmingham, AL 35203
`Telephone: (205) 326-3336
`Email:
`lewis@hgdlawfirm.com
`LOCKRIDGE GRINDAL
` NAUEN, P.L.L.P.
`Robert K. Shelquist
`100 Washington Avenue South, Suite 2200
`Minneapolis, MN 55401
`Telephone: (612) 339-6900
`Email:
`rkshelquist@locklaw.com
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`CUNEO GILBERT & LADUCA, LLP
`Michael J. Flannery
`500 North Broadway
`Suite 1450
`St. Louis, MO 63102
`Telephone: (314) 226-1015
`Email:
`mflannery@cuneolaw.com
`LAW OFFICE OF RICHARD S.
`CORNFELD
`Richard S. Cornfeld
`1010 Market Street, Suite 1720
`St. Louis, MO 63101
`Telephone: (314) 241-5799
`Email:
`rcornfeld@cornfeldlegal.com
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`SHERMAN, SILVERSTEIN, KOHL,
` ROSE & PODOLSKY, P.A.
`Alan C. Milstein
`308 Harper Drive, Suite 200
`Moorestown, NJ 08057
`Telephone: (856) 662-0700
`Email:
`amilstein@shermansilverstein.com
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`6.
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`If final approval of the settlement is not obtained, this certification order,
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`including the above description of the Settlement Class and appointment of the Class
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`Representatives and Class Counsel, shall be vacated and this Action shall proceed as though the
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`certification and appointments never occurred.
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`7.
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`Pending final determination of whether the settlement should be approved, neither
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`the Class Representatives nor any member of the Settlement Class, whether directly, indirectly,
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`individually, representatively, or in any other capacity, shall commence or prosecute any action
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`or proceeding of any nature whatsoever asserting any of the claims herein against DraftKings.
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`8.
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`The Class Action Settlement Notices (“Class Notices”), which are attached as
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`Exhibits C-1 and C-2 to the Agreement, are hereby approved as to form. DraftKings shall
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`cause the Class Notices (which shall be substantially identical to the form of Exhibits C-1
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`and C-2 to the Agreement) to be disseminated by the Claims Administrator who shall send the
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`Class Notices via email to DraftKings’ current and former customers who are within the
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`Settlement Class (the “Class Notice Emails”) by July 15, 2021.
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`9.
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`Tracking and reporting of Persons eligible to be Settlement Class Members who
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`request a valid and timely exclusion from the Settlement Class that fully complies with the
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`provisions of the Class Notices and Paragraph 17 of this Order (the “Opt Outs”) shall be
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`compiled by the Claims Administrator and reported to DraftKings, Class Counsel and the Court.
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`DraftKings shall pay all costs associated with such tracking and reporting of Opt Outs.
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`10.
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`DraftKings shall pay all costs associated with preparing and disseminating the
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`Class Notices.
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`11.
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`DraftKings shall provide and bear the cost of notice to appropriate federal and
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`state officials as required by the Class Action Fairness Act of 2005, 28 U.S.C. § 1715(a).
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`12.
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`DraftKings is directed to file with the Court and serve upon Class Counsel, no
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`later than July 22, 2021, a declaration confirming that dissemination of the Class Notices has
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`taken place in accordance with this Order.
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`13.
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`The Court finds that the dissemination of the Class Notices under the terms and in
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`the format provided for in the Agreement and this Order constitutes the best notice practicable
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`under the circumstances, that it is due and sufficient notice for all purposes to all persons entitled
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`to such notice, and that it fully satisfies the requirements of due process and all other applicable
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`laws.
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`14.
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`A hearing (the “Fairness Hearing”) shall be held on October 6, 2021, at 11:00
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`a.m., in Courtroom 22, before the Honorable George A. O’Toole, Jr., John Joseph Moakley
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`U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210 to determine whether the proposed
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`settlement of this Action as to DraftKings should be finally approved as fair, reasonable, and
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`adequate and whether the Final Judgment approving the settlement and dismissing certain claims
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`asserted in the litigation on the merits and with prejudice should be entered. The Court will hear
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`Class Counsel’s application for attorneys’ fees and costs concurrently with the Fairness Hearing.
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`The Court will also hear Class Counsel’s application for incentive payments to the Class
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`Representatives at the Fairness Hearing. The Fairness Hearing may be postponed, adjourned, or
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`rescheduled by order of the Court without further notice to the members of the Settlement Class.
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`15.
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`Objections by any Settlement Class Member to the Agreement shall be heard and
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`any papers submitted in support of said objections shall be considered by the Court at the
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`Fairness Hearing only if, by August 19, 2021, such objector (1) files with the Clerk of the United
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`States District Court, District of Massachusetts: (i) his, her, or its objection and a statement of
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`the basis for such objection, including the objector’s full name, current address, and telephone
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`number; (ii) if applicable, a Notice of Intention to Appear at the Fairness Hearing; and
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`(iii) documentary proof that he, she, or it is a member of the Settlement Class, and (2) serves
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`copies of the foregoing and all other papers in support of such objections (including any briefs or
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`declarations) on counsel for the parties identified in the Class Notices. In addition, any
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`Settlement Class Member objecting to the Agreement shall provide a detailed list of any other
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`objections submitted by the objector, or the objector’s separate counsel, to any class action
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`settlements submitted in any court in the United States, whether state, federal or otherwise, in the
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`previous five years. A Settlement Class Member need not appear at the Fairness Hearing in
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`order for his, her, or its objection to be considered.
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`16.
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`The filing of an objection allows Class Counsel or Defendant’s Counsel to notice
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`such objecting Settlement Class Member for and take his, her, or its deposition consistent with
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`the Federal Rules of Civil Procedure at an agreed-upon location, and to seek any documentary
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`evidence or other tangible things that are relevant to the objection. Failure by an objecting
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`Settlement Class Member to make himself, herself, or itself available for a deposition or to
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`comply with expedited discovery requests may result in the Court striking the Settlement Class
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`Member’s objection and otherwise denying that Settlement Class Member the opportunity to
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`make an objection or be further heard. The Court reserves the right to tax the costs of any such
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`discovery to the objecting Settlement Class Member or the objecting Settlement Class Member’s
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`separate counsel should the Court determine that the objection is frivolous or is made for an
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`improper purpose.
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`17.
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`Any Settlement Class Member shall have the right to opt-out of the class and the
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`settlement. To be effective, all requests for exclusion from the Settlement Class must: (1) be in
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`writing, (2) fully comply with the provisions of the Class Notices, and (3) be sent to the mailing
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`address identified in the Class Notice, post-marked by August 19, 2021. Any Settlement Class
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`Member who does not submit a timely and valid request for exclusion from the Settlement Class
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`that fully complies with the provisions of the Class Notices this Paragraph 17 shall be subject to
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`and bound by the Settlement Agreement and every order or judgment entered concerning the
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`Settlement Agreement.
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`18.
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`Class Counsel shall file any application for an award of attorneys’ fees and costs
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`and for incentive payments to the Class Representatives (“Fee Application”) no later than July
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`29, 2021, which shall be set for the same date as the Fairness Hearing.
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`19.
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`Counsel for the parties shall file memoranda, declarations, or other statements and
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`materials in support of final approval of the Agreement no later than July 29, 2021.
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`20.
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`Counsel for the parties shall file any reply papers in support of final approval of
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`the Agreement or the Fee Application and in response to any objections from Settlement Class
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`Members by September 2, 2021.
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`21.
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`The settlement on the terms and conditions of the Agreement filed concurrently
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`with the parties’ joint motion for preliminary approval is hereby preliminarily approved, but is
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`not to be deemed an admission of liability or fault by DraftKings or by any other party or person,
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`or a finding of the validity of any claims asserted in the Action or of any wrongdoing or of any
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`violation of law by DraftKings. The settlement is not a concession and shall not be used as an
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`admission of any fault or omission by DraftKings or any other party or person.
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`22.
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`Any Settlement Class Member may enter an appearance in the Action
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`individually or through the counsel of their choice at their own expense. Other than
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`(a) Settlement Class Members who enter an appearance and (b) Opt-Outs, the Class will be
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`represented by Class Counsel.
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`23.
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`Counsel for the parties are hereby authorized to utilize all reasonable procedures
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`in connection with the administration of the settlement which are not materially inconsistent with
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`either this Order or the terms of the Agreement.
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`24.
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`Summary of Dates and Deadlines:
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`Last day to disseminate class notice:
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`Last day to file papers in support of final
`approval of the settlement and any application
`for attorneys’ fees, expenses and incentive
`payments:
`Last day for class members to file comments
`and objections to the settlement or fee
`application:
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`30 days after entry of the Preliminary
`Approval Order
`14 days after class notice is disseminated
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`35 days after class notice is disseminated
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`Last day for class members to opt-out of the
`settlement class:
`Last day for the parties to file replies to any
`class member objections:
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`Fairness Hearing:
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`IT IS SO ORDERED.
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`DATED: June 15, 2021
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`35 days after class notice is disseminated
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`14 days after the last day for class
`members to file comments and objections
`to the settlement or fee application
`October 6, 2021
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`/s/ George A. O’Toole, Jr.
`Hon. George A. O’Toole, Jr.
`United States Senior District Judge
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`APPROVED AS TO FORM:
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`DATED: June 15, 2021
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`DATED: June 15, 2021
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`NAPOLI SHKOLNIK PLLC
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`By: /s/ Hunter J. Shkolnik
`Hunter J. Shkolnik
`Attorneys for Class Representative Plaintiffs
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`KANTROWITZ, GOLDHAMER
` & GRAIFMAN, P.C.
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`By: /s/ Melissa Emert
`Melissa Emert
`Attorneys for Class Representative Plaintiffs
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`DATED: June 15, 2021
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`JONES WARD PLC
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`DATED: June 15, 2021
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`DATED: June 15, 2021
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`By: /s/ Jasper D. Ward
`Jasper D. Ward
`Attorneys for Class Representative Plaintiffs
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`TODD & WELD LLP
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`By: /s/ Christopher Weld
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`Christopher Weld
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`Attorneys for Class Representative Plaintiffs
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`KING & SPALDING LLP
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`By: /s/ Damien J. Marshall
`Damien J. Marshall
`Attorneys for Defendant DRAFTKINGS INC.
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