DraftKings, Hermalyn Attorneys Argue Over How Long Is Too Long

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Attorneys for DraftKings and former employee Michael Hermalyn are arguing over length in their latest filings.

DraftKings requested that Hermalyn’s opposition to his previous employer’s request for a preliminary injunction be struck because of the formatting of his opposition filing.

“Properly formatted and counting the appendices and table, Defendant’s filing exceeds 52 pages—far in excess of the expanded 30-page limit to which the parties agreed and that this Court ordered—and more than 70% longer than DK’s Memorandum of Law in Support of its Motion for Preliminary Injunction.

“DK respectfully requests a ruling as soon as practicable because DK’s reply papers are due this Thursday, March 28, 2024.”

DraftKings strike request denied

The request to toss out Hermalyn’s opposition based on formatting was denied by the District Court of Massachusetts on Tuesday, but not before the court recognized his former employer’s point:

“In relying on excessive single-spaced bullet points, Hermalyn’s opposition to DraftKings’ motion for a preliminary injunction failed to comply with Local Rule 7.1(b)(4), as modified by this Court’s order. Nevertheless, in view of the volume of evidentiary material submitted by DraftKings in support of its motion for a preliminary injunction, the Court declines to strike Hermalyn’s filings.

“DraftKings is given leave to file a 15-page reply brief. In future filings, the parties shall adhere to the rules of this Court.”

Hermalyn: length required for response

For Hermalyn and his lawyers, the argument was simple: a little extra room was needed to comply with the 158 total pages DraftKings submitted relating to its preliminary injunction.

“To protect his rights, Hermalyn had to respond to DraftKings’ voluminous submissions. He did not complain about the liberties DraftKings took with its motion submissions, nor did he move to strike any of them. Nor did Hermalyn move to strike DraftKings’ affidavit of its purported forensic expert (Mitchell Green), despite the fact that this Court ordered no forensics take place at the preliminary injunction stage.

“Rather, Hermalyn rebutted DraftKings’ filings by submitting his response on the merits, and used supporting affidavits, appendices, charts, abbreviations, and bullet points to present certain arguments in his opposition memorandum in a more easily digestible format.

“Hermalyn’s submissions are proper and well-warranted by DraftKings’ preliminary injunction submissions.”

Fighting to nullify DraftKings non-compete

All of this stems from Hermalyn’s attempt to nullify his non-compete in order to lead the VIP program for Fanatics.

The Boston-based sportsbook operator sued Hermalyn for taking a position with Fanatics despite signing multiple non-competes in his time with the company. Hermalyn, however, stated he became a resident of California to take the job with Fanatics.

California does not allow its residents to be prevented from working because of non-competes.

Hermalyn has been hit with a temporary restraining order to stop him from sharing confidential secrets with Fanatics, though he has still been allowed to start work at the company. DraftKings said that order does not go far enough and alleges Hermalyn has already used confidential information like employee salaries when talking to current DraftKings employees about jobs with Fanatics.