Case: 17-3051 Document: 35 Filed: 11/14/2018 Pages: 7

IN THE
SEVENTH CIRCUIT COURT OF APPEALS

Akeem Daniels, Cameron Stingily, and

Nicholas Stoner,

Plaintiffs-Appellants, Case No. 17-3051

v.

FanDuel, Inc. and DraftKings, Inc.,

Defendants-Appellees.

APPELLANTS’ STATEMENT IN RESPONSE TO THE COURT’S

ORDER OF NOVEMBER 8, 2018

Appellants Akeem Daniels, Cameron Stingily, and Nicholas Stoner, on their own behalf

and the putative college athlete class, submit this statement in response to this Court’s Order of

November 8, 2018.

The Indiana Supreme Court concluded in its October 24, 2018 Opinion that:

“We…understand that certain factual determinations and allegations remain

unresolved and are squarely within the jurisdiction of our federal colleagues.”

Dkt. 31 at 3. Consistent with the Indiana high court’s expressed understanding, and also with the

“narrow” scope that the Supreme Court expressly intended be ascribed to its Opinion, id. at 3, 4,

5, as the next step in this case, this Court should reverse the District Court’s Order of September

29, 2017, and remand the matter for discovery and a finding concerning the illegality of Appellees’

conduct under Indiana law.

The U.S. District Court below declined to reach a “finding as to whether Defendants

engaged in conduct that violated Indiana [criminal] law[.]” (Dist. Ct. Op’n at 19.) Referring the

certified question that it did to the Indiana high court on March 7, 2018, this Court also declined

1
 Case: 17-3051 Document: 35 Filed: 11/14/2018 Pages: 7

to reach a finding on this issue. Dkt. 29 at 5. Given the undeveloped state of the record on this

issue, the Indiana Supreme Court— as the high court of Indiana— declined to opine on the

illegality of Defendants’ conduct, thereby refraining from pre-judging said conduct in the event of

criminal prosecution of these same Defendants by Indiana authorities.

And it is no academic exercise. The statute of limitations has not run on any of the Indiana

criminal statutes at issue. IC § 35-45-5-3(b)(6); IC § 35-45-5-2(c); IC § 35-45-5-3(a)(6); IC § 35-

45-5-4(a)(2); IC § 35-41-4-2(a)(1) (supplying five-year statute of limitations). Indiana prosecutors

continue to prosecute defendants for the exact same type of criminal conduct engaged in by

Defendants here. Dkt. 11 at 26 n.11. DraftKings recently averred that it “now…potentially faces

a significant risk of…criminal prosecution in counties across” Texas in the wake of an opinion by

the Texas Attorney General that their conduct is illegal under Texas state criminal gambling law.1

Any criminal conviction of either Defendant within Indiana would likely traverse its way to the

high court on appeal. Ind. Const. Art. 7, § 4 (“The Supreme Court shall have, in all appeals of

criminal cases, the power to review all questions of law[.]”). As a result, the Supreme Court took

a discreet approach in addressing the question certified by this Court. Everling v. State, 929 N.E.2d

1281, 1288 (Ind. 2010) (there is “bias” which “violate[s]…a defendant's due process right to a fair

trial…where the judge expresse[s] an opinion of the controversy over which the judge [is]

presiding.”).

The “unresolved determinations and allegations” concerning the illegality of Defendants’

conduct can now be undertaken by the trial court by appraising the Indiana right of publicity statute

(“ROPS”) “through the lens of the First Amendment.” Sup. Ct. Op’n at 9 (clarifying that the

1
See Plaintiff’s Decl. Judgment Petition, DraftKings Inc. v. Paxton, D-1-GN-18-001856 (Dist.
Ct.) (Travis Cty., Tex.) (Apr. 16, 2018), available at https://www.courthousenews.com/wp-
content/uploads/2018/04/DraftKingsTexas.pdf, at 6.
2
 Case: 17-3051 Document: 35 Filed: 11/14/2018 Pages: 7

“newsworthy” exception under ROPS Section 1(c)(1)(B), is to be understood “through the lens of

the First Amendment”). Defendants have urged that the absence of language in the ROPS

expressly providing that illegal speech is ineligible for the claimed exception means that illegality

should not be the subject of factual inquiry by the trial court. Dkt. 17 at 33. But the Indiana

Supreme Court did not reach that question, leaving it for the federal courts to address Plaintiffs’

allegations concerning illegality. The First Amendment itself— the “lens” of statutory

construction to be applied— like ROPS Section 1(c)(1)(B), contains no language expressly stating

that illegal speech is ineligible for constitutional protection. Notwithstanding, it is a lodestar

principle of constitutional law that illegal speech is “hardly within the ambit of” the First

Amendment. Indiana Bell Telephone Co., Inc. v. Indiana, 402 N.E.2d 962, 965, 273 Ind. 120 (Ind.

1980) (“speech thought to promote a criminal scheme…is hardly within the ambit of the First

Amendment”) (citations omitted); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)

(“It rarely has been suggested that the constitutional freedom for speech and press extends its

immunity to speech or writing used as an integral part of conduct in violation of a valid criminal

statute.”); U.S. v. Kaun, 827 F.2d 1144, 1152 (7th Cir. 1987) (“[W]here speech becomes an integral

part of the crime, a First Amendment defense is foreclosed[.]”).

The Indiana Supreme Court will only be deemed to have abrogated prior precedent where

it does so expressly. Hays v. Hockett, 94 N.E.3d 300, 306 (Ind. Ct. App. 2018) (“If the [Indiana

Supreme] [C]ourt [in Stewart v. Vulliet, 888 N.E.2d 761 (Ind. 2008)] wanted to overturn Williams

[v. Williams, 555 N.E.2d 142 (Ind. 1990)] or K.S. [v. State, 849 N.E.2d 538, 540 (Ind. 2006), it

would have done so explicitly…”). That did not happen here. Bell Telephone and like cases, e.g.,

Seifert v. State, 67 N.E. 100, 102 (Ind. 1903), Rocca v. Southern Hills Counseling Center, Inc.,

3
 Case: 17-3051 Document: 35 Filed: 11/14/2018 Pages: 7

671 N.E.2d 913, 919 (Ind. Ct. App. 1996),2 remain good law, and there are literally zero contrary

Indiana decisions holding that a speaker of illegal speech may avail him or herself of a statutory

speech protection, or a protection arising under the First Amendment. In light of this, it would be

inconsistent to interpret the Indiana Supreme Court’s decision, through its silence, as permitting

illegal speech to enjoy the First Amendment privileges of Section 1(c)(1)(B) of the ROPS, as to

do so would be contrary to established First Amendment case law denying protections to illegal

speech, such as Giboney and Bell Telephone.

Plaintiffs directly alleged that Defendants’ May 2014-May 2016 college fantasy contests

were illegal under Indiana law. Am. Compl. 71, see also Am. Compl. ¶¶ 46, 107; Dkt. 11 at 22-

27. Plaintiffs further have argued that Defendants’ repeated use of Plaintiffs’ and the other college

athletes’ names to operate and advertise their contests were integral to, and wholly inseparable

from, their illegal contests. Dkt. 11 at 28. At the pleading stage, Plaintiffs are entitled to all

reasonable inferences on the facts alleged, as Rule 12(b)(6) requires; this strongly counsels

remand. Rice v. Paladin Enterprises, Inc., 128 F.3d 233, 252, 267 (4th Cir. 1997) (Luttig, J.)

(reversing summary judgment on issue of whether the First Amendment immunized defendant’s

speech and finding question of speech’s illegality to present a jury question in civil wrongful death

action).

In sum, while the import of the Indiana Supreme Court’s Opinion is that fantasy operators

that conducted contests for de minimis cash prizes in Indiana from 2014-2016,3 or otherwise after

July 2016 in compliance with the new regulations augured by Indiana Senate Bill 339 (the partial

2
See also, e.g., In re Indiana Newspapers, Inc. v. Miller, 980 N.E.2d 852, 856 (Ind. Ct. App. 2012)
(“[C]hilling [illegal] speech is warranted and is good public policy[.]”) (reciting findings of trial
court in action to compel disclosure of identity of speaker of defamatory statement) (dismissing
appeal for lack of subject matter jurisdiction).
3
Grimes v. Indiana, 693 N.E.2d 1361, 1363 (Ind. Ct. App. 1998).
4
 Case: 17-3051 Document: 35 Filed: 11/14/2018 Pages: 7

legalization statute), may avoid liability by dint of the newsworthy exception to the ROPS, the

question remains open whether Defendants’ underlying speech at issue in this case was legal. That

question should be remanded to the trial court for ruling after development of the factual record.4

Dated: November 14, 2018 Respectfully submitted,

s/ W. Clifton Holmes
W. Clifton Holmes
THE HOLMES LAW GROUP, LTD.
350 N. Orleans St.
Suite 9000N
Chicago, IL 60654
(312) 721-0779
holmes@theholmeslawgroup.com
Counsel for Plaintiffs-Appellants

s/ Todd L. McLawhorn
Todd L. McLawhorn
SIPRUT PC
17 North State Street, Suite 1600
Chicago, IL 60602
312-236-0000
tmclawhorn@siprut.com
Counsel for Plaintiffs-Appellants

s/ Stephen B. Caplin
Stephen B. Caplin (3102-49)
STEPHEN B. CAPLIN
PROFESSIONAL CORPORATION
9245 North Meridian Street, Suite 301
Indianapolis, Indiana 46260

4
Though Defendants urge that their contests are ones of “skill,” Dkt. 17 at 1, U.S. Dist. Ct. Dkt.
29 at 28, U.S. Dist. Ct. Dkt. 51 at 15, the Indiana Gaming Commission has already concluded that
they are not. See Dkt. 11 at 27. That guidance is entitled to “great weight.” LTV Steel Co. v.
Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000). The Indiana Attorney General long ago issued formal
guidance that Internet gambling is illegal under Indiana law. See
https://www.edocr.com/v/nzl2obkq/pilotpost1/OpinionNo988IndianaAttorn (Op. 98-8) (July 7,
1998).
5
Case: 17-3051 Document: 35 Filed: 11/14/2018 Pages: 7

(317) 815-8600
sbcaplin@gmail.com
Counsel for Plaintiffs-Appellants

6
 Case: 17-3051 Document: 35 Filed: 11/14/2018 Pages: 7

CERTIFICATE OF SERVICE

I hereby certify that on this 14th of November, 2018, I caused the foregoing Statement to

be filed via the CM/ECF system, which shall cause service to be effected on all counsel of record

for Appellees.

/s/
W. Clifton Holmes