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Attorney Daniel Wallach was the first to report the news on Twitter.
Madigan’s office asserts that there is no grounds for DraftKings and FanDuel to sue on this matter. Both MTDs and memos in support are constructed similarly.
Why does the AG believe that the lawsuits against her office should be dismissed? From the FanDuel MTD:
Plaintiffs’ claim is at the outset barred by sovereign immunity because the Attorney General was acting on behalf of the State, and her advisory Opinion was well within her constitutional and statutory powers and did not violate any law.
Second, Plaintiffs do not allege an actual controversy ripe for judicial determination. The Attorney General did not order Plaintiffs to cease operations and has not pursued or threatened Plaintiffs with criminal or civil litigation. Moreover, Plaintiffs have not alleged facts demonstrating the concrete hardship necessary to convert their disagreement with the Attorney General’s Opinion into a ripe justiciable controversy.
Madigan also argues that what she did, in her role as AG, is not an actionable matter of law:
The majority of state courts around the country have held that attorney general opinions do not raise a justiciable controversy.
As stated in the memos of support, Madigan was simply responding to a request for an opinion on the legality of DFS from the legislature, which is considering legislation.
When Madigan issued her opinion, she put this on a cover letter to both DraftKings and FanDuel along with the opinion:
DraftKings and FanDuel — and many observers — likely took that as an assertion that they must stop doing business in the state. But Madigan’s office concludes differently, according to the memo of support for the MTD:
Plaintiffs’ conclusory assertion that the Attorney General “selectively request[ed] that FanDuel (as well as one other competitor, but no others) suspend operations” fares no better. The Attorney General never made such a request, rather, the Attorney General sent FanDuel the advisory Opinion along with a cover letter stating that the Attorney General Fanduel, Inc. v. Lisa Madigan expected FanDuel to follow the law.
Elementary statements informing a party of an expectation they will comply with Illinois law do not render FanDuel’s dispute ripe regarding the Attorney General’s advisory Opinion, especially on a criminal law that she does not enforce.
Madigan’s memo highlights that there is no harm that occurs from her issuing an opinion on DFS:
As discussed above, Plaintiffs do not allege any fear of criminal prosecution. Further, Plaintiffs do not assert any present pecuniary harm ― nor could they, given they filed suit less than 24 hours after the Attorney General issued the opinion. Instead, Plaintiffs merely allege that the Opinion “threatens to harm FanDuel’s and Head2Head’s Illinois operations” by “discouraging consumers . . . discouraging vendors . . . and interfering with the sponsorship contracts FanDuel has with Illinois businesses….” Such statements are conclusory, and speculative at best.
Madigan also questioned why a business other than FanDuel or DraftKings is suing them:
Oddly, FanDuel is joined by plaintiff Head2Head Sports, LLC, an entity that was not referenced in the Opinion and that does not operate daily fantasy sports contests.
The Attorney General’s advisory Opinion did not order specific conduct, adjudicate FanDuel’s rights or obligations, or threaten legal liability. The Opinion certainly did not do so for Head2Head.
Illinois has been one of several epicenters for the daily fantasy sports industry, both legally and legislatively:
Here is a look at the legal arguments on both sides regarding DFS vis a vis state law.
Illinois is just one of several AGs who have questioned the legality of DFS:
There continues to be speculation of what California’s attorney general, Kamala Harris, might do regarding daily fantasy sports as a legislative effort gains steam in that state. A house editorial in the Sacramento Bee called for Harris to weigh in.
There has also been speculation or chatter in a number of other states that AGs could offer their opinions at some point.
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