Dufoe v. DraftKings Inc.
1:23-cv-10524
| D. Mass. | Jul 30, 2025|
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Case 1:23-cv-10524-DJC Document106 Filed 07/30/25 Page 1 of 12
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JUSTIN DUFOE, on Behalf of Himself
and All Others Similarly Situated,
Lead Plaintiff, Case No. 1:23-cv-10524-DJC
Vv.
DRAFTKINGS INC., JASON D.
ROBINS, JASON K. PARK, and
MATTHEW KALISH,
Defendants.
[PKOPOSPH| ORDER AND FINAL JUDGMENT
WHEREAS, a putative securities action is pending in this Court entitled Justin Dufoe v.
DraftKings Inc., et al., No. 1:23-cv-10524-DJC (the “Action”);
WHEREAS, Lead Plaintiff Justin Dufoe (“Lead Plaintiff’) on behalf of himself and other
members of the Settlement Class, and (ii) Defendants DraftKings Inc. (“DraftKings”), Jason D.
Robins, Jason K. Park, and Matthew Kalish (together with DraftKings, “Defendants”) have entered
into a Stipulation and Agreement of Settlement dated February 26, 2025 (the “Stipulation’’), that
provides for a complete dismissal with prejudice of the claims asserted against Defendants in the
Action on the terms and conditions set forth in the Stipulation, subject to the approval of this Court
(the “Settlement’’);
WHEREAS. unless otherwise defined in this Judgment, the capitalized terms herein shall
have the same meanings as they have in the Stipulation;
WHEREAS, by Order dated February 28, 2025 (the “Preliminary Approval Order’), this
Court: (a) found, pursuant to Rule 23(e)(1)(B), that it (i) would likely be able to approve the
Settlement as fair, reasonable, and adequate under Rule 23(e)(2), and (ii) would likely be able to
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certify the Settlement Class for purposes of the Settlement; (b) ordered that notice of the proposed
Settlement be provided to potential Settlement Class Members; (c) provided Settlement Class
Members with the opportunity either to exclude themselves from the Settlement Class or to object
to the proposed Settlement; and (d) scheduled a hearing regarding final approval of the Settlement,
WHEREAS, due and adequate notice has been given to the Settlement Class;
WHEREAS, the Court conducted a hearing on July 30, 2025 (the “Settlement Hearing”) to
consider, among other things: (a) whether the terms and conditions of the Settlement are fair,
reasonable, and adequate to the Settlement Class, and should therefore be approved; and
(b) whether a judgment should be entered dismissing the Action with prejudice as against the
Defendants; and
WHEREAS, the Court having reviewed and considered the Stipulation, all papers filed and
proceedings held herein in connection with the Settlement, all oral and written comments received
regarding the Settlement, and the record in the Action, and good cause appearing therefor;
NOW, THEREFORE, ITIS HEREBY ORDERED, ADJUDGED AND DECREED:
1. Definitions — Capitalized terms not defined in this Order and Final Judgment have
the meaning set forth in the Stipulation (certain of which are repeated here for ease of reference
only).
2. Jurisdiction — The Court has jurisdiction over the subject matter of the Action, and
all matters relating to the Settlement, as well as personal jurisdiction over all of the Parties and
each of the Settlement Class Members.
3. Incorporation of Settlement Documents — This Judgment incorporates and makes
a part hereof: (a) the Stipulation filed with the Court on February 26, 2025; and (b) the Email
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Notice, Long-Form Notice, and the Publication Notice, both of which were filed with the Court on
February 26, 2025.
4. Class Certification for Settlement Purposes — The Court hereby certifies for the
purposes of the Settlement only, the Action as a class action pursuant to Rules 23(a) and (b)(3) of
the Federal Rules of Civil Procedure on behalf of the Settlement Class consisting of all persons or
entities who purchased, acquired, sold, disposed of, owned, held, used, or otherwise transacted in
non-fungible tokens (“NFTs”) in an account at DraftKings during the Class Period, including,
without limitation, Marketplace NFTs. Excluded from the Class are: (i) Defendants; (ii)
DraftKings’ officers and directors during the Class Period; (iii) the Immediate Family of
Defendants and their legal representatives, heirs, successors, or assigns; and (iv) any entity in
which Defendants have or had a controlling interest. Also excluded from the Settlement Class are
those persons who are found by the Court to have timely and validly requested exclusion from the
Settlement Class.
5. Settlement Class Findings — For purposes of the Settlement only, the Court finds
that each element required for certification of the Settlement Class pursuant to Rule 23 of the
Federal Rules of Civil Procedure has been met: (a) the members of the Settlement Class are so
numerous that their joinder in the Action would be impracticable; (b) there are questions of law
and fact common to the Settlement Class which predominate over any individual questions; (c) the
claims of Lead Plaintiff in the Action are typical of the claims of the Settlement Class; (d) Lead
Plaintiff and Class Counsel have and will fairly and adequately represent and protect the interests
of the Settlement Class; and (e) a class action is superior to other available methods for the fair
and efficient adjudication of the claims of the Settlement Class in the Action.
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6. Adequacy of Representation — Pursuant to Rule 23 of the Federal Rules of Civil
Procedure, and for the purposes of the Settlement only, the Court hereby appoints Lead Plaintiff
as Class Representative for the Settlement Class, and appoints the law firms of Kirby
MclInerney LLP, Berman Tabacco, Hannafan & Hannafan, Ltd., and G. Dowd Law LLC as Class
Counsel for the Settlement Class. Lead Plaintiff and Class Counsel have fairly and adequately
represented the Settlement Class both in terms of litigating the Action and for purposes of entering
into and implementing the Settlement and have satisfied the requirements of Federal Rules of Civil
Procedure 23(a)(4) and 23(g), respectively.
7. Sufficiency of Notice — The form, manner, and content of the Email Notice, Long-
Form Notice, and Publication Notice were the best notice practicable under the circumstances,
notice was provided to the Settlement Class in accordance with the Preliminary Approval Order,
and that the Notice Program in all respects satisfied due process, provided adequate information
to the Settlement Class of all matters relating to the Settlement, and fully satisfied the requirements
of Federal Rules of Civil Procedure 23(c)(2) and (e)(1), the United States Constitution (including
the Due Process Clause), and the Private Securities Litigation Reform Act of 1995, 15 U.S.C.
§ 78u-4, as amended, Massachusetts law, and all other applicable law and rules.
8. CAFA — The Court finds that the notice requirements set forth in the Class Action
Fairness Act of 2005, 28 U.S.C. § 1715 et seq., to the extent applicable to the Action, have been
satisfied.
9. Lead Plaintiff shall be paid a $50,000 Service Award from the Settlement Fund in
accordance with the terms of the Stipulation.
10. Class Counsel shall be paid $3,333,333 in attorneys’ fees and $52,792.07 in
Litigation Expenses in accordance with the terms of the Stipulation.
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11. The Settlement Administrator, A.B. Data, Ltd., shall be paid Notice Costs and
Administration Costs in accordance with the terms of the Stipulation not exceeding $180,000. The
Settlement Administrator shall disburse the Settlement Fund in accordance with the terms of the
Stipulation and this Order and Final Judgment.
12. Final Settlement Approval and Dismissal of Claims — Pursuant to, and in
accordance with, Rule 23(e)(2) of the Federal Rules of Civil Procedure, this Court hereby fully
and finally approves the Settlement set forth in the Stipulation in all respects (including, without
limitation, the amount of the Settlement, the Releases provided for therein, and the dismissal with
prejudice of the claims asserted against Defendants in the Action), and finds that the Settlement is,
in all respects, fair, reasonable, and adequate to the Settlement Class. The objections 7 ow
t G
Siemon (ECF No. oes Downing (ECF No. 94), and Brad Wyatt (ECF No. 100) to the
Settlement and Plan of Allocation are denied.
13. The Action and all of the claims asserted against Defendants in the Action by Lead
Plaintiff and the other Settlement Class Members are hereby dismissed with prejudice. The Parties
shall bear their own costs and expenses, except as otherwise expressly provided in the Stipulation.
14. Binding Effect — The terms of the Stipulation and of this Judgment shall be forever
binding on Defendants, Lead Plaintiff, and all other Settlement Class Members (regardless of
whether or not any individual Settlement Class Member submits a Claim Form or seeks or obtains
a distribution from the Net Settlement Fund), as well as their respective successors and assigns.
The persons and entities listed on Schedule 1 hereto are excluded from the Settlement Class
pursuant to request and are not bound by the terms of the Stipulation or this Judgment.
13. Releases — The Releases set forth in paragraphs 6 and 7 of the Stipulation, together
with the definitions contained in paragraph | of the Stipulation relating thereto (certain of which
OVC
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are repeated herein), are expressly incorporated herein in all respects. The Releases are effective
as of the Effective Date. Accordingly, this Court orders that:
(a) Without further action by anyone, and subject to paragraph 16 below, upon
the Effective Date of the Settlement, Lead Plaintiff and all Settlement Class Members, on behalf
of themselves and the Released Plaintiff Parties and any other person or entity legally entitled to
bring Released Plaintiffs’ Claims on behalf of a Settlement Class Member, in their capacities as
such, and by operation of law and of this Judgment, shall thereupon be deemed to have fully,
finally, and forever released, settled, and discharged the Released Defendant Parties from and with
respect to every one of the Released Plaintiffs’ Claims, and shall thereupon be forever barred and
enjoined from commencing, instituting, prosecuting, instigating, or continuing to prosecute, or in
any way participating in the commencement or prosecution of, any Released Plaintiffs’ Claims,
either directly or indirectly, representatively, derivatively, or in any other capacity, against any and
all of the Released Defendant Parties.
(b) Without further action by anyone, and subject to paragraph 16 below, upon
the Effective Date of the Settlement, each of Defendants, on behalf of themselves and their
personal representatives, heirs, executors, administrators, successors and assigns, in their
capacities as such, and by operation of law and of this Judgment, shall thereupon be deemed to
have fully, finally, and forever released, settled, and discharged the Released Plaintiff Parties from
and with respect to every one of the Released Defendants’ Claims, and shall thereupon be forever
barred and enjoined from commencing, instituting, or prosecuting any of the Released Defendants’
Claims against any of the Released Plaintiff Parties.
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16. Notwithstanding paragraphs 15(a) through (b) above, nothing in this Judgment
shall bar any action by any of the Parties to enforce or effectuate the terms of the Stipulation or
this Judgment.
17. Express Release of Unknown Claims — Regarding the Released Claims, the
Parties and the Settlement Class Members shall be deemed to have waived all provisions, rights,
and benefits conferred by any law of the United States, any law of any state, or principle of
common law which governs or limits a person’s release of Unknown Claims to the fullest extent
permitted by law, and to have relinquished, to the full extent permitted by law, the provisions,
rights, and benefits of Section 1542 of the California Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.
18. “Unknown Claims” means any Released Plaintiffs’ Claims that the Released
Plaintiff Parties do not know or suspect to exist in his, her, its, or their favor at the time of the
release of the Released Plaintiffs’ Claims, and any Released Defendants’ Claims that any
Defendant does not know or suspect to exist in his, her, its, or their favor at the time of the release
of the Released Defendants’ Claims, including those which, if known by him, her, it, or them,
might have affected his, her, its, or their decision(s) with respect to the Settlement. The Parties
have acknowledged, and the other Settlement Class Members by operation of law are deemed to
acknowledge, that they may discover facts in addition to or different from those now known or
believed to be true with respect to the Released Plaintiffs’ Claims and the Released Defendants’
Claims, but that it is the intention of the Parties, and by operation of law the other Settlement Class
Members, to completely, fully, finally, and forever extinguish any and all Released Plaintiffs’
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Claims and Released Defendants’ Claims, known or unknown, suspected or unsuspected, which
now exist, or heretofore existed, or may hereafter exist, and without regard to the subsequent
discovery of additional or different facts. The Parties also have acknowledged, and the other
Settlement Class Members by operation of law are deemed to acknowledge, that the inclusion of
“Unknown Claims” in the definition of the Released Plaintiffs’ Claims and the Released
Defendants’ Claims was separately bargained for and is a key element of the Settlement.
19. Rule 11 Findings — The Court finds and concludes that the Parties and their
respective counsel have complied in all respects with the requirements of Rule 11 of the Federal
Rules of Civil Procedure in connection with the institution, prosecution, defense, and settlement
of the Action.
20. Bar Order — Upon the Effective Date, Lead Plaintiff and all Settlement Class
Members, on behalf of themselves and the Released Plaintiff Parties and any other person or entity
legally entitled to bring Released Plaintiffs’ Claims on behalf of a Settlement Class Member, in
their capacities as such, and by operation of law and of this Judgment, shall be deemed to have
fully, finally, and forever released, settled, and discharged the Released Defendant Parties from
and with respect to every one of the Released Plaintiffs’ Claims, and shall be forever barred and
enjoined from commencing, instituting, prosecuting, instigating, or continuing to prosecute, or in
any way participating in the commencement or prosecution of, any Released Plaintiffs’ Claims,
either directly or indirectly, representatively, derivatively, or in any other capacity, against any and
all of the Released Defendant Parties. Upon the Effective Date, each of Defendants, on behalf of
themselves and their personal representatives, heirs, executors, administrators, successors, and
assigns, in their capacities as such, and by operation of law and of this Judgment, shall be deemed
to have fully, finally, and forever released, settled, and discharged the Released Plaintiff Parties
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from and with respect to every one of the Released Defendants’ Claims, and shall be forever barred
and enjoined from commencing, instituting, or prosecuting any of the Released Defendants’
Claims against any of the Released Plaintiff Parties.
21. Order and Final Judgment Not Conditioned on Fee and Expense Award or
Service Award — No proceedings or court order with respect to (i) the award of attorneys’ fees
and expenses to Class Counsel or (ii) any incentive or service award to Lead Plaintiff shall in any
way disturb or affect this Judgment (including precluding this Judgment from being Final or
otherwise being entitled to preclusive effect), and any such proceedings or court order shall be
considered separate from this Judgment.
22. Modification of the Agreement of Settlement — Without further approval from
the Court, Lead Plaintiff and Defendants are hereby authorized to agree to and adopt such
amendments or modifications of the Stipulation or any exhibits attached thereto to effectuate the
Settlement that: (a) are not materially inconsistent with this Judgment; and (b) do not materially
limit the rights of Settlement Class Members in connection with the Settlement. Without further
order of the Court, Lead Plaintiff and Defendants may agree to reasonable extensions of time to
carry out any provisions of the Settlement.
23. Termination of Settlement — If the Settlement is terminated as provided in the
Stipulation or the Effective Date otherwise fails to occur, this Order and Final Judgment and any
related orders entered by the Court shall be treated as vacated, nunc pro tunc; the amount of any
fees and expenses awarded to Class Counsel shall be refunded to the Settlement Fund within ten
(10) business days after such termination; the Settlement Fund and all interest earned thereon—
less all Notice Costs and Administration Costs paid, incurred, or due consistent with the
Stipulation—shall be returned to DraftKings within fifteen (15) business days; the Stipulation shall
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be null and void and of no force and effect (except as otherwise provided for in the Stipulation);
Lead Plaintiff and Defendants shall be deemed to have reverted to their respective litigation status
immediately prior to October 22, 2024; Lead Plaintiff and Defendants shall negotiate a new trial
schedule in good faith; Lead Plaintiff and Defendants shall proceed as if the Stipulation had not
been executed and the related orders had not been entered; and all of their respective claims and
defenses as to any issue in the Action shall be preserved without prejudice in any way.
24. Settlement Class Members Bound by Settlement — All Settlement Class
Members shall be and are deemed bound by the Stipulation and this Order and Final Judgment.
This Order and Final Judgment, including the release of all Released Claims against the Released
Plaintiff Parties and the Released Defendant Parties, shall have res judicata, collateral estoppel,
and all other preclusive effect in all pending and future lawsuits, arbitrations, or other proceedings
maintained by, or on behalf of, Lead Plaintiff or any Settlement Class Members, as well as their
respective legal representatives, heirs, executors, administrators, predecessors, successors,
predecessors-in-interest, successors-in-interest, and assigns, and any claims through or on behalf
of any of them.
25. No Admissions — Neither this Order and Final Judgment, the Stipulation (whether
or not consummated), including the exhibits thereto and the Plan of Allocation contained therein
(or any other plan of allocation that may be approved by the Court), the negotiations leading to the
execution of the Stipulation, nor any proceedings taken pursuant to or in connection with the
Stipulation and/or approval of the Settlement (including any arguments proffered in connection
therewith) shall be deemed or argued to be evidence of or to constitute an admission or concession
by: (a) Defendants or any other Released Defendant Parties as to (i) the truth of any fact alleged
by Lead Plaintiff, (ii) the validity of any claims or other issues raised, or which might be or might
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have been raised, in the Action or in any other litigation, (iii) the deficiency of any defense that
has been or could have been asserted in the Action or in any other litigation, or (iv) any
wrongdoing, fault, or liability of any kind by any of them, which each of them expressly denies;
or (b) Lead Plaintiff that (i) any of their claims are without merit, (ji) any of Defendants had
meritorious defenses, or (iii) damages recoverable from Defendants under the Complaint would
not have exceeded the amount of the Settlement Payment. The Released Defendant Parties may
file the Stipulation and/or this Order and Final Judgment in any action that has been or may be
brought against them in order to support a claim or defense based on principles of res judicata,
collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory
of claim preclusion or issue preclusion.
26. Entry of Final Judgment — There is no just reason to delay the entry of this
Judgment as a final judgment in this Action. Accordingly, the Clerk of Court is expressly directed
to immediately enter this final judgment in this Action.
27. Retention of Jurisdiction — The Court retains jurisdiction over the Parties,
including Class Members, for the purposes of construing, enforcing, and administering this Order
and the Judgment, as well as the Stipulation itself.
aay of |!
SO ORDERED this 30 — day of ang 2025.
Or Pave Can
The Honorable Denise J eee y
United States District Judge
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Case 1:23-cv-10524-DJC
Dennis Bent
Anthony Colarusso
Jonathon K. Dock
Brett Healy
Todd Krummel
J. David Kyle
Jack Leonard
Brian Napier
Document 106
Schedule 1
Filed 07/30/25
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