By Carolina Bolado
Law360, Fort Myers (January 28, 2016, 9: 27 PM ET) — Both plaintiffs and defendants involved in dozens of proposed class actions aimed at fantasy sports websites DraftKings Inc. and FanDuel Inc. pitched consolidation of the cases Thursday, but they were all over the map about the venue.
In a hearing in Fort Myers, Florida, the Judicial Panel on Multidistrict Litigation heard pleas for consolidation in the Southern District of New York, the Southern District of Florida, the Eastern District of Louisiana, the Southern District of Illinois, the District of Colorado and the District of Massachusetts.
Because the suits’ claims are not identical — some allege insider trading, others deceptive marketing and others that the contests are illegal forms of gambling — several plaintiffs argued for coordination before a single judge, but not necessarily consolidation.
Gary Graifman of Kantrowitz Goldhamer & Graifman PC, who represents a group of plaintiffs in New York alleging deceptive trade practices, argued for a transfer of cases to the Southern District of New York, but said the lawsuits should be kept on their distinctive tracts and should be not delayed by investigations into potential illegal gambling operations.
”We don’t want to get dragged down in the procedural morass and delay,” Graifman. ”Whether it’s legal or illegal doesn’t affect our cases.”
Brendan Glackin of Lieff Cabraser Heimann & Bernstein LLP, who represents plaintiffs in Massachusetts and wants the cases consolidated there, told the judges that both DraftKings and FanDuel are small startups with limited staff and small offices. The same members of upper management will likely be needed in almost all of the cases, he said.
In addition, despite their differing claims, the plaintiffs are all primarily asking for refunds, he said. If one group of plaintiffs struck a deal with the companies that included releases from further claims, it could cause problems for other plaintiffs with claims still pending, according to Glackin.
Two groups of plaintiffs suing the companies on behalf of New Mexico and Florida under state statutes that confer on them standing as citizens concerned about gambling staunchly opposed consolidation of their claims, as they never participated in the contests.
”These people are citizens, not gamblers,” said David Freedman of Freedman Boyd Hollander Goldberg Urias & Ward PA, who represents the New Mexico plaintiffs.
FanDuel attorney Rebekah Kaufman of Morrison & Foerster LLP said her client, which is headquartered in New York, prefers a New York venue. James Fogelman of Gibson Dunn & Crutcher LLP, who argued on behalf of DraftKings, said the Boston-based company would prefer the Southern District of Massachusetts as a venue for any multidistrict litigation.
He also reiterated that his client’s actions were completely above board.
”There is no gambling, illegal or otherwise,” Fogelman said. ”These are contests.”
U.S. District Judges R. David Proctor, Catherine D. Perry, Sarah S. Vance, Lewis A. Kaplan, Ellen Segal Huvelle and U.S. Circuit Judge Marjorie Rendell sat for the Judicial Panel on Multidistrict Litigation.
The plaintiffs are represented by attorneys from Kantrowitz Goldhamer & Graifman PC, Lieff Cabraser Heimann & Bernstein LLP, Freedman Boyd Hollander Goldberg Urias & Ward PA, Pomerantz LLP, Keller Rohrback LLP, Robbins Arroyo LLP, and Cuneo Gilbert & LaDuca LLP, among others.
FanDuel is represented by Rebekah Kaufman, David F. McDowell, Kai S. Bartolomeo and Benjamin David Williams of Morrison & Foerster LLP.
DraftKings is represented by James P. Fogelman of Gibson Dunn & Crutcher LLP.
The cases are In re: Daily Fantasy Sports Marketing and Sales Practices Litigation, MDL No. 2677, In re: DraftKings Inc. Fantasy Sports Litigation, MDL No. 2678 and In re: FanDuel Inc. Fantasy Sports Litigation, MDL No. 2679, in the Judicial Panel on Multidistrict Litigation.