DraftKings NY Court Transcript 11.25

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Here's the transcript of the court hearing in New York state the attorney general filed for a preliminary injunction against DraftKings, FanDuel and Yahoo daily fantasy sports.

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INDEX NO. 453054/2015

FILED: NEW YORK COUNTY CLERK 11/30/2015 12:31 PM
NYSCEF DOC. NO. 106

RECEIVED NYSCEF: 11/30/2015

In The Matter Of:
People of the State of New York v.
DraftKings, Inc.

November 25, 2015

Original File 25NOVEMBER2015 DRAFTKINGS.txt

Min-U-Script® with Word Index

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK:
CIVIL TERM PART 13
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THE PEOPLE OF THE STATE OF NEW YORK
by ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York,

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Plaintiff,
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- against -

INDEX NUMBER:
453054/2015

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DRAFTKINGS, INC.,
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Defendants.
- - - - - - - - - - - - - - - - - - - - - X
71 Thomas Street
New York, New York
November 25, 2015

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BEFORE:
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HONORABLE MANUEL J. MENDEZ, Justice.
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APPEARANCES:
STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
ERIC T. SCHNEIDERMAN
Attorney for the Plaintiff
120 Broadway
New York, New York 10271-0332
BY:
KATHLEEN A. McGEE
KARLA G. SANCHEZ
JORDAN SALBERG
AARON CHASE
JUSTIN WAGNER
ASSISTANT ATTORNEYS GENERAL.

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(Continued on next page.)
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APPEARANCES:

(Continued)

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BOIES, SCHILLER & FLEXNER LLP
Attorneys for the Defendant
595 Lexington Avenue, 7th Floor
New York, New York 10022-6138
BY:
DAVID BOIES, ESQ.
JONATHAN SCHILLER, ESQ.
JOSHUA I. SCHILLER, ESQ.

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GIBSON, DUNN & CRUTCHER, LLP
Attorneys for the Defendant
200 Park Avenue
New York, New York 10166-0193
BY:
RANDY MASTRO, ESQ.

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Margaret Baumann
Anne Marie Scribano
Official Court Reporters

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK:
CIVIL TERM PART 13
- - - - - - - - - - - - - - - - - - - - - - X
THE PEOPLE OF THE STATE OF NEW YORK
by ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York,

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Plaintiffs,
INDEX NUMBER:
- against 453056/2015

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FANDUEL, INC.,
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Defendant.
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71 Thomas Street
New York, New York
November 25, 2015

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BEFORE:
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HONORABLE MANUEL J. MENDEZ, Justice.
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APPEARANCES:
STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
ERIC T. SCHNEIDERMAN
Attorney for the Plaintiff
120 Broadway
New York, New York 10271-0332
BY:
KATHLEEN A. McGEE
KARLA G. SANCHEZ
JORDAN S. SALBERG
AARON CHASE
JUSTIN WAGNER
ASSISTANT ATTORNEYS GENERAL.

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(Continued on next page.)

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APPEARANCES:

(Continued)

DEBEVOISE & PLIMPTON, LLP
Attorneys for the Defendant
919 Third Avenue
New York, New York 10022
BY:
JOHN S. KIERNAN, ESQ.
DAVID SARRATT, ESQ.
MATTHEW E. FISHBEIN, ESQ.

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Margaret Baumann
Anne Marie Scribano
Official Court Reporters

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THE COURT:

Okay, on is it record.

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Good afternoon, everyone.

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It is now 12:05.

I got a request by the parties

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that they would like a little more time in order to make

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their arguments, so the Court is prepared to do the

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following:

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The Court is going to give each side one hour,
one hour.

You use your time whichever way you see fit.

I

am giving you one hour.
So we are going to go between now and 1:05 at which

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time we will stop, break for lunch, and reconvene at 2:05

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when the other side will then argue, if you want.

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want to leave some time in your argument to rebut or reply

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to the other side's argument, make sure that you leave ten,

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fifteen minutes at the most.

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If you

Okay.

So, we had four motions last week.

Two weeks ago I

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heard some motions on from the Plaintiffs, then DraftKings

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and FanDuel, and I adjourned those matters to today.

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The Attorney General has filed additional papers,

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not only in opposing the motions that were previously made,

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but also moving for a preliminary injunction, so I guess we

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will hear those first.

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Argument on all the motions at the same time.

I'll

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have the State go first, and then it will be followed by

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defendants in the State's case, which is FanDuel and
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DraftKings.

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So, who is going to argue on behalf of the State?

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MS. McGEE:

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I am, your Honor.

Good afternoon.

Kathleen McGee.

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THE COURT:

Before you begin --

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MS. McGEE:

Yes.

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THE COURT:

-- look at the clock.

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MS. McGEE:

Yes, sir.

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THE COURT:

So it begins now.

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MS. McGEE:

Thank you, your Honor.

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Today the State is before you pursuant to Executive

It is 1:08.

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Law 6312 to request that this Court grant a preliminary

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injunction against Defendants, DraftKings and FanDuel, to

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enjoin them from promoting and operating illegal gambling in

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New York State.

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Section 6312 purposefully allows for this expedited

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relief when the State can demonstrate a likelihood to

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succeed on the merits, that there is irreparable harm in not

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granting the relief, and that the equities weigh in the

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State's favor.

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The State has clearly met its burden here today.

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That we will discuss, use the majority of our time to

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discuss the main issue before the Court which is

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demonstrating that we are likely to succeed on the merits

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because DraftKings and FanDuel are promoting and operating
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illegal gambling.

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Gambling is illegal in New York pursuant to our

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Constitution with three enumerated exceptions, not including

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fantasy sports.

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How do we know whether or not something is

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gambling?

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definition has three elements:

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We looked to Penal Law Section 225.

The

One, that there is an agreement that the bettor

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receive something of value when a certain outcome does

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occur, and he does.

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This is undisputed.

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He receives prizes of up to $1 million.

Second element that the bettor, quote, "stakes

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something of value," unquote, upon a particular outcome.

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does.

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No matter what you call it, entry fee, wager, bet,

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or stake, the bettors stake something of value.

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money.

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code as including money.

They stake

Indeed, something of value is defined in the penal

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The last element is whether the outcome depends on

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a future contingent event not under his influence or

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control.

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He

I would like to focus, your Honor, on this standard
now.
So what is the future contingent event out of the
control or influence of the bettor?
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For daily fantasy sports, it is the performance of

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athletes in real world games which no daily fantasy sports

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bettor can control.

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In the words of FanDuel, the outcome of the game

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is, quote, "contingent on the positive performance of all of

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their players," unquote, in the real sports events.

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fact, if the athletes do not perform or the games are not

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held, there can be no daily fantasy sports

In

winner or loser.

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The winner of each daily fantasy sports contest is dependent

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on what happens in the real games and no one can foresee

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what will happen in any of those real games.

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Bettors win or lose points based on how many yards

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are rushed or runs batted in, whether there was a touchdown,

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or a fumble at the goal, how many sacks there were, which

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players were benched, whether the game was suspended, and so

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on and so on.

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Each of these events is out of the control of the

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bettor.

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influence how many yards a player runs or how many goals he

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scores, what plays are run, or even whether he slips on the

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turf because it is wet from the rain.

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There is absolutely nothing they could do to

For example, in People v. Wright, the Court

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affirmed the conviction of a man charged with gambling.

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that game, bettors selected one baseball team for every day

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of the week with the exception of Sunday, and, at the end of
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In

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the week, the pool teller -- pool seller, rather, tallied up

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the runs scored by each team and made cash payouts to the

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bettors whose 16 combinations scored the most cumulative

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runs.

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The Court recognized that this scheme, a forerunner
of contests, like daily fantasy sports was gambling.

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In short, when I play DraftKings or FanDuel, I
place my bet, I pick my team, and then I watch TV.

The rest

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is up to the athletes, and all I can do is watch the event

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unfold before my eyes, perhaps, while yelling at the TV a

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bit.

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Your Honor can stop right there.

The State has

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demonstrated all three elements, and, thus, has a likelihood

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of success on the merits.

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But, if you need another reason to find that the

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Defendants are engaged in promoting and operating illegal

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gambling, daily fantasy sports is also a game of chance

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under the Penal Law.

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Again, we have demonstrated that something of value

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was wagered and that there is an agreement to receive

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something of value.

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The third element as an alternative to the question

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of whether the outcome is based on a contingent event is

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whether the bettor is involved in a contest of chance.

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An illegal contest of chance is defined in the
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Penal Law as any contest, game, gaming scheme, or gaming

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devise in which the outcome depends in a material degree

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upon an element of chance, notwithstanding that skill of the

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contestant my also be effective therein.

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The test of the statute is clear.

The only inquiry

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the Court must make to determine whether daily fantasy

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sports are contests of chance is whether the games played on

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the daily fantasy sports sites depend on chance to any

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material degree.
The facts shows squarely that they do.

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pervades daily fantasy sports.

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uncertainty of sports events in the real world.

Chance

Outcomes depend on the

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The list of chance occurrences that directly affect

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whether someone wins or loses a daily fantasy sports game is

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limitless:

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An athlete injury, a fluke, lucky shot, a streak, a

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tipped ball, dropped pass, missed tackle, even the weather

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on any given day, especially if a game is rained out.

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of those chance occurrences determine who wins and who loses

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daily fantasy sports contests.

All

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It is crucial for the Court to understand that

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skill can play some role in who does better or worse in

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Fantasy Sports contests and that is what their experts say.

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But, this is obvious.

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exhibit skill, that skill at gambling.
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Some exceptional bettors
Some bettors study

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box scores more than others.

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hit or stand in blackjack.

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material in many forms of gambling.

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Some know the best times to
Skill and chance are both

But the simple fact is that chance is material to

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daily fantasy sports games.

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daily fantasy sports games, and when chance is a material

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element in daily fantasy sports games, New York law is clear

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it is illegal gambling, and that is the text of the statute,

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It is actually inherent in

and the Court need go no further.

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The Defendants today advocate for a different test,

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they advocate for a dominating element standard, but that is

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not the law.

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The Defendants make much of People v. Lavin.

That

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case determined that a bunt, a game wherein bettors guessed

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the number of cigars that would be taxed in a given month

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was a game of chance because chance was a dominating element

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in the game.

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standard in New York for contests of chance for years.

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50 years after Lavin, the legislature changed the law.

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And that phrase "dominating element" was the

Now, the statute asks whether the outcome depends

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in a material degree upon the element of chance

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notwithstanding the skill of the contestants.

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does not say anything about dominating elements.

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For

The statute

What it says is a game of chance exists even if a
bettor uses skill.
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So the Court should not apply Lavin or any other

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case using a dominant element test because that has been

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long superseded by statute.

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because this legislative change dispensed with the difficult

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and, frankly, the impossible task for a Court to attempt to

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quantify with any real certainty the amount of skill or luck

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involved in a game.

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This is particularly important

Before Mr. Wyner was hired as an expert for FanDuel
he said this, quote:

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"I can play both sides of this.

If DraftKings

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wanted to hire me as an expert to prove that it is a game of

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skill, sure, easy to do.

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that it is a game of chance, easy to do.

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bizarre.

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drive a car through either side of the argument," unquote.

If Connecticut wanted to prove
Now, that sounds

It is just the law is not well defined, so I could

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Another expert for defense opined in his submission

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to the Court that the skill chance, quote, "determination is

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difficult to make because there is no well defined principal

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in mathematics or statistics that can be used to measure the

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precise influence that chance has over the outcome of a

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contest or game," unquote.

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That is why the Court need not concern itself with

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all of the various expert affidavits submitted by

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Defendants.

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more skilled at gambling than others, and I don't concede

All they do is suggest that some players are

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that those affidavits even support the conclusions they

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reach.

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But those analyses don't change anything.

If

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chance is a material element of these games, it doesn't

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matter how much quote/unquote "skill" is purportedly

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involved.

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They are illegal gambling.

So even exempting that all of those analyses put
forth by defendants, the State has still demonstrated that
DraftKings and FanDuel are in violation of the law.

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I would add that if the Court were to apply the

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dominating element test of Lavin as the Defendants suggest,

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the daily fantasy sports operators are still in violation of

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the law.

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games it is the dominating factor.

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That is because chance is so inherent in their

The very case defendant stakes so much on, Lavin,

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is strikingly familiar to the case before the Court.

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bettors there were armed with statistical history about past

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performance and asked to make a bet about future events:

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The number of cigars taxed in a given month.

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abilities of the bettors to analyze the statistics at hand,

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however well informed they were about the economics of the

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cigar trade, however good they were at predicting the

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future, the Court found that the guessing involved made it a

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contest of chance, and, therefore, illegal.

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One moment.
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The

Whatever the

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In light of the clear legal prohibition on their

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conduct, the Defendants conjure up several dubious arguments

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to strive to save their gambling enterprise.

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them briefly here.

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I will address

First, there is no factual disagreement between the

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parties about how these games function.

No one disputes

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that the athletic performances upon which these games are

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based are uncontrollable by the bettors and conversely, that

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the lineups are controlled by the bettors.

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they constitute staking value on a future contingent event

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is purely a question of law.

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Thus, whether

Next, the Defendants make what is essentially an

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estoppel or laches argument.

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to the State in our enforcement of the law.

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bring action within the statute of limitations we cannot be

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estopped from enforcing the law.

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These doctrines do not apply
As long as we

Following this, the preliminary relief requested by

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the Defendants, for the same reason that this Court denied

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the temporary restraining orders last week, any requests for

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a preliminary injunction by Defendants must also be denied.

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With respect to the Humphrey decision, which

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DraftKings counsel described last Monday as being pivotal to

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this success before this Supreme Court, a few words need to

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be spent.

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The case is unpublished and from a New Jersey
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federal court, and so, obviously, it lacks any precedential

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value, and the portions relied on by Defendants were already

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also decided after the Court had already dismissed the

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action for failure to state a claim so they are dicta.

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Moreover, despite defendants' repeated statements

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to the contrary, Humphrey is not interpreting even the New

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Jersey gambling statute.

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The Court deals with the New Jersey qui tam statute

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that provides relief to bettors seeking to recover their

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gambling losses.

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of Fantasy football is legal under New Jersey's gambling

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statute, it never opines on what is a game of chance, and it

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never opines on a future contingent event.

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irrelevant to the facts here.

As such, it never opines whether any type

It is completely

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The Defendants use Humphrey and other cases in an

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attempt to conflate the clear elements under New York law.

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First, they take the Court's interpretation of the

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word "bet" and the word "wager," under the New Jersey qui

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tam statute and attempt to apply it to the New York gambling

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statute.

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Yet those words are not in New York's gambling

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definition.

The words in New York statute are,

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quote/unquote, "something of value," which as we already

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discussed means money.

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a foreign qui tam statute cannot change that.

A court's interpretation of words in

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Next, they attempt to argue that if there is an

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entry fee and a prize, there can be no gambling.

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the inquiry here in New York never ends there.

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must undertake to determine whether there is a future

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contingent event and, alternatively, a contest of chance.

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Only after that analysis can a decision on gambling be made.

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But again,
The Court

The Defendants then spin this analogy further out
of control and sound the alarm that the Attorney General is

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criminalizing all types of gaming:

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spelling bees.

Chess, investing, bingo,

That is just not true.

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THE COURT:

Not spelling bees.

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MS. McGEE:

I'm sorry?

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THE COURT:

Not spelling bees.

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MS. McGEE:

Not spelling bees, your Honor.

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In

fact, I'll elaborate on that a bit.

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The only game at issue here is daily fantasy

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sports.

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spelling bees.

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an entry fee and the prize, the outcome is one they could,

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obviously, influence, spelling the right word.

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No one is attacking bingo marathons, investing or
In those competitions, while the players pay

If, however, someone ran a website taking millions

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of dollars and bets placed on the outcomes of spelling bees,

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that would be illegal gambling because the spelling bee is

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the future contingent event.

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hours poring over the grammar school educations of the
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Even if the bettors spend

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spelling bee contestants and running algorithms to determine

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which words were likely to be presented, and even if the

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bettors could put together fantasy team comprised of

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competitors in various different spelling bees, I know it is

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a bit laughable, but so is the Defendants' spelling bee red

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herring.

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There is a critical distinction between paying for

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yourself to enter a contest and betting on others.

Daily

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fantasy sports is about betting on what others do.

That is

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gambling.

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The Defendants' contests are not a bunch of clicks

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of the mouse or taps of an iPhone.

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beyond the computer scheme on the field of each real-life

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athletic competition upon which the success or failure of

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these wagers are based, beyond this computer screen.

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It is what is happening

What DraftKings and FanDuel really offer is a way
to bet on sports.

Top bettors win all the money.

Defendants make much in their papers about the fact

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that in daily fantasy sports the vast majority of winnings

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go to a slim minority of top bettors.

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bettors may win more often, but that is true of many forms

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of wagering.

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predicting the odds.

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High performing

That just means that they're better at

(Continued on following page.)

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Under the law, whether a bettor is superior to

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others at making her predictions is irrelevant to the

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question of whether she is betting on a future contingent

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event not under her control or influence.

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betting.

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It is still

The game of poker has been declared unlawful

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gambling in New York as a game of chance and yet, as we all

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know, some poker players are far more successful than

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others.

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Poker games.

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game of chance under New York law.

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exerting control or influence over the outcome of each hand

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played:

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We see them on TV winning their World Series of
But that success does not eliminate poker as a
In poker, the player is

Fold, raise, ante, bluff or go all in.
The defendants here attempt to distinguish poker

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because they say having cards dealt is an element of chance.

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But that's just the order of chance.

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sports, the element of chance comes later in the game when,

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once the daily fantasy sports bettor sets their line-up, she

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has no control or influence over the outcome of the game.

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In daily fantasy

Behind closed doors, DraftKings and Fanduel agree,

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their presentations to investors have literally included

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comparisons to other forms of gambling and describes their

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operations in gambling terms.

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and Fanduel are promoting and operating gambling.

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gambling because their games rely on a future contingent

And that's because DraftKings
They're

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beyond the player's control or influence.

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because they are games where chance is a material factor in

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the outcome.

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Fanduel are promoting and operating gambling.

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They're gambling

Any way one looks at it, DraftKings and

The irreparable harm is presumed by law when

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enforcing a statute, as the State does in this case.

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it's clear that, with every day that the defendants promote

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and offer illegal gambling, the harm to New Yorkers grows.

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And

And the equities weigh overwhelmingly in the

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State's favor, as set out more fully and completely in our

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briefs.

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DraftKings and Fanduel are promoting and offering

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illegal gambling in New York State, period.

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the Court to enter a preliminary injunction enjoining the

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defendants, DraftKings and Fanduel, from promoting and

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offering their daily sports betting in New York State.

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Today we ask

To be clear, we are not requesting that this Court

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shut down DraftKings and Fanduel.

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operate in other jurisdictions, if it is legal to do so

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there.

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They will be free to

At this time, your Honor, I'd like to reserve the

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rest of our time for rebuttal.

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THE COURT:

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Between now and 1:00 o'clock, I'll hear the

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defendant.

You have 30 minutes for that.

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Who wants to go first?

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MR. KIERNAN:

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John Kiernan for defendant, Fanduel.

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As you say, we are also the claimants in our

Thank you, your Honor.

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request for an injunction, but we are also defendants in the

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State's motion for an injunction.

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I think maybe it's useful to start on a point of
common ground, because, remarkably, there is a beginning

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point of common ground here, which is the recognition that

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there is a category of event called a true contest that the

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State agrees with us is not a gambling event, even though it

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involves the conveyance of an entry fee and the payment of

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prize money to the winners.

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The State says on page 3 of its brief "Paying an

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entry fee as a competitor in a true skill game is not

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gambling.

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prizes."

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Everyone that enters will receive pre-announced

And on page 22 "Entry in a bona fide skill game is
not gambling."
And that's something that's been recognized by

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many courts, by the Fallon and Humphrey courts.

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court here in New York, the Humphrey court in New Jersey,

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the American Holiday Association court in Arizona.

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The Fallon

And it's the source, ultimately, your Honor, of
that long list that you've heard snippets of, of the kinds

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of contests that have entry fees and they have prizes to the

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winners.

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But everyone agrees that, not only are they not

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gambling, they're a valued and recognized part of the

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American social fabric.

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fishing contests, your hole-in-one contests, your essay

8

contests, your county fair competitions of all kinds, your

9

beauty contests, marathons and other road races.

10
11

And that's your spelling bees, your

And you could go on, because this is such a
well-recognized component of the American scene.

12

And whether one of those contests take place on

13

the internet or just in real life isn't a factor that goes

14

into the analysis.

15

is there a preannounced prize and is there what the State

16

calls a true contest, that is a contest of skill.

17

contests have been recognized many, many times.

18

court after court has said, including the ones I just

19

identified, once it's recognized to be a true contest, it's

20

actually not necessary to do any kind of fine calibration to

21

determine how much is skill and how much is chance in the

22

contest.

23

The analysis is, is there an entry fee,

And those
And as

In fact, the way the courts resolve it is that

24

they say that, in those contests, the payment of the entry

25

fee is not a wager, is not a bet and, under New York

26

formulations, is not staking or risking something of value,

22
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which is the same thing as a wager or a bet.
So the State, as I say, does not dispute the

4

existence of these true contests as reflected by the

5

comments just now.

6

contest type of event is not applicable to fantasy sports

7

for two reasons.

8

What they're saying is that the true

By the way, just to go back to the statute, if

9

you've established that it's not an entry fee, that an entry

10

fee is not a wager or staking or risking something of value,

11

then you don't even need to get to the second half of the

12

statute that asks whether it's a contest of chance or it's

13

staking something on a contingent future event not under the

14

participant's control, because you're done at the beginning.

15

And that's why, for example, we'll talk about

16

Humphrey in a minute, why Humphrey found it unnecessary to

17

reach the degree to which fantasy sports were a contest of

18

chance, not because it would not be relevant under the New

19

Jersey gambling statute, but because at the threshold of

20

fantasy sports were not a gamble, wager or stake under New

21

Jersey law.

22

So the State says there are two reasons why

23

fantasy sports contests are not contests, true contests

24

within that meaning.

25
26

The first is, as you've heard here today that they
say that they're contests of chance.

23
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2

And then the second is they say that that fantasy

3

sports participants are not participants in a contest,

4

they're mere observers, just like gamblers at a sporting

5

event, just like, as the example just given, like the

6

observers in a spelling bee.

7

contest.

8
9
10

They have no influence on any

They're simply gambling.
Let me take those in turn because both of them are

wrong.
First, on the contest of chance, fantasy sports

11

contests are contests of skill under any reasonable

12

definition of the term.

13

The State hasn't really contested, in fact, it

14

just reaffirmed in the comments just now, the concentration

15

of winning that occurs in fantasy sports contests, which is

16

consistent with its character as a game of skill.

17

fact, the State has stressed that concentration of winning

18

in more skilled players, even though it reinforces the

19

degree to which these contests are contests of skill and

20

note that concentration occurs, not only in massive

21

tournaments, but also in the 50-50 contests and the

22

head-to-head contests that Fanduel and other fantasy sports

23

sponsors hold, where everyone who enters has statistically a

24

50 percent chance of winning.

25

enormous concentration of skill in the winner, in the more

26

skilled -- of wins in the more skilled players.

And, in

You still see the same

24
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2

Now, we've submitted with our papers the affidavit

3

of MIT professor Hosoi, who has been conducting a multi-year

4

longitudinal study; that is, the study is over a multi years

5

of performance of Fanduel competitors.

6

consistent with recognizing that fantasy sports are contests

7

of skill in three particular ways worth identifying.

And her results are

8

First, the studies show result differentiation.

9

That is, Fanduel competitors consistently, overwhelmingly

10

consistently, outperform, not only random selections of

11

competitive rosters, fantasy rosters, but also rosters that

12

have been adjusted to simulate some degree of skill.

13

Nevertheless, the Fanduel players enormously and

14

consistently outperform them.

15

The second is replication, which is a common

16

question of skill.

17

overwhelmingly, that the most skilled players remain the

18

most skilled players; the middle level players remain

19

generally middling; and the poor players remain poor players

20

in a way that would be consistent with a skill-based kind of

21

contest.

22

And what her tests show is,

And the third is improvement over time.

That is,

23

her studies overwhelmingly demonstrate that people who

24

participate in these contests longer and longer get better

25

and better at it.

26

Now, all those three characteristics are

25
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2

consistent.

3

contest of skill.

4

In fact, they're powerfully indicative of a

Now, what the State says is, well, it's skill.

5

They actually, apparently, don't contest that it's skill.

6

It's just skill at gambling.

7

your Honor.

8

That's just characterization,

What the fantasy sports contestants believe is

9

they're developing skill at the game that they're playing,

10

which is selection of a roster of players that they believe

11

will outperform another set of rosters of players selected

12

by other people, all of whom are engaged in this

13

fascinating, compelling game that's brought in 50 million

14

users in the United States of trying to replicate the

15

experience and the challenge of being a general manager or a

16

coach of picking players based on how they're expected to

17

perform and pitting your skill at picking those players

18

against the way other people pick players.

19

contest.

20

That's a

It's in the nature of a contest, your Honor.
Now, the fundamental approach of the State, we're

21

talking about contests of chance, in its papers and again

22

today, is to suggest that, if there's a possibility the

23

single contingent event could cause the result of a contest

24

to change, then that's a chance event.

25
26

Now, the State, unsurprisingly, cites no authority
for that proposition, because it makes no sense and it is

26
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2

actually fundamentally incompatible with the definition of

3

contest, because that is a feature of every single content.

4

Fluke events.

5

blown call, a change in weather, the one word that the

6

spelling contestant doesn't know, even though he or she has

7

studied every other word in the dictionary, can change the

8

outcome.

9

made contests contests of chance, then there would be no

And the State identified some of them.

That is a characteristic of contests.

10

such thing as a contest of skill.

11

recognized that there are many contests of skill.

A

And if that

The courts have

12

But the right way to think about this and the only

13

sensible way and the way recognized by the Court is to think

14

about it in terms of probabilities.

15

What is skill?

Skill is the tendency or the

16

capacity of someone, through the application of effort and

17

aptitude, to increase the probability of a favorable result

18

in a contest or another endeavor over what would happen if

19

it occurred at random.

20

Or, to cite the Tillman case, which is not cited

21

in our brief, but can be found at 13 Misc. 3d 736, a 2006

22

decision, "A game of skill, although the element of chance

23

cannot be eliminated, is one in which success depends

24

principally on the superior knowledge, attention, experience

25

and skill of the player, whereby the elements of luck or

26

chance in the game are overcome and proved or turned to his

27
1
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Proceedings
advantage."

3

Or, if you think about the Nevada Supreme Court's

4

decision in the Hole-In-One case that we discussed in the

5

brief, your Honor, it's actually a good example.

6

Supreme Court said there was ample basis for the trial court

7

to conclude that the hole-in-one contest was a contest of

8

skill, even though there was testimony -- they established

9

things that were intuitively clear; that is, as even a

10

non-golfer like me can recognize, what skill will do is

11

increase the capacity of a competitor to get the ball more

12

often of the time closer to the hole on a shot where he'll

13

have the best opportunity to drop into the hole.

14

you're going to have to combine it, as the Nevada Supreme

15

Court recognized, with some element of luck, about which

16

ball is actually the first one to drop in.

17

alter that the contest is one of skill, because the skill is

18

the capacity to increase your probability for succeeding.

19

And that's true, even though it's at all times possible that

20

a duffer could just come up, step up and defy all the laws

21

of probability and accomplish the feat, even before the

22

skilled players do.

23

The Nevada

Now,

And that doesn't

Skill, nevertheless, remains the capacity, through

24

effort and aptitude, to increase your probability of

25

outcome.

26

outcome of a single event.

And it can't be measured any time based on the

28
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2

The State is right that, in any sporting contest,

3

all kinds of flukes, within or outside the control of the

4

players -- the gust of wind, the bad call are good examples

5

of things that are outside the control of anybody on the

6

field, can't be influenced by anyone on the field.

7

change the result of an individual contest.

8

measure whether the game -- the contest is one of skill or

9

luck based on that.

They can

You can't

10

What skill does is it puts players in the position

11

so that they are close to winning and then the fortuities of

12

the laws of probability take over from there and they can

13

cause all kinds of things that make watching contests fun

14

and enjoyable.

15

that are associated with how the laws of probabilities play

16

out.

17

million dollars over a single Fanduel contest when others

18

are more skilled, because that's the way it can break in an

19

individual instance, just like the duffer hitting the hole

20

in one.

21

nature of the endeavor.

They create upsets, they create the dynamics

They can even cause an inexperienced player to win a

But it doesn't alter the fundamentally skill-based

22

So what we have here is, clearly, a skill-based

23

endeavor.

And that, your Honor, we submit, is absolutely

24

consistent, as it must be, because it must proceed

25

logically.

26

consistently viewed as how you think about this luck versus

It is consistent with what the courts have

29
1

Proceedings

2

skill thing in a contest where, the State's right,

3

calibration of exactly what, how much makes something skill

4

or luck is a difficult one.

5

Although Professor Hosoi's analysis does point out

6

and explains, at length, for example, how the skill-based

7

results of fantasy sports are much higher than that of, for

8

example, poker, which the Court relied on.

9

at a different level of skill, skill-based reliability or

10

You're operating

capacity to achieve a favorable result.

11

But that's -- we explain in our briefs all the

12

courts that continue to use the dominating element test that

13

was articulated by the New York Court of Appeals before the

14

statute was applied.

15

We cite all the authorities that recognize that,

16

when State attempted to codify the Penal Law on this subject

17

in 1965, there was an elaborate effort to treat that as a

18

capturing of the common law, including the law stated by the

19

highest courts in the State, not an attempt to alter it, as

20

the State asserts today.

21

And there are numerous cases that have taken that

22

more material element standard that the Courts relies on, in

23

its comments to you today and in its papers, and recognize

24

that what that must mean still is you look fundamentally at

25

what is the fundamental character of the event, of the

26

contest.

If the fundamental character of the contest is one

30
1

Proceedings

2

where the application of aptitude and effort significantly

3

affects the prospects -- significantly improves the

4

prospects of prevailing in the contest, that is a contest of

5

skill, no matter whether, as is the case in any contest, an

6

individual instance will lead to a result that is different

7

from what the laws of probabilities would say is the norm.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

(Continued on the next page)

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THE COURT:

But what I think they are arguing is --

3

I don't think that they are -- I believe that what they are

4

arguing is the fact that you have the skill to pick the

5

players, fine, you have that skill.

6

on someone else's skill to play the game, and that is your

7

contingency there, how that other person performs.

8
9
10

MR. KIERNAN:

But now you are relying

So let me turn to that, your Honor,

because you are absolutely right.
THE COURT:

And I think that is what happened in

11

Gibson also, the case you cited in your brief, where the

12

golfer paid to enter, and then that golfer went and took the

13

shot, whether he hits a hole-in-one, but the golfer is doing

14

it himself.

15

Well, the court says that's skill.

16

put it in, fine; if not, you are betting on yourself

17

basically, that's your skill.

18

someone else to do it.

19

If you could

You are not relying on

MR. KIERNAN: You are exactly right, and you've

20

gotten to exactly what is the central nub of our dispute,

21

the central nub of our difference with the State because our

22

contention on that, you have identified it correctly, it is

23

the central issue.

24

participants are mere observers of the contest being played

25

by somebody else or are actually participants in their very

26

own contest that is separate and apart from the contest that

It is whether fantasy sports

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32
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3

Proceedings
is taking place on the field.
And there are two characteristics, your Honor, of

4

fantasy sports.

We talked actually already about what

5

fantasy sports are, that the nature of the fantasy sports

6

contestants is, fantasy sports contestant says, there is a

7

skill I think I could develop.

8

general managers or coaches, generally.

9

identify a roster of players that is a superior performing

I think I can do better than
I think I could

10

roster of players.

11

me to follow football because I'll find myself watching an

12

Arizona Cardinals, Atlanta Hawks -- Atlanta Falcons, sorry,

13

game at 11:00 at night because I thought there was a player

14

there that I wanted to evaluate.

15

By the way, that makes it more fun for

So there is an evaluation of players, but there is

16

an assessment of the value of the capacity for performance

17

of those players that is the characteristic activity of

18

fantasy sports, a separate contest.

19

Now, there are two characteristics of that contest

20

that set it apart from all the analogies that this State

21

offers about the person who is watching the spelling bee or

22

betting on the chess game.

23

The first is that there is a purposeful and

24

elaborate detachment of fantasy sports from the actual

25

outcomes of the games and that happens in a couple of ways.

26

First, the rules of fantasy sports says that when
mb

33
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2

you are putting together your team, you are required to

3

diversify your team, your roster across a bunch of different

4

teams, so that your outcomes are detached from the outcomes

5

of the individual games.

6

But the roster that you select, obviously, those

7

eight or ten people, whatever the number is in a particular

8

contest, never step onto a field together.

9

onto a field against anybody else.

10
11

They never step

They're detached from

those, from those contests.
And, of course, the outcomes of the underlying

12

football games are really almost indifferent to the fantasy

13

sports competitor, that is the team could lose, but the

14

selected roster person can perform fantastically, or the

15

team can win and the selected person can perform terribly.

16

When the statute talks about staking something on

17

the outcome of an event, the outcome that the fantasy sports

18

player is interested in, is relevant to the fantasy sports

19

player, is the outcome of this separate contest, and that is

20

the essence of fantasy sports.

21

Now, the second element of fantasy sports that

22

similarly sets it apart and makes it different and makes it

23

different from just somebody who is gambling on an event as

24

the State has stated is indistinguishable from fantasy

25

sports is the degree how fully realized.

26

The Court knows, the Court knows that fantasy
mb

34
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Proceedings

2

sports are played by 50 million Americans.

3

who write books and read books and study up on players and

4

talk about the performance of their fantasy league.

5

separate -- it is a fantasy, it is particular -- it is

6

especially a fantasy context because of that detachment from

7

the actual games that I talked about, but is a complete

8

fantasy contest.

9

There are people

It is a

Participants in competitions for fantasy sports

10

feel like competitors.

11

regularly work very hard to select their teams.

12

believe that their efforts make a difference.

13

excited about that, they find fun in this separate fantasy

14

context of establishing their team and seeing how it does.

15

The evidence indicates that they
They
They're

And that is the fundamental thing that sets it

16

apart.

These other analogies that the State identifies,

17

even the analogies about multiple bets on a sporting event,

18

pool bets, parlay bets and all these other kinds of binary

19

things about whether somebody gets over or under a

20

threshold, fantasy sports are just orders of magnitude more

21

fully realized than that.

22

performance by players.

23

fantasy roster and competing against somebody else and

24

enjoying that so much so that that competition has really

25

been a kind of engrained, become an engrained piece of

26

American culture over recent years, and that is the essence

They're about incremental
They're about accumulating this

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35
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3

Proceedings
of what makes fantasy sports different, your Honor.
And the State says that it is just sort of a verbal

4

act, a verbal act for us to say that that is somehow

5

different from betting directly, and that, frankly, your

6

Honor, doesn't do justice to this enormous organism of

7

fantasy sports where this formation of teams has become

8

something over which people compete, over which skill makes

9

a difference, over which performance is monitored and over

10
11

which prizes are given.
And if you look at the cases that address fantasy

12

sports they come out the same way.

13

of Humphrey, your Honor, but I encourage you to read

14

Humphrey because I think you won't find it the same way that

15

the State has just described it.

16

to the New Jersey gambling statute.

17

about the New Jersey gambling statute, including the

18

definition of gambling, which in New Jersey is wager, bet or

19

stake, which sounds an awful lot like staking and risking

20

something of value in New York value.

21

words, but it is thematically the same.

22

The State is dismissive

It says it is not directed
It expressly talks

It is not the same

The first thing that the State says about Humphrey

23

is that it wasn't applying New Jersey gambling statute.

24

That is not just correct.

25
26

The second thing it says is, in finding, the
Humphrey Court's language is "the success of a fantasy
mb

36
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Proceedings

2

sports team depends on the participant's skill in selecting

3

players for his or her team," just what I've been saying.

4

And as a result, as a matter of law, fantasy sports are

5

legal.

6

The court wasn't talking dictum.

It was offering

7

an alternative holding.

8

law fantasy sports are legal" that is not mere dictum, your

9

Honor.

10

When a court says "as a matter of

The prize itself, the State has suggested the

11

prizes were bobble headed dolls.

12

significance.

13

included flat-screen TVs.

14

or stakes is, as I say, is virtually identical to the

15

language here.

16

There is nothing of

The court expressly engaged on prizes that
The language of the wagers, bets

And what happened in Humphrey, was the Court agreed

17

with the proposition that I'm advancing here, that fantasy

18

sports are their own separate contests as to which there is

19

skill in the participants, and that skill is what makes the

20

difference, that is where participant's influence the

21

outcome, your Honor.

22

Because even though they can't change, you know,

23

various players in the football field may not be able to

24

effect whether the winds blows in a gust or there is a bad

25

call, the point is that there the players on the field are

26

influencing their outcome, and in the particular contests
mb

37
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Proceedings

2

that fantasy sports are competitors are engaged in, they too

3

are influencing the outcome because the outcome they are

4

focussed on is the outcome of their contest, and that is

5

pivotally affected by their skill at selecting their roster.

6

They are actually the movers, the marionettiers of

7

that outcome, and the fact that they aren't participating in

8

the underlying sporting event doesn't alter their role as

9

very active participants in this separate contest, which the

10
11

Humphrey Court recognized.
Now, the Third Circuit said exactly the same thing

12

in the NCAA case that we cited in our briefs.

13

court put it, the court says there is, quote, A legal

14

difference between paying fees to participate in fantasy

15

leagues and single game wagering because again of the nature

16

of fantasy sports as separate contests.

17

There, as the

The United States Congress, your Honor, came out

18

the same way in the UIGEA statute, when it expressly carved

19

out fantasy sports.

20

Now it did so again on the recitation that it

21

recognized that fantasy sports contests were separate

22

contests, but it built in some protections to make sure that

23

fantasy sports satisfied the requirements of that

24

separateness from the underlying contests that I identified

25

as one of the points of distinction.

26

required is that you have to diversify your players across
mb

And so what the court

38
1

Proceedings

2

games so there is no dependency on the single player's

3

performance in any particular game, that the prizes have to

4

be predetermined.

5

satisfies.

Those are all criteria that FanDuel

6

Now, the State says those aren't New York law and,

7

of course, we are not citing them to you suggesting they're

8

New York law.

9

in the case of the Congress or the judges of the Third

We are citing them because these legislators

10

Circuit, and the judges in Humphrey listened to the argument

11

that fantasy sports are separate contests all their own and

12

accepted those arguments and made them the basis of their

13

rulings, and that is what we are urging upon the Court

14

today.

15
16
17

Now, for a minute, let me talk about how this
applies to the statute.
As I have said, if you look at the Humphrey case,

18

if you look at the Arizona case, if you look at Nevada case,

19

what the courts there said is that once you determine that

20

this payment of an entry fee in a true contest where there

21

are prizes to the winner and actual skill involved in the

22

contest is just that, so that you have fallen into this

23

definition of the true contests we talked about earlier, and

24

you identified that there is some skill, it is unnecessary

25

thereafter to go through the second part of the analysis

26

about whether there is a game of chance or a controlling of
mb

39
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Proceedings

2

a contest beyond your -- I'm sorry, the participation in a

3

contest, the outcome is outside of your control.

4

And that is what the State says that Humphrey

5

didn't analyze chance.

6

be able to read it, it is unnecessary for me to do that

7

analysis because I found that this is a true contest.

8
9

What Humphrey said, your Honor will

And that, that same structure applies.

The State

talked about how the statute of New York is applies.

It is

10

the same.

It starts with staking or wagering something of

11

value.

12

they use "bet," they use "stake" in the New Jersey statute.

13

But in all those others cases including Lavin under the New

14

York Court of Appeals before there was a statute, but under

15

the New York Constitution, what they said in the true

16

contest you don't actually have a gamble, that the part that

17

the State concludes on that it is a gamble is actually

18

something that was rejected at the threshold.

19

That is exactly the thing that they use "gamble,"

And so if you are applying the statute, the

20

language of the statute, what that means is you stop there.

21

But even if you don't stop there, Judge, and you get to the

22

second part of the statute where you say, well, it has to be

23

the outcome of an event, it is either a contest of chance or

24

a contingent future event over which the participant has no

25

control.

26

The contest of chance, we've already talked about.
mb

40
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Proceedings
This is a contest of skill, not a contest of chance.

3

And as for the event over which the participant has

4

no control, the contest, the event that the fantasy sports

5

contestant is engaged in is the contest over who selects the

6

best roster, that is something that over, over the outcome

7

of which the contestant has enormous influence, control or

8

influence is, as I said, ultimately the marionettier.

9

So, so under both pieces -- and both pieces of the

10

statute are an independent reason why fantasy sports don't

11

constitute gambling under 205.

12

Now if I may, Judge, just two additional points.

13

THE COURT:

14

after lunch.

15

to you.

16

We will stop at 1, and you can continue

So if you want to start now or later, it is up

MR. KIERNAN:

Well, if the Court wanted to break

17

now that would be great, and I would just take a few minutes

18

after lunch, if that's okay.

19

How much time do I have?

20

THE COURT:

21

MR. KIERNAN:

22

You still have 35 minutes.
I'll sit down in five minutes, thank

you, Judge.

23

THE COURT:

All right, thank you.

24

Let's break for lunch.

25

See you back at 2 o'clock.

26

(Lunch recess.)
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41
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Proceedings

2

THE COURT:

Let's start.

3

Continue your argument.

4

MR. KIERNAN:

5

While reserving three minutes for rebuttal, I want

Thank you, your Honor.

6

to take my final two minutes to go back to your question,

7

which, as I said, goes to the heart of this case, which is,

8

our fantasy sports contestants differ from participants in

9

competitions, their actually participants in their own

10

competitions whose actions influence the outcome of that

11

contest within the meaning of the statute.

12

Judge, is that fantasy sports players are participants in

13

their own contest.

14

And the answer,

If the statute looks to the outcome that matters

15

as being the one where the prizes are paid, that contest,

16

your Honor, is the fantasy sports contest.

17

participant influence the outcome of that contest with all

18

the efforts that he makes to and all the skill he brings to

19

bear in constructing the fantasy roster?

20

And in that sense, he influences the outcome of future

21

contingent events within the meaning of the statute.

22

he control the all future events?

23

in any contest does.

24

No.

Does the

Of course he does.

Does

But no participant

All the fisherman can do is throw his line out in

25

the place that his skill has taught him is the place to

26

throw the line out.

There is still a role for the fish.

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2

And all the football player can do is play his assigned

3

role.

4

offense and defense and a million other contingencies that

5

arise.

6

There are still 10 other players and then there's

The existence of contingencies doesn't change that

7

that player influences -- which is the word in the

8

statute -- influences the outcome of the contest, of the

9

fantasy sports contest.

10

Does the fantasy sports player influence the

11

outcome of that contest when he studies, as he does, picks

12

his chosen roster and then enters the contest?

13

does.

14

makes his participation in the fantasy sports contest of

15

roster selection not gambling under the statute.

Of course he

Through those choices, and because he does, that

16

Thank you, your Honor.

17

THE COURT:

18

Mr. Boies.

19

MR. BOIES:

Thank you.

May it please the Court, your Honor,

20

I'd like to begin by focusing on the question that the

21

Attorney General raised, which is really central to the

22

defense that they have, which says that fantasy sports,

23

daily fantasy sports, are outside of the control of the

24

participants.

25
26

Now, as the Court knows, they've taken the
position that seasonal sports, lawful seasonal sports, are

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not gambling.

3

They've said that repeatedly.

And, if I could, your Honor, I'd like to hand up a

4

binder of some charts that I'm going to refer to as we go

5

through.

6

THE COURT:

Sure.

7

MR. BOIES:

If you turn to Tab 15, Exhibit 15, we

8

discuss there how daily fantasy sports is no more dependent

9

on a future contingent event, the language that they use and

10

the language from the statute, than our seasonal fantasy

11

sports.

12

They say once the game starts, you can't control

13

what happens.

14

real world game here, if that's true, that's as true for

15

seasonal sports as it is for daily fantasy sports.

16

If that's true, and we're talking about the

So the fact that they concede that seasonal

17

fantasy sports contests that have prizes, have entry fees,

18

are lawful and are not gambling is fatal to their claim

19

here.

20

seasonal sports are lawful, not gambling, but that daily

21

fantasy sports somehow are.

22

They cannot have it both ways.

They cannot have that

And, indeed, if you look at Exhibit 16, you'll see

23

a list of the same skills required in seasonal fantasy

24

sports as are required in daily fantasy sports.

25

look at Exhibit 17, you will see that daily fantasy sports

26

actually requires more skill, not less skill, than seasonal

And if you

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fantasy sports.

3
4

In daily, there's no draft.

Every player has an

equal chance of picking their players.

5

In seasonal sports, you've got a draft and where

6

you stand in the draft and what other people have done ahead

7

of you or in other rounds of the draft can affect your

8

ability, that is a matter of chance not under your control.

9

But in daily fantasy sports, every player gets to

10

pick whatever players they want for their roster, they have

11

complete control over them.

12

sharp distinction between any card game, poker or otherwise.

13

Because, in poker, you play the hand that you're dealt.

14

It's true, as they say, you can fold, raise, check, go all

15

in.

16

can't change your cards.

17

chance element.

18

hand.

19

that you have complete control over.

20

Which, again, of course, is a

Those are all different bets.

What you can't do is you

Those cards are random, that's the

In fantasy sports, you don't get dealt a

You get to pick your own team.

And that's something

Now, they say that, once you pick the team, you

21

can't control the real world events that are going on.

22

that is true in any contest that you have.

23

But

For example, if you turn to Exhibit 41, one of the

24

things that we do here is we take a section from the

25

Attorney General's brief at page 20, where they concede that

26

betting on your own horse or paying an entry fee to win a

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2

prize in a race, for the owner of the horse, is not

3

gambling.

4

Belmont Stakes is not gambling, they say.

5

rings, once the gate opens, the owner's got no control over

6

what happens in that race.

7

picked a jockey, but once the gate opens, he's got no

8

control.

9

the extent you're able to change your roster as you go

Thus, paying to enter your own horse in the
But once the bell

The owner has picked a horse,

Just like, once you picked your roster, except to

10

along, you don't have any more control.

11

there actually throwing the pitch, shooting the basket.

12

You're not out

Now, that's true for seasonal sports as well as

13

daily sports, but, more important, that's true in any of

14

these contests, even in a beauty pageant.

15

Once the contestants have walked around and

16

performed and done the other talent exhibitions that they

17

do, it's all up to the judges.

18

over it.

19

the judges are and what the judges' preferences are.

20

have no more control over that final step.

21

mean that they haven't competed in a contest of skill.

22

They've got no more control

It's all up to how the judges rank them and who
They

But that doesn't

And the Attorney General themselves, when they

23

recognize that paying an entry fee to enter your own horse

24

in a race is not gambling, that, by itself, affirms what the

25

Humphrey court ruled, which is the same thing, that paying

26

an entry fee to enter a contest in which you are

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4
5

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participating is not gambling.
And, in that connection, I want to go to the
statutory language of Section 225.
And the statutory language there says that you

6

engage in gambling if you stake or risk something of value

7

upon the outcome of a contest.

8

be a contest of chance or it can be an outcome, even if not

9

of chance, of something that you have no influence over.

And the outcome can either

10

But the question is, what is a contest?

11

Now, the New York Attorney General wants to say

12

that the contest is those real world games because those --

13

that's the only, quote, event or events over which the

14

fantasy player does not have control.

15

The problem is, that isn't the contest for which

16

the player has paid an entry fee and that's not the contest

17

for which the prize is awarded.

18

sports, you're getting a prize for what happens in that real

19

world sports contest.

20

sports, you're getting a prize for what happens in your

21

fantasy contest.

22

the players control.

When you're betting on

When you're betting on fantasy

And that fantasy contest is something that

23

Now, how do we know that they control that result?

24

Well, one of the ways to know that is by looking

25

at all of the complex skill questions that have to be taken

26

into account by somebody who is playing one of these games.

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2

And when we get to trial, the Court will hear testimony from

3

people -- and the Court has seen the Jennings affidavit,

4

who's one of the players, that's in evidence before the

5

Court, one of the actual successful players, who talks about

6

how much skill is involved.

7

But even more clearly, your Honor, we know that

8

this is a game that is within the control and influence of

9

the players that they are participating in because of the

10
11

overwhelming statistical results.
Now, the Attorney General, I'm going to come to

12

this at the end when I talk about the fact that we're here

13

for a preliminary injunction, the Attorney General has not

14

put in any evidence, any admissible evidence, showing how

15

much skill is involved or how much chance is involved.

16

haven't attempted to do that.

17

They put in two affidavits by psychologists.

They

And,

18

as we indicate, in these charts, in charts 6 and 7, neither

19

of those psychologists address at all any issue of skill or

20

chance or influence or control.

21

studies, they don't provide any identification of the basis

22

of their opinions.

23

anything to back it up, based on anonymous sources, the

24

circumstances of which we are not told anything about, not

25

even how many people they're talking about.

26

They don't provide any

They're conclusory opinions without

And as we indicate in our Exhibit 5, the only

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2

other person is a dean of a business school who's put in an

3

affidavit that, remarkably, again, does not address the

4

central issue in this case, which is, are the players of

5

fantasy sports able to influence the outcome of their

6

contest; are they participants or not?

7

Because the AG, in their brief, has said

8

repeatedly that participants can bet on themselves.

9

Participants can bet on themselves.

10

example.

11

brief.

12

That's their horse race

They give that example a number of times in their

And so the question is, are daily fantasy sports

13

players people who are actually participating in what

14

they're doing?

15

Court's going to hear a lot of testimony if there's a trial,

16

will understand that they are participating intensely, they

17

are looking hard at it.

18

skill-based analysis.

19

the actual dispersion of results.

20

And anybody that's played this, and the

This is, they recognize, a
And the proof is in the statistics,

You've got evidence in front of you in which

21

eminent professors of statistics have done analyses that

22

indicate that the chance and the likelihood that you could

23

have this dispersion of results, other than based on skill,

24

is one in what they call a centillion, which is 1 followed

25

by about 50 zeros.

26

comprehend.

It is smaller than anybody can

It is smaller than we can even conjure up on

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2

our electronic calculations.

That's the likelihood that

3

these results could be due to something other than skill.

4

And I come back again to the statutory language.

5

The statutory language says it's gambling if you are going

6

to get something of value based on the outcome of a contest

7

that is either of chance or beyond your control.

8
9

And so what is the contest for which you're
getting a prize?

It's not the sporting event.

There's no

10

prize for any of those sporting events.

11

which you're getting a prize is the daily fantasy sports

12

competition.

13

and over again in the affidavits of Professor Wyner,

14

Professor Rubenfeld, Professor Giulala.

15

The contest for

And that is something that we have shown over

And the MIT professor that Fanduel has submitted

16

show that this is under the control of the fantasy

17

participants and they are actually doing the competition.

18

They are competing against other people who are doing the

19

same thing.

20

When I enter -- not me, but when my son enters,

21

when my son enters a fantasy competition, he isn't competing

22

against the real world players, he's competing against the

23

other fantasy players who are constructing their own

24

rosters.

25

the excitement is about, and that's what the prize is

26

awarded for, and that's what the entry fee is paid for.

And that's what the competition is, that's what

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2
3

So for all of those reasons, there's no likelihood
of success on the merits.

4

I think, if this case continues, the Court's going

5

to hear a summary judgment motion from DraftKings and, I

6

suspect, Fanduel as well.

7

But there's certainly not a likelihood of success

8

on the merits that could justify the extraordinary remedy of

9

a preliminary injunction at this time.

10

Now, there is a second independent reason why the

11

AG's case fails.

12

contest that's not of chance, the outcome of which is under

13

the control of participants, but this is not a wager.

14

is the payment of an entry fee to win a prize.

15

And that is that, not only is this a

This

And the Court heard about the Gibson case, the

16

Nevada Supreme Court case.

Interesting, that case relies on

17

an earlier New York case that made the same point.

18

relies on the Lavin case that both sides have cited to the

19

Court.

20

case.

It

And the Nevada Supreme Court is relying on that
So it's not just the New Jersey court.

21

And I agree with my colleague, we urge you to read

22

that case.

We urge you to read these other cases as well,

23

because they all show that this is an area in which there is

24

consensus that, when you're paying an entry fee to

25

participate in a contest and there's a prize, that's not

26

gambling.

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2

And, again, in an indirect way, the AG concedes

3

that when they say that somebody entering their horse in a

4

race is not gambling, even though you pay an entry fee and

5

even though you get a big prize.

6

Now, I want to reserve five minutes for rebuttal

7

and I want to give my colleague, Mr. Mastro, some time to

8

address the Court.

9

But before I do that, I want to remind the Court

10

how we are here.

We are here on two motions for a

11

preliminary injunction.

12

which is to shut us down.

13

about shutting us down outside New York, but shutting us

14

down in New York.

15

New York, that's what they're seeking to do with a

16

preliminary injunction.

One is the motion of the State,
And, yes, they're not talking

They're going to destroy the business in

17

And we talk about, you know, in charts 2 and 3 and

18

4, preliminary injunctions are drastic remedies that require

19

a clear right to it under the law, an undisputed fact.

20

They've got to have a really strong factual showing.

21

particularly true where, as here, they're trying to upend

22

the status quo.

23

That's

Ordinarily, as we point out in our brief and in

24

some of these charts, you try to get a temporary restraining

25

order or a preliminary injunction to preserve the status

26

quo.

Here, they're trying to change the status quo.

And

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2

it's not just the status quo of a year or two.

3

status quo that's gone on for eight years.

4

there's been daily fantasy sports in New York.

5

DraftKings entered four years ago, it had been going on for

6

four years.

7

This is a

For eight years
When

All sorts of large public companies made very

8

large investments based on their analysis of the legality of

9

this kind of activity.

10

anti sports betting, were supportive of fantasy sports.

11
12

Sports leagues, that are notoriously

All of that contributed to, I think, a widespread
recognition that this was all lawful activity.

13

Now, we're not saying that this is the time or the

14

place for us to invoke estoppel or latches.

15

with the Attorney General that you can never do that with

16

the State.

17

is not estoppel and latches.

18

But that's not the issue here.

We disagree

The issue here

The issue here is the fact that you have a

19

long-standing status quo that they're trying to upend with a

20

preliminary injunction and that is not an appropriate use of

21

a preliminary injunction.

22

to shut down a company who has been operating lawfully for

23

four years in a business that's operated lawfully and openly

24

for eight years and to do that without a trial on the

25

merits.

26

It's not an appropriate situation

One of the things we're saying is that, before you

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2

shut us down, we get our full day in court where you

3

actually listen to evidence.

4

evidence.

5

their assertion of what the facts are.

6

enormous regard for the Attorney General's office, they

7

can't make evidence.

Only precipient witnesses and experts

8

can supply evidence.

And that's what the law requires for a

9

preliminary injunction issue.

And they haven't given you any

They are asking you to make decisions based on
And despite my

It doesn't always require

10

live testimony, but it requires affidavits, declarations by

11

people with knowledge.

12

with anything.

13

And they haven't provided the Court

They've made a number of factual assertions in

14

their argument, but you notice they don't cite anything in

15

the record for any of those factual assertions.

16
17

With that, your Honor, I have -- I will leave only
about three or for minutes for Mr. Mastro.

18

I do want to reserve the balance for rebuttal.

19

THE COURT:

20

MR. MASTRO:

21
22

Okay.
Your Honor, as you know, I can talk

very fast, so let me get right to it.
If I can hand up to the Court, because I want to

23

follow along with something that Mr. Boies just said, which

24

is the dispositive reason for why this case doesn't get out

25

of the box.

26

And one of those reasons, your Honor, that

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2

Mr. Boies didn't really focus on yet, is an admission by the

3

AG's office that fantasy sports games, traditional ones, are

4

perfectly legal, perfectly legal.

5

games?

Daily fantasy sports

Oh, no good.

6

Now, your Honor, look at pages 15 through 17 of

7

the binder, going through all the reasons why it is

8

essentially the same game and, if anything, it requires more

9

skill to do daily sports, fantasy sports betting.

10

Your Honor, that is pivotal to this case because

11

the admission means that traditional fantasy sports games

12

are fine.

13

money down to participate in such a contest with an entry

14

fee, and you pick your team, and your team is performing on

15

the field, and it's based on the team you pick as kind of a

16

general manager or owner of a team.

17

fine.

18

entire season somehow makes it illegal?

19

doesn't make sense.

And it's played the same way, and you can put

And that's perfectly

But simply doing it on a weekend as opposed to an

20

Your Honor, that

It doesn't make sense at all.

Now, your Honor, I gave you the statute, all

21

right, because she left a few pieces out of the statute, all

22

right.

23
24

Let's talk about the pieces of the statute really
quickly, because I've got another minute and a half.

25
26

Stakes or risks something of value upon the
outcome.

That is a threshold question, your Honor, that, if

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2

they don't get out of that box, they lose automatically.

3

In other words, under New York law, for over a

4

hundred years, entry fee to compete in a contest for a

5

prize.

The law in New York has said that for over a hundred

6

years.

All right?

7

Lawrence -- People Ex Rel. Lawrence v. Fallon.

8

hundred years that's been the law in the state.

9

That's your -- that's your People v.
Over a

And what did she say the difference was?

10

the owner of a horse in the Belmont Stakes.

11

time I looked, the owner isn't riding the horse, the owner

12

isn't the horse.

13

then the team is performing.

14

New York Court of Appeals has said for over a hundred years

15

that is an entry fee, a contest, the predetermined prize.

16

And that, your Honor, that, your Honor, they're

17

Okay.

That's
Last

The owner is putting the team together and
That's perfectly legal because

dead on that basis.

18

Humphrey says the same thing.

19

And let me just be crystal clear.

She reads a few

20

words out.

She says, oh, that was only about the New Jersey

21

qui tam statute.

22

was about a federal case, about a federal law.

23

admit they were wrong.

Now they say it's about the New

24

Jersey qui tam statute.

The qui tam that says, if it's

25

illegal gambling in New Jersey, a private person can bring a

26

qui tam action.

Remember, the other day they told you it
They had to

The illegal gambling is defined under the

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2

New Jersey statute, not just as betting and wages.

3

"betting, wages or stake".

4

That's what New Jersey gambling law says, "stake".

5

what New York law says.

That's what I handed up to you.

6

And, your Honor --

7

MR. BOIES:

8

It says

That's

These are great points, but I'm going

to cut it off.

9

THE COURT:

You're running out of time.

10

MR. MASTRO:

11

Let me add one last point, your Honor, because I

I am your, Honor.

12

know you'll give Mr. Boies the courtesy of a couple of extra

13

minutes, very quickly.

14

THE COURT:

How many?

15

Go ahead.

16

MR. MASTRO:

17

That brings me to the last part of the statute

Thank you, your Honor.

18

that no one talked about.

19

comma, "upon an agreement or understanding that he will

20

receive something of value in the event of a certain

21

outcome."

22

Under "Gambling," after the

There is no certain outcome here.

There is no

23

definable event with a -- definite event with a definite

24

outcome.

25
26

And, your Honor, this is the pivotal point.

If

traditional sports fantasy gaming meets this test, that

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2

prong of the statute, daily sports fantasy games do.

They

3

say traditional fantasy sports games aren't betting.

They

4

say they're games that pass statutory muster.

5

daily sports fantasy games.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Thank you, your Honor.

So, too, must

Appreciate the time.

Thank you very much.
(Continued on the next page)

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MR. BOIES:

Your Honor, and just 15 seconds because

3

I want to be sure that the Attorney General has an

4

opportunity to address this.

5

At our Chart 25, we gave them these charts very,

6

very late last night, early this morning.

We point out why

7

People v. Wright, on which they rely, and was the only case

8

they really cited to the Court as supporting their legal

9

position, really does not apply here because it was under a

10

different statute in one that outlawed, not only contests of

11

chance, but contests of skill as well.

12

them a fair opportunity to meet that.

So I want to give

13

THE COURT:

Okay.

14

MS. McGEE:

I want to thank counsel for giving me

15

the opportunity, I will address Wright first.

16

The slide or piece of paper that was presented to

17

us late last night and the Court this morning with respect

18

to Wright, is really a sleight of hand involving the old

19

penal law, that was the law at the time when Wright was

20

decided, and then a couple of snippets from Wright.

21

But what is of importance to the Court with respect

22

to this piece of paper that has been handed up is that they

23

claim that the statute, and it sort of implies that the

24

statute is contained within those, it is a snippet of a

25

sentence, of Penal Law Section 986, which was, of course,

26

replaced by Section 225 of the Penal Law and what I have
mb

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been referring to with the Court today.
And, in a sleight of hand, counsel is trying to

4

suggest that somehow contests of skill, are, you know, not

5

at play here.

6

I just want to point out that this is purely a

7

worthless piece of paper, and I thank counsel for giving me

8

the opportunity to raise that.

9

the full penal law, which I have here before the Court, and

10

It actually doesn't raze out

I am happy, if I may, to hand up.

11

Thank you.

12

And at your leisure, please feel free to take time

13

to read that entire statute, and you could see how misplaced

14

this piece of paper referred to by counsel is.

15

For the rest of my time, I'd like to address

16

statements made by both counsel in the course of their oral

17

arguments today.

18

First, I'd like to address the Defendants attempt

19

to argue that daily fantasy sports is somehow something

20

special or different, new to the world.

21

just a classic form of what is known as prop betting.

22

betting is a bet that is not affected by the final outcome

23

of the game, rather prop bets allow bettors to wager on all

24

sorts of things, such as team statistics and individual

25

player performance.

26

time, and that is exactly what daily fantasy sports bettors

Actually, it is
Prop

They have been around for a very long

mb

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do.

3

With respect to chance, defense counsel in their

4

oral argument and particularly FanDuel admitted that, quote,

5

"The State is right, calibrating skill versus chance is a

6

difficult one," unquote.

7

That is correct.

And, when the legislatures changed the law from the

8

dominant standard to the material standard that was exactly

9

why.

10

It eliminated that difficulty for the Court.
So, the statute requires that material degree of

11

chance, and this is the important part, notwithstanding that

12

skill may be a factor therein.

13

skill.

14

It is notwithstanding the

That is the standard that we are looking at.
You have heard a lot of new tests being bandied

15

about by defense today.

16

it been revealed in any of our case law, we have heard the

17

true contest.

18

purposeful detachment test, the fully realized test -- which

19

I personally hope to attain some day -- the more fun tests,

20

none of these are in the law.

21

the four corners of Penal Law Section 225.

22

Frankly, I never heard of, nor has

We have heard the test.

We have heard the

They're certainly not within

So, 225 is, as I said before, a three-part

23

standard.

24

something of value when a certain outcome occurs.

25
26

First, an agreement that the bettor receive

Second, that that bettor stake something of value
upon a particular outcome.
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And lastly, we have two alternatives, the future

3

contingent event not under his control or influence or

4

whether or not it is a game from material element of chance.

5

With respect to skill, the Defendants attempt to

6

argue that daily fantasy sports is a game of skill.

7

said that the skill is, quote, "their assessment of the

8

value of performance of athletes," unquote.

9
10

That is actually a pretty good definition of
handicapping which has been used by gamblers for a century.

11
12

FanDuel

I'd like to turn the Court's attention to the
Turner case, which is quoted in our papers at some length:

13

Quote, "Games of chance range from those that

14

require no skill, such as a lottery, to those like poker or

15

blackjack which require considerable skills in calculating

16

the probability of drawing cards.

17

are as much games of chance as the former, since the outcome

18

depends to a material degree upon the random distribution of

19

cards.

20

player's favor, but cannot determine the outcome regardless

21

of the degree of skill employed," unquote.

Nonetheless, the latter

22

The skill of the player may increase the odds in the

Next, I ask this Court to turn to Humphrey.

Just

23

to be clear, and we sort of just want this settled, the

24

Humphrey Court cites to a particular New Jersey law, NJSA

25

2A:40-1.

26

someone to recover gambling losses.

That is the New Jersey qui tam statute allowing

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The actual penal statute in New Jersey for illegal

3

gambling is NJSA 2C:37-1.

4

at all.

5

It is not referred to in Humphrey

So, what Humphrey does is let a daily fantasy

6

sports bettor recover losses under New Jersey's qui tam

7

statute.

8

Court, has nothing to do with the facts before the Court, it

9

has nothing to do with the law before the Court.

10
11

It has nothing to do with the case before the

It is

completely irrelevant.
With respect to traditional fantasy sports which

12

was presented as this big behemoth, how is this different,

13

how is what is here today before you different than

14

traditional fantasy sports?

15

Traditional fantasy leagues are typically games

16

among friends or coworkers and are about bragging rights and

17

side wagers.

18

controlled and operated and fronted by the management of

19

that daily or traditionally fantasy sports enterprise.

20

There is no wager that is happening within the four square

21

corners of the event that is happening, whether it is

22

through papers, whether it is through a website, no wager is

23

happening through the website.

The difference is there is no wager being

24

THE COURT:

There is no entry fee?

25

MS. McGEE:

There might be an administrative fee as

26

indicated in the case Humphrey goes to something else, it is
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irrelevant.

3

the whole scheme is gambling.

4

Whether you call it a wager or a entry feehere,

In traditional fantasy leagues traditional

5

operators again don't take a cut of the wages.

6

award of -- there is an award of set prizes rather, and it

7

doesn't, in its complete picture, in its complete picture

8

trigger 225.

9

Here 225 is triggered.

There is no

We make no distinction

10

about whether daily fantasy sports is more or less dependent

11

on skillful decisions than traditional fantasy sports

12

leagues.

13

skilled than that decision, and the Court doesn't have to

14

make those decisions either.

15

I am not here to say this decision seems more

If a site were to offer season-long bets, maybe it

16

would be something different.

17

General's position, traditional fantasy sports is a

18

different animal.

19

take a cut of the bets and offer cash prizes for winners,

20

we, the State, would consider whether it was a gambling

21

operation worthy of an enforcement action.

22

wouldn't, that is not an issue here today.

23

But, in the Attorney

If a site were to offer season-long bets,

Not saying we

What is at issue here today is what the daily

24

fantasy sports operators are doing, and that falls clearly

25

and really simply within the four corners of 225.

26

A little bit about the horse.
mb

The Defendants claim

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2

that the New York Attorney General's office agreed or

3

conceded that an owner could bet on her own horse.

4

actually not what the court found in the case that they are

5

referring to or actually what we said in our papers.

6

That is

The court in that case said that a person could

7

enter his or her horse in a contest that she could influence

8

the outcome of.

9

a game betting on the sports players, and what defense

That is a far cry from here.

This today is

10

counsel is trying to posit this as is, I'd ask the Court to

11

think about a whole set of Russian nesting dolls, one doll

12

within another doll within another doll.

13

So what Defendants are trying to position this as

14

is if you are just simply a self-contained game, you are not

15

actually having any meaningful relationship to the core

16

which is the athletic performances of people on the field.

17

The reason I'm screaming at the TV and throwing at

18

the TV all the time because the players aren't doing what I

19

bet they would do or they're betting something different,

20

that somehow doesn't matter.

21

performance, their daily fantasy skills' betting performance

22

is a complete performance, that it is not actually gambling.

23

In that theory, then someone else could bet a wager against

24

those two people playing a daily fantasy sports contest, and

25

then that wouldn't be gambling, and two more people could

26

place a bet on top of that.

And because that is a complete

It leads to an absurd, absurd
mb

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2

result because they claim to just ignore the central premise

3

of daily fantasy sports, which is that all of this takes

4

place on a field, all of the essential outcome of the game

5

takes place on events that I can't control beyond the

6

television set.

7

suggest it.

8

It is frankly somewhat preposterous to

With respect to what the Defendant is saying isn't

9

their laches or estoppel argument, a few more words.

10

Defendants want an allowance because they have been

11

operating for a period of time.

12

estoppel.

13

actions and with good reason, because every person or entity

14

engaged in a legal or improper activity could use the

15

duration of their criminal enterprise as a defense.

16

cite cases regarding this in our brief.

17

The

This sounds a lot like

Laches and estoppel do not apply to enforcement

And we

The harm to the citizens of New York is increasing

18

with every additional day of the daily fantasy sports'

19

relentless advertising campaigns.

20

site spent over $200 million in advertising.

21

incredible increase over the previous year.

22

network alone, an annual increase over 2,000 percent for

23

DraftKings in this first ten months of 2015.

24

In the last year, this
That is an
And on one

They have attracted tens of thousands of new users

25

in New York to their sites in the last year.

26

to New York citizens, that is, participating in an illegal
mb

So, the harm

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2

and socially damaging gambling activity is more salient now

3

than ever before.

4

sports.

5

That is what has changed in daily fantasy

The facts are not in dispute here.

All you need to

6

know as the Court is how the games are actually played.

7

no one here is disputing how the games are actually played.

8

And

With respect to this reference that counsel has

9

made to the experts and how essential it is to their expert

10

testimony in order to come to any determination, this really

11

is not a highly complicated, statistical fact-based inquiry

12

worthy of an evidentiary hearing.

13

The expert reports submitted by daily fantasy

14

sports operators amount to, quite frankly, a real expensive

15

distraction.

16

relevant legal standard and towards an intractable and

17

unnecessary battle of the experts.

18

It is aimed at leading the Court away from the

The Court need not and should not look to these

19

reports because they don't matter at all under relevant law,

20

namely, whether chance plays a material role in player

21

outcomes.

22

The Defendants cite no cases in which a court even

23

reviewed, let alone relied on expert testimony in deciding

24

whether a contest was a game of chance, or depended on the

25

outcome of the future contingent event.

26

only that certain exceptional player outcomes are highly
mb

The reports show

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2

unlikely to have occurred solely by chance.

3

answer the actual relevant question which is whether chance

4

is a material part of actual player outcomes.

5

show skill, skill at gambling.

6

They do not

Again, they

Even if we set aside for the moment the report's

7

obvious methodological failures, through obfuscation in the

8

papers of the methodological details and the fact that each

9

report bases its conclusions on a subset of the population

10

and not the entire population, one thing is clear from their

11

text, no expert shows that chance is immaterial to player

12

outcomes.

13

inquiry here.

That is because it is material, and that ends the

14

I'd like to just add for the record, we were not

15

provided any of the back-up data on these reports and the

16

data relied on by the experts.

17

are assumed to be part of the record, we actually object to

18

their consideration.

19

So, to the extent that those

Lastly, the core point here is whether you as a

20

Court believe that the daily fantasy sports bettors are

21

involved in a game that is somehow separate from the

22

underlying games.

23

Our view, and I think we have made that pretty

24

clear today, is that is simply implausible.

25

daily fantasy sports exists is a contest separate and apart

26

from actual sports is baseless, and is -- excuse me, that
mb

The notion that

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2

daily fantasy sports exists is a contest separate and apart

3

from actual sports, that is baseless.

4

no winners or losers with -- there can be no winners or

5

losers without the happening of future contingent event,

6

outside influence or control.

7
8

And that there can be

There is no, quote/unquote, "successful roster"
until the relevant athletes compete in actual skill games.

9

Daily fantasy sports can't escape the law by

10

pretending that it is somehow different from every other

11

sports bet that has ever been played within New York State.

12

Thank you.

13

THE COURT:

14
15

Thank you.

I think you still have five

minutes.
I still don't understand what is the difference

16

between why is it that traditional Fantasy Sport would be

17

allowed whereas Daily Fantasy Sport wouldn't?

18

difference; what is the core difference?

19

MS. McGEE:

What is the

Your Honor, one, there is not always an

20

entry fee in traditional Fantasy Sport, and -- there is not

21

always an entry fee in traditional Fantasy Sport.

22

not always a prize in traditional Fantasy Sport.

23

There is

My husband plays a traditional Fantasy Sports game

24

involving soccer leagues.

There is no prize but for

25

bragging rights with his friends.

26

That is a traditional Fantasy Sports game.
mb

There is no entry fee.

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Moreover, if a game that called itself traditional

3

Fantasy Sports actually met the three standards elucidated

4

within 225, it would be gambling.

5

you call yourself something doesn't make it so.

6

You know, simply because

So for the Attorney General and the State, the

7

position is that there is something that is really a truly

8

traditional Fantasy Sports game, no wagers, often no prizes,

9

and certainly nothing that conforms to 225.

10
11

It is a horse

of a totally different color here.
What we have today is a company, two companies that

12

are operating clearly straight black letter law within the

13

confines of 225.

Very different thing.

14

THE COURT:

15

MR. KIERNAN:

Okay.

Thank you.

Three minutes.

Your Honor, I might direct you to

16

Exhibit 4 of our submission, which is the Attorney General's

17

Cease and Desist Letter, the first paragraph of the fourth

18

page of the letter -- second page of the letter, sorry,

19

where they distinguish traditional fantasy sports from daily

20

fantasy sports.

21

to try to reconcile these is to change the definition of

22

traditional fantasy sports.

23

And what the State has just done in order

There in that first paragraph, as in the State's

24

earlier comments, there is an explicit definition of

25

traditional fantasy sports featured side wagers, that is,

26

the commissioners of the league would distribute the prizes
mb

70
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2

to the winner, instead of the internet sponsor distributing

3

the prizes.

4

But there was a distribution of prizes in these

5

side wagers in traditional fantasy sports as identified by

6

the Attorney General.

7

saying that has never been serious, the legality of

8

traditional fantasy sports has never been seriously

9

questioned in New York.

That the Attorney General ends by

That was including that piece.

10

But, your Honor, it is indistinguishable.

11

FanDuel is doing is distributing its prize is illegal, it is

12

indistinguishable from those commissioners distributing

13

their prize from their side wagers, which is explicit what

14

the Attorney General's talking about when saying this

15

traditional Fantasy Sports has been enjoyed and legally

16

played by millions of New Yorkers for years.

17

in position, but the Attorney General should live with the

18

one he has been articulating up to now.

19

Second.

If what

It is a change

Let's get clear on Humphrey as the State

20

suggested.

The statute that Humphrey was constructed says

21

this, it is illegal to engage in, quote, "wagers, bets or

22

stakes made to depend on any race or game or upon any gaming

23

by lot or chance or upon any lot, chance casualty or known

24

or unknown or contingent event."

25

I am reading from page seven of Humphrey.

26

What the Court found was that fantasy sports did
mb

71
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2

not satisfy the criteria of wagers, bets or stakes exactly

3

as I said in my argument, and that is functionally

4

indistinguishable from the language of the New York statute,

5

your Honor.

6

Just two other points.

7

The State, the State threw in the words "socially

8

damaging."

That is an extremely allegation, your Honor, and

9

it is an allegation the State throws around casually in its

10

brief, and it is a pretty serious allegation to the State

11

that sponsors the lotteries and the casinos and the horse

12

racing, to talk how it is socially damaging to play fantasy

13

sports.

14

People play fantasy sports because they are sports

15

fans, your Honor.

"Fan" is a derivative of the word

16

"fanatic."

17

causes people to like to compete on this is not something

18

that is subject to the regulation of the Attorney General

19

or, frankly, your Honor, the courts.

That kind of fanaticism, the love of sports that

20

Finally, your Honor, of course the general manager

21

of a team never steps onto a field, but that doesn't change

22

the fact that the general manager has influence over

23

contests.

24

influences the relevant contest.

25

the contest over who is superior at picking rosters.

26

is an entirely different dynamic from prop bets, which is

The person who is picking the fantasy roster

mb

The relevant contest is
That

72
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2

single bets on a single binary event, this person does this

3

or doesn't do that.

4

have no separate competition.

5

realities that is the foundation of fantasy sports.

Those prop bets have no system.

They don't have the separate

6

Thank you, your Honor.

7

THE COURT:

Five minutes.

8

MR. BOIES:

Thank you, your Honor.

9
10
11

I want to focus

on the seasonal sports issue, which the Court asked the
question about.
And the answer to the Court's question is yes,

12

there are entry fees.

13

Attorney General's office doesn't really deny that.

14

simply say, well, they're not always entry fees.

15

And, yes, there are prizes.

And
They

Well, there are not always entry fees in

16

DraftKings' games either.

17

prizes in seasonal sports.

18

basis for distinguishing between those two.

19

is legal; one they say is illegal.

20

They

But there are entry fees and
They simply have no rational
One, they say

With respect to prop betting and handicapping, all

21

of that is betting on the real world event.

You are winning

22

something if certain things happen in the real world.

23

In the fantasy game, you are betting on what

24

happens in the fantasy world.

25

different fantasy teams, and it is that contest that is the

26

subject of the prize.
mb

You are competing against two

73
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Proceedings

2

And, I suggest that we have to go back to the

3

statute.

4

something of value based on the outcome of a contest, either

5

one of chance or one that you don't have influence over.

6

That contest, the contest for which you get a prize in daily

7

fantasy sports is the fantasy contest, not the real world

8

contest in handicapping, prop bets, all these other sports

9

betting they're talking about.

10

The statute says that gambling is getting

What you get is you get a bet for what happens as a

11

result of one or more real world sporting events.

12

is a completely different situation, and it is a completely

13

different situation where you are competing, not against the

14

house, which is what happens with prop bets and

15

handicapping, but you are competing against other players.

16

And that

What happens in fantasy leagues is you have a

17

number of players each competing to be their own general

18

manager, and that is the competition that is going on.

19

is the competition where chance is not material.

20

That

The Attorney General's office simply keeps

21

repeating things like chance is material.

22

any evidence of that.

23

said by the Attorney General's office this morning that they

24

cited to anything in the record because there isn't anything

25

in the record.

26

They don't have

There is not a single thing that was

They are asking this Court to essentially rubber
mb

74
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2

stamp a preliminary injunction action without any evidence

3

because they say it is so.

4

standard that is required for a preliminary injunction.

5

That doesn't make out the

For a preliminary injunction they have to come in

6

and show the Court facts.

7

hearing, to a trial with evidence before we are shut down in

8

New York.

9

We think we are entitled to a

They say that the statistical evidence is not

10

conclusive.

11

at least there is statistical evidence.

12

doubt that a small fraction of the players win the vast

13

majority of prizes and do so time after time after time.

14

That is inconsistent with a game of chance.

15

particularly inconsistent in a contest in which the

16

participant has no influence over the outcome.

17

Perhaps, it is not conclusive, your Honor, but
There isn't any

And it is

They have said themselves, 1.3 percent of the

18

players get 91 percent of the prizes.

19

a game of chance.

20

participant doesn't have any role or any participation in

21

it.

22

That can't happen in

That can't happen in a contest where the

Your Honor, this is a situation in which everybody

23

in the real world knows that Fantasy Sports are a fantasy

24

competition.

25

is proven time after time after time that it is skill based.

26

It is something that everybody has known has been lawful for

It is a competition that is skill based.

mb

It

75
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eight years.

3

And now they are asking this Court, without a

4

trial, without ever putting them to the proof, without

5

making them ever come forward with a percipient witness,

6

without their ever having to prove that there is any

7

material element of chance because they say so.

8

you want to shut us down in New York after the investments

9

were made and reliance on this pattern of obvious legality

10
11

They say

that has existed for eight years.
We think that is not consistent with the standards

12

for a preliminary injunction.

13

Thank you very much.

14

THE COURT:

15

The Court will reserve decision.

16

MS. McGEE:

Thank you very much.

Your Honor, with respect to the

17

materials passed around this morning, we are assuming that

18

those are not going to be part of the official record.

19

This material would not be part of the record.

20

(Shown.)

21

MS. SANCHEZ:

22

They're essentially a reply brief,

your Honor.

23

THE COURT:

They're a reply brief?

24

MS. McGEE:

It is an another opportunity to reply

25
26

to papers.
THE COURT:

I think I saw in their opp to your
mb

76
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Proceedings
motion.

3

I saw it in their opp to your motion.
MS. SANCHEZ:

These slides, we didn't get them

4

until 1:00 a.m. last night.

5

their opposition.

6

MR. BOIES:

These slides weren't part of

We only got, we got their brief between

7

midnight and 1:00 a.m. the day before.

8

working very late.

9

THE COURT:

Both of us have been

But here is the thing, I saw, when I

10

read the papers, or was it the AG's office's papers that

11

came in a binder with a lot of tabs and --

12

MR. BOIES:

Yes.

13

THE COURT:

-- and some of the same exhibits that

14

they pointed to were included in that binder, or did I see

15

it in the Defendants' papers?

16

MS. SANCHEZ:

So these are -- there are no exhibits

17

here.

18

at 1:00 a.m. last night.

19

think anyone could claim they are evidence, and so we just

20

want to be clear for the record that --

21
22

They're all demonstrative slides they provided to us

THE COURT:

They are not evidence.

I don't

I'm basing my decision on what has

already been submitted.

23

MS. McGEE:

Thank you.

24

MR. BOIES:

And, your Honor, I am perfectly happy

25

to take their characterization of this as a reply brief.

26

The Court gave us the right to file a reply brief in the
mb

77
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2

order that the Court signed.

3

is evidence.

4
5

I am not suggesting that this

This isn't.

MS. McGEE:

We're not suggesting it should be in

the reply papers.

6

MR. BOIES:

This is argument.

7

THE COURT:

This is all argument.

8

You will get my decision.

9
10

It will come very soon.

Look for it in the server.
(Proceedings recessed.)

11
12
--13
14

CERTIFIED TO BE A TRUE
AND CORRECT TRANSCRIPT

15
16
17

MARGARET BAUMANN
OFFICIAL COURT REPORTER

18
19
20
21
22
23
24
25
26

ANNE MARIE SCRIBANO
OFFICIAL COURT REPORTER

People of the State of New York v.
DraftKings, Inc.
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$

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allowing (1)
61:25
allows (1)
6:17
almost (1)
33:12
alone (2)
65:22;66:23
along (2)
45:10;53:23
alter (4)
27:17;28:20;29:19;
37:8
alternative (2)
9:23;36:7
alternatively (1)
16:6
alternatives (1)
61:2
although (2)
26:22;29:5
always (6)
53:9;68:19,21,22;
72:14,15
American (4)
20:24;21:6,11;
34:26
Americans (1)
34:2
among (1)
62:16
amount (2)
12:7;66:14
ample (1)
27:6
analogies (3)
32:20;34:16,17
analogy (1)
16:8
analyses (3)
13:4,8;48:21
analysis (8)
16:7;21:14,14;29:5;
38:25;39:7;48:18;
Margaret Baumann

52:8
analyze (2)
13:21;39:5
animal (1)
63:18
annual (1)
65:22
anonymous (1)
47:23
ante (1)
18:14
anti (1)
52:10
apart (6)
31:26;32:20;33:22;
34:16;67:25;68:2
apparently (1)
25:5
Appeals (3)
29:13;39:14;55:14
applicable (1)
22:6
application (2)
26:16;30:2
applied (1)
29:14
applies (3)
38:16;39:8,9
apply (6)
12:2;13:11;14:14;
15:20;58:9;65:12
applying (2)
35:23;39:19
Appreciate (1)
57:6
approach (1)
25:20
appropriate (2)
52:20,21
aptitude (3)
26:17;27:24;30:2
area (1)
50:23
argue (5)
5:13;6:3;16:2;
59:19;61:6
arguing (2)
31:2,4
argument (11)
5:14,15,24;12:16;
14:14;38:10;41:3;
53:14;60:4;65:9;71:3
arguments (4)
5:6;14:3;38:12;
59:17
arise (1)
42:5
Arizona (3)
20:24;32:12;38:18
armed (1)
13:18
around (4)
45:15;59:25;71:9;

75:17
articulated (1)
29:13
articulating (1)
70:18
aside (1)
67:6
assertion (1)
53:5
assertions (2)
53:13,15
asserts (1)
29:20
assessment (2)
32:16;61:7
assigned (1)
42:2
associated (1)
28:15
Association (1)
20:24
assumed (1)
67:17
assuming (1)
75:17
athlete (1)
10:17
athletes (5)
8:3,8;9:10;61:8;
68:8
athletic (3)
14:8;17:15;64:16
Atlanta (2)
32:12,12
attacking (1)
16:18
attain (1)
60:19
attempt (8)
12:6;15:17,20;16:2;
18:15;29:19;59:18;
61:5
attempted (2)
29:16;47:16
attention (2)
26:24;61:11
Attorney (23)
5:20;16:9;42:21;
44:25;45:22;46:11;
47:11,13;52:15;53:6;
58:3;63:16;64:2;69:6,
16;70:6,6,14,17;
71:18;72:13;73:20,23
attracted (1)
65:24
authorities (1)
29:15
authority (1)
25:25
automatically (1)
55:2
award (2)
63:6,6
(1) $1 - award

People of the State of New York v.
DraftKings, Inc.
awarded (2)
46:17;49:26
away (1)
66:15
awful (1)
35:19

begins (1)
6:10
behalf (1)
6:3
behemoth (1)
62:12
Behind (1)
B
18:21
bell (1)
45:4
back (6)
Belmont (2)
22:8;40:25;41:6;
45:4;55:10
47:23;49:4;73:2
benched (1)
back-up (1)
8:16
67:15
best (3)
bad (2)
11:2;27:13;40:6
28:4;36:24
bet (18)
balance (1)
7:16;9:9;13:19;
53:18
15:19;17:18;21:25;
ball (3)
22:2;35:18;39:12;
10:18;27:11,16
48:8,9;59:22;64:3,19,
bandied (1)
23,26;68:11;73:10
60:14
bets (17)
baseball (1)
16:23;34:17,18,18;
8:25
36:13;44:15;59:23;
based (16)
63:15,18,19;70:21;
8:13;9:24;14:9;
71:2,26;72:2,3;73:8,
17:16;25:16;27:25;
14
28:9;47:23;48:23;
49:6;52:8;53:4;54:15; better (5)
10:23;17:23;24:24,
73:4;74:24,25
25;32:7
baseless (2)
betting (25)
67:26;68:3
17:9,10;18:4,6;
bases (1)
19:17;31:16;32:22;
67:9
35:5;44:26;46:17,19;
basically (1)
52:10;54:9;56:2,3;
31:17
57:3;59:21,22;64:9,
basing (1)
19,21;72:20,21,23;
76:21
73:9
basis (5)
bettor (12)
27:6;38:12;47:21;
7:9,13,26;8:4,19;
55:17;72:18
9:25;11:26;18:2,19;
basket (1)
60:23,25;62:6
45:11
bettors (20)
batted (1)
7:17;8:13,25;9:4;
8:14
10:25,26;11:15;
battle (1)
13:18,21;14:9,10;
66:17
15:10;16:25;17:4,18,
bear (1)
21,22;59:23,26;67:20
41:19
beyond (6)
beauty (2)
17:14,16;19:2;39:2;
21:9;45:14
49:7;65:5
become (2)
big (2)
34:25;35:7
51:5;62:12
bee (5)
binary (2)
16:24;17:2,6;23:6;
34:18;72:2
32:21
binder (4)
bees (8)
43:4;54:7;76:11,14
16:11,12,14,15,19,
bingo (2)
23;17:5;21:6
16:10,18
begin (2)
bit (4)
6:6;42:20
9:12;16:16;17:6;
beginning (2)
63:26
20:9;22:14
Min-U-Script®

November 25, 2015
bizarre (1)
12:15
black (1)
69:12
blackjack (2)
11:3;61:15
blown (1)
26:5
blows (1)
36:24
bluff (1)
18:14
bobble (1)
36:11
Boies (12)
42:18,19;43:7;
53:23;54:2;56:7,12;
58:2;72:8;76:6,12,24
bona (1)
20:19
books (2)
34:3,3
both (9)
11:3;12:11;23:8;
40:9,9;43:19;50:18;
59:16;76:7
box (3)
11:2;53:25;55:2
bragging (2)
62:16;68:25
break (4)
5:12;28:18;40:16,
24
brief (15)
20:15;26:21;27:5;
31:11;44:25;48:7,11;
51:23;65:16;71:10;
75:21,23;76:6,25,26
briefly (1)
14:5
briefs (3)
19:12;29:11;37:12
bring (2)
14:16;55:25
brings (2)
41:18;56:17
brought (1)
25:13
built (1)
37:22
bunch (2)
17:12;33:3
bunt (1)
11:15
burden (1)
6:22
business (3)
48:2;51:14;52:23

C
calculating (1)
61:15
Margaret Baumann

calculations (1)
49:2
calibrating (1)
60:5
calibration (2)
21:20;29:3
call (7)
7:16;26:5;28:4;
36:25;48:24;63:2;
69:5
called (2)
20:11;69:2
calls (1)
21:16
came (2)
37:17;76:11
campaigns (1)
65:19
can (41)
6:18;8:4,9,11;9:10,
13;10:23;12:11,20;
16:3,7;26:7,21;27:10;
28:6,12,16,18;32:7;
33:14,15,15;40:13;
41:24;42:2;44:7,14;
46:7,8;48:8,9,25,26;
52:15;53:8,20,22;
54:12;55:25;68:3,4
capacity (6)
26:16;27:11,18,23;
29:10;32:16
capturing (1)
29:18
car (1)
12:16
card (1)
44:12
Cardinals (1)
32:12
cards (5)
18:16;44:16,16;
61:16,19
carved (1)
37:18
case (37)
5:26;11:15;12:3;
13:16,17;14:26;19:7;
26:20;27:4;30:5;
31:11;37:12;38:9,17,
18,18;41:7;48:4;50:4,
11,15,16,16,17,18,20,
22;53:24;54:10;
55:22;58:7;60:16;
61:12;62:7,26;64:4,6
cases (7)
15:16;29:21;35:11;
39:13;50:22;65:16;
66:22
cash (2)
9:3;63:19
casinos (1)
71:11
casually (1)

71:9
casualty (1)
70:23
category (1)
20:11
cause (3)
25:23;28:13,16
causes (1)
71:17
Cease (1)
69:17
centillion (1)
48:24
central (6)
31:20,21,23;42:21;
48:4;65:2
century (1)
61:10
certain (6)
7:10;56:20,22;
60:24;66:26;72:22
certainly (3)
50:7;60:20;69:9
certainty (1)
12:7
challenge (1)
25:15
chance (77)
9:18,25,26;10:4,8,9,
11,14,20;11:3,5,7,17,
17,19,22,25;12:14,18,
21;13:5,14,25;15:13;
16:6;18:8,12,16,17,
18;19:3;21:21;22:12,
18,26;23:10,24;25:21,
24;26:9,22,26;38:26;
39:5,23,26;40:2;44:4,
8,17;46:8,9;47:15,20;
48:22;49:7;50:12;
58:11;60:3,5,11;61:4,
13,17;66:20,24;67:2,
3,11;70:23,23;73:5,
19,21;74:14,19;75:7
change (15)
12:5;13:4;15:26;
25:24;26:5,7;28:7;
36:22;42:6;44:16;
45:9;51:26;69:21;
70:16;71:21
changed (3)
11:20;60:7;66:3
character (3)
23:16;29:25,26
characteristic (2)
26:8;32:17
characteristics (3)
24:26;32:3,19
characterization (2)
25:6;76:25
charged (1)
8:24
Chart (1)
58:5
(2) awarded - Chart

People of the State of New York v.
DraftKings, Inc.
charts (6)
43:4;47:18,18;
51:17,24;58:5
check (1)
44:14
Chess (2)
16:10;32:22
choices (1)
42:13
chosen (1)
42:12
cigar (1)
13:23
cigars (2)
11:16;13:20
Circuit (2)
37:11;38:10
circumstances (1)
47:24
cite (5)
26:20;29:15;53:14;
65:16;66:22
cited (6)
26:20;31:11;37:12;
50:18;58:8;73:24
cites (2)
25:25;61:24
citing (2)
38:7,8
citizens (2)
65:17,26
claim (6)
15:5;43:18;58:23;
63:26;65:2;76:19
claimants (1)
20:5
classic (1)
59:21
clear (14)
10:6;11:8;14:2;
15:17;19:8,18;27:9;
51:19;55:19;61:23;
67:10,24;70:19;76:20
clearly (5)
6:22;28:22;47:7;
63:24;69:12
clicks (1)
17:12
clock (1)
6:8
close (1)
28:11
closed (1)
18:21
closer (1)
27:12
coach (1)
25:16
coaches (1)
32:8
code (1)
7:19
codify (1)
Min-U-Script®

29:16
colleague (2)
50:21;51:7
color (1)
69:10
combinations (1)
9:4
combine (1)
27:14
comma (1)
56:19
comments (4)
22:5;23:14;29:23;
69:24
commissioners (2)
69:26;70:12
common (4)
20:9,10;24:15;
29:18
companies (2)
52:7;69:11
company (2)
52:22;69:11
comparisons (1)
18:23
compelling (1)
25:13
compete (4)
35:8;55:4;68:8;
71:17
competed (1)
45:21
competing (8)
34:23;49:18,21,22;
72:24;73:13,15,17
competition (11)
17:15;34:24;49:12,
17,21,24;72:4;73:18,
19;74:24,24
competitions (5)
16:19;21:8;34:9;
41:9,10
competitive (1)
24:11
competitor (3)
20:16;27:11;33:13
competitors (5)
17:5;24:5,9;34:10;
37:2
complete (7)
34:7;44:11,19;63:7,
7;64:20,22
completely (5)
15:14;19:11;62:10;
73:12,12
complex (1)
46:25
complicated (1)
66:11
component (1)
21:11
comprehend (1)
48:26

November 25, 2015
comprised (1)
17:4
computer (2)
17:14,16
concede (3)
12:26;43:16;44:25
conceded (1)
64:3
concedes (1)
51:2
concentration (4)
23:14,17,20,25
concern (1)
12:23
conclude (1)
27:7
concludes (1)
39:17
conclusions (2)
13:2;67:9
conclusive (2)
74:10,10
conclusory (1)
47:22
conduct (1)
14:3
conducting (1)
24:3
confines (1)
69:13
conflate (1)
15:17
conforms (1)
69:9
Congress (2)
37:17;38:9
conjure (2)
14:3;48:26
Connecticut (1)
12:13
connection (1)
46:3
consensus (1)
50:24
consider (1)
63:20
considerable (1)
61:15
consideration (1)
67:18
consistent (7)
23:16;24:6,20;25:2;
28:24,25;75:11
consistently (4)
24:9,10,14;28:26
constitute (2)
14:11;40:11
Constitution (2)
7:4;39:15
constructed (1)
70:20
constructing (2)
41:19;49:23
Margaret Baumann

contained (1)
58:24
content (1)
26:3
contention (1)
31:22
contest (112)
8:10;9:25,26;10:2;
12:22;13:25;16:6;
17:9;20:11;21:16,16,
19,22;22:6,12,17;
23:3,7,10;24:21;25:3,
5,19,19,23;26:3,10,
18;27:7,7,17;28:2,7,8,
17;29:2,26,26;30:4,4,
5;31:24,26,26;32:18,
19;33:8,19;34:8;37:4,
9;38:20,22;39:2,3,7,
16,23,26;40:2,2,4,5;
41:11,13,15,16,17,23;
42:8,9,11,12,14;
44:22;45:21,26;46:7,
8,10,12,15,16,19,21,
21;48:6;49:6,8,10;
50:12,25;54:13;55:4,
15;60:17;64:7,24;
66:24;67:25;68:2;
71:24,24,25;72:25;
73:4,6,6,7,8;74:15,19
contestant (5)
10:5;26:6;32:6;
40:5,7
contestants (6)
11:23;17:2;25:8;
32:6;41:8;45:15
contested (1)
23:13
contests (49)
9:7;10:8,21,24;
11:19;17:12;21:2,7,7,
8,9,12,17,24;22:4,23,
23,23,26;23:11,11,15,
19,19,21,22;24:6,24;
25:21;26:8,9,9,11;
28:13;33:10;36:18,
26;37:16,21,22,24;
38:11,23;43:17;
45:14;58:10,11;59:4;
71:23
context (2)
34:6,14
contingencies (2)
42:4,6
contingency (1)
31:7
contingent (19)
7:21,25;8:6;9:24;
14:11;15:14;16:6,25;
18:4,26;22:13;25:23;
39:24;41:21;43:9;
61:3;66:25;68:5;
70:24
continue (3)

29:12;40:13;41:3
Continued (3)
17:25;30:8;57:8
continues (1)
50:4
contrary (1)
15:7
contributed (1)
52:11
control (39)
7:22,26;8:4,18;
16:9;18:5,13,20;19:2;
22:14;28:3,5;39:3,25;
40:4,7;41:22;42:23;
43:12;44:8,11,19,21;
45:5,8,10,17,20;
46:14,22,23;47:8,20;
49:7,16;50:13;61:3;
65:5;68:6
controlled (2)
14:10;62:18
controlling (1)
38:26
conversely (1)
14:9
conveyance (1)
20:13
conviction (1)
8:24
core (3)
64:15;67:19;68:18
corners (3)
60:21;62:21;63:25
correctly (1)
31:22
counsel (9)
14:23;58:14;59:3,7,
14,16;60:3;64:10;
66:8
county (1)
21:8
couple (3)
32:25;56:12;58:20
course (8)
33:11;38:7;41:19;
42:12;44:11;58:25;
59:16;71:20
COURT (122)
5:2,6,8;6:6,8,10,13,
24;8:23;9:6;10:7,22;
11:10;12:2,6,18,23;
13:11,17,24;14:19,24;
15:2,4,9;16:4,12,14;
19:15,18,24;20:23,23,
24;21:18,18;26:13;
27:6,6,15;29:8,13;
31:2,10,15;33:26,26;
36:6,7,12,16;37:10,
13,13,25;38:13;
39:14;40:13,16,20,23;
41:2;42:17,19,25;
43:6;45:25;47:2,3,5;
50:15,16,19,19,20;
(3) charts - COURT

People of the State of New York v.
DraftKings, Inc.
data (2)
67:15,16
day (8)
8:25;10:19;19:8;
53:2;55:21;60:19;
65:18;76:7
dead (1)
55:17
deals (1)
15:9
dealt (3)
18:16;44:13,17
dean (1)
48:2
decided (2)
15:4;58:20
deciding (1)
66:23
decision (8)
14:22;16:7;26:22;
27:4;63:12,13;75:15;
76:21
decisions (3)
53:4;63:11,14
declarations (1)
53:10
declared (1)
18:7
defendant (4)
13:16;19:26;20:4;
65:8
defendants (26)
5:26;6:14;9:17;
11:11,14;12:25;13:9,
12;14:3,13,19,21;
15:3,16;16:8;17:19;
18:15;19:8,16;20:6;
59:18;61:5;63:26;
64:13;65:10;66:22
defendants' (4)
15:6;17:6,12;76:15
defense (7)
12:17;42:4,22;60:3,
15;64:9;65:15
definable (1)
D
56:23
defined (5)
7:18;9:26;12:15,19;
daily (57)
55:26
8:2,3,9,10;9:7,18;
10:7,9,12,15,21;11:6, definite (2)
56:23,23
7,8;13:13;16:17;17:9,
definition (9)
20;18:17,19;19:17;
7:8;15:23;23:12;
42:23;43:8,15,20,24,
26:2;35:18;38:23;
25;44:3,9;45:13;
61:9;69:21,24
48:12;49:11;52:4;
54:4,9;57:2,5;59:19, defy (1)
27:20
26;61:6;62:5,19;
degree (10)
63:10,23;64:21,24;
10:3,10;11:22;
65:3,18;66:3,13;
22:17;23:19;24:12;
67:20,25;68:2,9,17;
33:25;60:10;61:18,21
69:19;73:6
demonstrate (2)
damaging (3)
6:18;24:23
66:2;71:8,12
51:8,9;53:2,11,19,22;
55:14;56:9,14;58:8,
13,17,21;59:2,9;60:9;
61:22,24;62:8,8,9,24;
63:13;64:4,6,10;66:6,
15,18,22;67:20;
68:13;69:14;70:26;
72:7,9;73:26;74:6;
75:3,14,15,23,26;
76:9,13,21,26
courtesy (1)
56:12
courts (10)
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November 25, 2015
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Margaret Baumann

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E
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(4) courtesy - easy

People of the State of New York v.
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Min-U-Script®

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November 25, 2015
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Margaret Baumann

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F
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(5) economics - fans

People of the State of New York v.
DraftKings, Inc.
71:15
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31:23;32:4,5,5,6,18,
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40:4,10;41:8,12,16,
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43:8,10,15,17,21,23,
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56:26;57:2,3,5;59:19,
26;61:6;62:5,11,14,
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November 25, 2015
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Margaret Baumann

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G
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33:23;35:16,17,18,23;
40:11;42:15;43:2,18,
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49:5;50:26;51:4;
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23:16;25:9,13;26:22,
26;28:8;31:6;32:13,
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43:12,14;44:12;47:8;
54:8;59:23;61:4,6;
64:9,14;65:4;66:24;
67:21;68:23,26;69:2,
8;70:22;72:23;74:14,
19
games (37)
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8;18:11,26;19:3;
32:25;33:5,12;34:7;
38:2;46:12,26;54:3,5,
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Good (8)
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(6) fantastically - guessed

People of the State of New York v.
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11:15
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H
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Holiday (1)
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Honor (59)
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harm (5)
26;54:6,10,18,20,26;
6:19;19:6,9;65:17,
55:16,16;56:6,10,11,
25
16,25;57:6;58:2;
Hawks (1)
68:19;69:15;70:10;
32:12
71:5,8,15,19,20;72:6,
headed (1)
8;74:10,22;75:16,22;
36:11
76:24
head-to-head (1)
hope (1)
23:22
60:19
hear (5)
horse (15)
5:23;19:25;47:2;
44:26;45:2,3,6,23;
48:15;50:5
48:9;51:3;55:10,11,
heard (9)
12;63:26;64:3,7;69:9;
5:18;20:26;22:25;
71:11
50:15;60:14,15,16,17,
Hosoi (1)
17
24:3
hearing (2)
Hosoi's (1)
66:12;74:7
29:5
heart (1)
hour (3)
41:7
5:8,9,10
held (1)
hours (1)
8:9
16:26
herring (1)
house (1)
17:7
73:14
High (1)
Humphrey (27)
17:21
14:22;15:7,16;
higher (1)
20:22,23;22:16,16;
29:7
Min-U-Script®

November 25, 2015
increasing (1)
65:17
incredible (1)
65:21
incremental (1)
34:21
Indeed (2)
7:18;43:22
independent (2)
40:10;50:10
indicate (3)
I
47:18,26;48:22
indicated (1)
identical (1)
62:26
36:14
indicates (1)
identification (1)
34:10
47:21
indicative (1)
identified (6)
25:2
21:19;26:4;31:22;
indifferent (1)
37:24;38:24;70:5
33:12
identifies (1)
indirect (1)
34:16
51:2
identify (1)
indistinguishable (4)
32:9
33:24;70:10,12;
identifying (1)
71:4
24:7
individual (5)
ignore (1)
28:7,19;30:6;33:5;
65:2
59:24
illegal (19)
inexperienced (1)
6:15;7:2,3;9:17,26;
28:16
11:9;13:7,25;16:24;
19:9,14;54:18;55:25, influence (26)
7:21,26;8:20;12:21;
26;62:2;65:26;70:11,
16:21;18:5,13,20;
21;72:19
19:2;23:6;36:20;40:7,
immaterial (1)
8;41:10,17;42:10;
67:11
46:9;47:8,20;48:5;
implausible (1)
61:3;64:7;68:6;71:22;
67:24
73:5;74:16
implies (1)
influenced (1)
58:23
28:6
importance (1)
influences (4)
58:21
41:20;42:7,8;71:24
important (3)
influencing (2)
12:4;45:13;60:11
36:26;37:3
impossible (1)
informed (1)
12:6
13:22
improper (1)
inherent (2)
65:14
11:6;13:14
improvement (1)
injunction (18)
24:22
5:22;6:14;14:21;
improves (1)
19:15;20:6,7;47:13;
30:3
50:9;51:11,16,25;
included (3)
52:20,21;53:9;74:2,4,
18:22;36:13;76:14
5;75:12
including (7)
7:4,19;21:18;29:18; injunctions (1)
51:18
35:17;39:13;70:9
injury (1)
incompatible (1)
10:17
26:2
inquiry (4)
inconsistent (2)
10:6;16:4;66:11;
74:14,15
67:13
increase (7)
instance (2)
26:17;27:11,18,24;
28:19;30:6
61:19;65:21,22
35:13,14,22,26;36:16;
37:10;38:10,17;39:4,
5;45:25;55:18;61:22,
24;62:3,5,26;70:19,
20,25
hundred (4)
55:4,5,8,14
husband (1)
68:23

Margaret Baumann

instead (1)
70:2
intensely (1)
48:16
interested (1)
33:18
Interesting (1)
50:16
internet (2)
21:13;70:2
interpretation (2)
15:18,25
interpreting (1)
15:7
into (4)
21:14;27:13;38:22;
46:26
intractable (1)
66:16
intuitively (1)
27:9
investing (2)
16:10,18
investments (2)
52:8;75:8
investors (1)
18:22
invoke (1)
52:14
involved (9)
9:25;12:8;13:7,24;
38:21;47:6,15,15;
67:21
involves (1)
20:13
involving (2)
58:18;68:24
iPhone (1)
17:13
irrelevant (4)
15:15;18:3;62:10;
63:2
irreparable (2)
6:19;19:6
issue (12)
6:24;16:17;31:23;
47:19;48:4;52:16,16,
18;53:9;63:22,23;
72:9

J
Jennings (1)
47:3
Jersey (21)
14:26;15:8,9,19;
20:23;22:19,21;
35:16,17,18,23;39:12;
50:20;55:20,24,25;
56:2,4;61:24,25;62:2
Jersey's (2)
15:12;62:6
jockey (1)
(7) guessing - jockey

People of the State of New York v.
DraftKings, Inc.
45:7
John (1)
20:4
Judge (4)
39:21;40:12,22;
41:12
judges (5)
38:9,10;45:17,18,
19
judges' (1)
45:19
judgment (1)
50:5
jurisdictions (1)
19:20
justice (1)
35:6
justify (1)
50:8

late (3)
58:6,17;76:8
later (2)
18:18;40:14
latter (1)
61:16
laughable (1)
17:6
Lavin (7)
11:14,20;12:2;
13:12,16;39:13;50:18
Law (47)
6:13;7:7;9:19;10:2;
11:8,13,20;12:15;
13:10,14;14:12,15,17;
15:17;18:2,12;19:6;
22:21;29:16,18,18;
36:4,8;38:6,8;51:19;
53:8;55:3,5,8,22;56:4,
5;58:19,19,25,26;
K
59:9;60:7,16,20,21;
61:24;62:9;66:19;
68:9;69:12
Kathleen (1)
lawful (5)
6:5
42:26;43:18,20;
keeps (1)
52:12;74:26
73:20
lawfully (2)
KIERNAN (8)
52:22,23
20:3,4;31:8,19;
40:16,21;41:4;69:15 Lawrence (2)
55:7,7
kind (6)
laws (4)
21:20;24:20;34:25;
27:20;28:12,15;
52:9;54:15;71:16
30:7
kinds (5)
20:26;21:8;28:3,13; lead (1)
30:6
34:18
leading (1)
knowledge (2)
66:15
26:24;53:11
leads (1)
known (3)
64:26
59:21;70:23;74:26
league (2)
knows (4)
34:4;69:26
33:26,26;42:25;
leagues (7)
74:23
37:15;52:9;62:15;
63:4,12;68:24;73:16
L
least (1)
74:11
laches (3)
leave (3)
14:14;65:9,12
5:14,15;53:16
lacks (1)
left (1)
15:2
54:21
language (11)
legal (13)
35:26;36:13,15;
14:2;15:12;19:20;
39:20;43:9,10;46:4,5;
36:5,8;37:13;54:4,4;
49:4,5;71:4
55:13;58:8;65:14;
large (2)
66:16;72:19
52:7,8
legality (3)
last (13)
52:8;70:7;75:9
5:17;7:20;14:20,23;
55:10;56:11,17;58:6, legally (1)
70:15
17;65:19,25;76:4,18
legislative (1)
lastly (2)
12:5
61:2;67:19
legislators (1)
latches (2)
38:8
52:14,17
Min-U-Script®

November 25, 2015
legislature (1)
11:20
legislatures (1)
60:7
leisure (1)
59:12
length (2)
29:6;61:12
less (2)
43:26;63:10
letter (4)
69:12,17,18,18
level (2)
24:18;29:9
life (1)
21:13
light (1)
14:2
likelihood (6)
6:18;9:14;48:22;
49:2;50:2,7
likely (2)
6:25;17:3
limitations (1)
14:16
limitless (1)
10:16
line (2)
41:24,26
line-up (1)
18:19
lineups (1)
14:10
list (3)
10:14;20:26;43:23
listen (1)
53:3
listened (1)
38:10
literally (1)
18:22
little (2)
5:5;63:26
live (2)
53:10;70:17
logically (1)
28:25
long (4)
12:4;14:15;20:26;
59:25
longer (2)
24:24,24
longitudinal (1)
24:4
long-standing (1)
52:19
look (10)
6:8;29:24;35:11;
38:17,18,18;43:22,25;
54:6;66:18
looked (2)
7:7;55:11
looking (3)
Margaret Baumann

46:24;48:17;60:13
looks (2)
19:4;41:14
lose (3)
8:13;33:13;55:2
loser (1)
8:9
losers (2)
68:4,5
loses (2)
10:15,20
losses (3)
15:11;61:26;62:6
lot (7)
35:19;48:15;60:14;
65:11;70:23,23;76:11
lotteries (1)
71:11
lottery (1)
61:14
love (1)
71:16
luck (6)
12:7;26:25;27:15;
28:9,26;29:4
lucky (1)
10:17
lunch (5)
5:12;40:14,18,24,
26

marionettiers (1)
37:6
massive (1)
23:20
Mastro (5)
51:7;53:17,20;
56:10,16
material (20)
10:3,10;11:4,5,7,
22;13:5;19:3;29:22;
60:8,10;61:4,18;
66:20;67:4,12;73:19,
21;75:7,19
materials (1)
75:17
mathematics (1)
12:20
matter (8)
7:16;13:6;30:5;
36:4,7;44:8;64:20;
66:19
matters (2)
5:19;41:14
may (7)
17:22;36:23;40:12;
42:19;59:10;60:12;
61:19
maybe (2)
20:8;63:15
McGEE (13)
6:4,5,7,9,11;16:13,
15;58:14;62:25;
M
68:19;75:16,24;76:23
mean (2)
magnitude (1)
29:24;45:21
34:20
meaning (3)
main (1)
22:24;41:11,21
6:24
meaningful (1)
majority (3)
64:15
6:23;17:20;74:13
means (4)
makes (11)
15:25;17:23;39:20;
25:26;29:3;32:10;
54:11
33:22,22;35:2,8;
measure (2)
36:19;41:18;42:14;
12:20;28:8
54:18
measured (1)
making (2)
27:25
18:3;75:5
meet (1)
man (1)
58:12
8:24
meets (1)
management (1)
56:26
62:18
mere (3)
manager (5)
23:4;31:24;36:8
25:15;54:16;71:20,
merits (6)
22;73:18
6:19,25;9:15;50:3,
managers (1)
8;52:25
32:8
met (2)
many (12)
6:22;69:3
8:13,15,20,20;11:4;
methodological (2)
17:22;20:22;21:17,
67:7,8
17;26:11;47:25;56:14
middle (1)
marathons (2)
24:18
16:18;21:9
middling (1)
marionettier (1)
24:19
40:8
(8) John - middling

People of the State of New York v.
DraftKings, Inc.
midnight (1)
76:7
might (2)
62:25;69:15
million (6)
7:11;25:13;28:17;
34:2;42:4;65:20
millions (2)
16:22;70:16
minority (1)
17:21
minute (3)
22:16;38:15;54:24
minutes (13)
5:16;19:24;40:17,
20,21;41:5,6;51:6;
53:17;56:13;68:14;
69:14;72:7
Misc (1)
26:21
misplaced (1)
59:13
missed (1)
10:18
MIT (2)
24:3;49:15
moment (2)
13:26;67:6
Monday (1)
14:23
money (6)
7:18,19;15:25;
17:18;20:14;54:13
monitored (1)
35:9
month (2)
11:16;13:20
months (1)
65:23
more (29)
5:5;11:2;12:26;
17:22;18:9;19:11;
23:18,25,26;27:11;
28:18;29:22;32:10;
34:20;43:8,26;45:10,
13,17,20;47:7;54:8;
60:19;63:10,12;
64:25;65:9;66:2;
73:11
Moreover (2)
15:6;69:2
morning (4)
58:6,17;73:23;
75:17
most (4)
5:16;9:4;24:17,18
motion (5)
20:7;50:5;51:11;
76:2,2
motions (5)
5:17,18,21,24;
51:10
mouse (1)
Min-U-Script®

November 25, 2015

17:13
movers (1)
37:6
moving (1)
5:22
much (17)
11:14;13:6,16;
17:19;21:21,21;29:3,
7;34:24;40:19;47:6,
15,15;57:7;61:17;
75:13,14
multi (1)
24:4
multiple (1)
34:17
multi-year (1)
24:3
must (7)
10:7;14:21;16:5;
28:24,24;29:24;57:4
muster (1)
57:4
myself (1)
32:11

N
namely (1)
66:20
nature (4)
25:19;28:21;32:5;
37:15
NCAA (1)
37:12
necessary (1)
21:20
need (7)
9:16;11:10;12:23;
14:24;22:11;66:5,18
neither (1)
47:18
nesting (1)
64:11
network (1)
65:22
Nevada (6)
27:3,5,14;38:18;
50:16,19
Nevertheless (2)
24:13;27:23
New (69)
6:16;7:3;11:8,19;
14:26;15:7,9,12,17,
19,20,22,23;16:4;
18:8,12;19:9,14,17;
20:23,23;21:25;
22:18,20;29:13;
35:16,17,18,20,23;
38:6,8;39:9,12,13,15;
46:11;50:17,20;
51:13,14,15;52:4;
55:3,5,14,20,23,25;
56:2,4,5;59:20;60:14;

61:24,25;62:2,6;64:2;
65:17,24,25,26;68:11;
70:9,16;71:4;74:8;
75:8
Next (5)
14:13;16:2;30:8;
57:8;61:22
night (5)
32:13;58:6,17;76:4,
18
NJSA (2)
61:24;62:3
none (1)
60:20
Nonetheless (1)
61:16
non-golfer (1)
27:10
nor (1)
60:15
norm (1)
30:7
note (1)
23:20
notice (1)
53:14
notion (1)
67:24
notoriously (1)
52:9
notwithstanding (4)
10:4;11:23;60:11,
12
nub (2)
31:20,21
number (6)
11:16;13:20;33:7;
48:10;53:13;73:17
numerous (1)
29:21

O
obfuscation (1)
67:7
object (1)
67:17
observers (3)
23:4,6;31:24
obvious (3)
10:25;67:7;75:9
obviously (3)
15:2;16:21;33:6
occur (1)
7:11
occurred (2)
26:19;67:2
occurrences (2)
10:14,20
occurs (3)
23:15,20;60:24
o'clock (2)
19:25;40:25
Margaret Baumann

odds (2)
17:24;61:19
off (1)
56:8
offense (1)
42:4
offer (5)
17:17;19:9;63:15,
18,19
offering (3)
19:13,17;36:6
offers (1)
32:21
office (6)
53:6;54:3;64:2;
72:13;73:20,23
office's (1)
76:10
official (1)
75:18
often (3)
17:22;27:12;69:8
old (1)
58:18
once (10)
18:19;21:19;38:19;
43:12;44:20;45:4,5,7,
8,15
one (46)
5:8,9,10;7:9;8:11,
25;13:26;14:7;16:18,
20;19:4;21:12;26:5,
23;27:16,17;28:8,20;
29:4,26;37:25;41:15;
44:23;46:24,26;47:4,
5;48:24;51:11;52:26;
53:26;56:11,18;
58:10;60:6;64:11;
65:21;66:7;67:10;
68:19;70:18;72:18,
19;73:5,5,11
ones (2)
21:18;54:3
only (18)
5:21;10:6;16:7,17;
21:4;23:20;24:10;
26:12;46:13;47:26;
50:11;53:7,16;55:20;
58:7,10;66:26;76:6
onto (3)
33:8,9;71:21
openly (1)
52:23
opens (2)
45:5,7
operate (1)
19:20
operated (2)
52:23;62:18
operating (9)
6:15,26;9:17;18:25;
19:5;29:8;52:22;
65:11;69:12

operation (1)
63:21
operations (1)
18:24
operators (4)
13:13;63:5,24;
66:14
opined (1)
12:17
opines (3)
15:11,13,14
opinions (2)
47:22,22
opp (2)
75:26;76:2
opportunity (6)
27:13;58:4,12,15;
59:8;75:24
opposed (1)
54:17
opposing (1)
5:21
opposition (1)
76:5
oral (2)
59:16;60:4
order (5)
5:5;18:17;51:25;
66:10;69:20
orders (2)
14:20;34:20
Ordinarily (1)
51:23
organism (1)
35:6
others (8)
11:2;12:26;17:9,10;
18:3,10;28:17;39:13
otherwise (1)
44:12
out (23)
7:25;8:18;10:19;
16:8;19:11;28:16;
29:5;35:12;37:17,19;
41:24,26;45:10;
51:23;53:24;54:21;
55:2,20;56:9;58:6;
59:6,8;74:3
outcome (53)
7:10,14,20;8:5;
9:24;10:3;11:21;
12:21;16:20;18:13,
20;19:4;26:8;27:25,
26;33:17,17,19;36:21,
26;37:3,3,4,7;39:3,23;
40:6;41:10,14,17,20;
42:8,11;46:7,7,8;
48:5;49:6;50:12;
54:26;56:21,22,24;
59:22;60:24,26;
61:17,20;64:8;65:4;
66:25;73:4;74:16
Outcomes (10)
(9) midnight - Outcomes

People of the State of New York v.
DraftKings, Inc.
10:12;16:23;32:25;
33:4,4,11;66:21,26;
67:4,12
outlawed (1)
58:10
outperform (3)
24:10,14;25:11
outside (6)
28:3,5;39:3;42:23;
51:13;68:6
over (40)
12:21;16:26;18:13,
20;24:4,22;26:18;
28:12,17;34:19,26;
35:8,8,9,9;39:24;40:3,
5,6,6;44:11,19;45:5,
18,20;46:9,13;49:12,
13;55:3,5,7,14;65:20,
21,22;71:22,25;73:5;
74:16
overcome (1)
26:26
overwhelming (1)
47:10
overwhelmingly (4)
19:10;24:9,17,23
own (12)
31:26;36:18;38:11;
41:9,13;44:18,26;
45:3,23;49:23;64:3;
73:17
owner (8)
45:2,6;54:16;55:10,
11,11,12;64:3
owner's (1)
45:5

P
page (9)
17:25;20:15,19;
30:8;44:25;57:8;
69:18,18;70:25
pageant (1)
45:14
pages (1)
54:6
paid (4)
31:12;41:15;46:16;
49:26
paper (4)
58:16,22;59:7,14
papers (13)
5:20;17:19;24:2;
25:21;29:23;61:12;
62:22;64:5;67:8;
75:25;76:10,10,15
paragraph (2)
69:17,23
parlay (1)
34:18
part (11)
21:5;38:25;39:16,
Min-U-Script®

22;56:17;60:11;67:4,
17;75:18,19;76:4
participant (6)
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participants (16)
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34:9;36:19;37:9;41:8,
9,12;42:24;48:6,8,9;
49:17;50:13
participant's (3)
22:14;36:2,20
participate (4)
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participating (6)
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participation (3)
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particular (8)
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particularly (4)
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parties (2)
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pass (2)
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passed (1)
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past (1)
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pattern (1)
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pay (2)
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paying (8)
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44:26;45:3,23,25;
50:24
payment (4)
20:13;21:24;38:20;
50:14
payouts (1)
9:3
Penal (11)
7:7,18;9:19;10:2;
29:16;58:19,25,26;
59:9;60:21;62:2
People (22)
8:23;11:14;24:23;
25:12,18;33:7;34:2;
35:8;44:6;47:3,25;
48:13;49:18;53:11;
55:6,7;58:7;64:16,24,
25;71:14,17
percent (4)
23:24;65:22;74:17,
18
percipient (1)

November 25, 2015
75:5
perfectly (5)
54:4,4,16;55:13;
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perform (4)
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performance (14)
8:2,6;13:19;24:5;
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38:3;59:25;61:8;
64:21,21,22
performances (2)
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performed (1)
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perhaps (2)
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period (2)
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person (10)
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15;48:2;55:25;64:6;
65:13;71:23;72:2
personally (1)
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pervades (1)
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phrase (1)
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pick (8)
9:9;25:18;31:4;
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picked (3)
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picking (5)
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71:23,25
picks (1)
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picture (2)
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piece (6)
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pieces (4)
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pitch (1)
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pitting (1)
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pivotal (3)
14:23;54:10;56:25
pivotally (1)
37:5
place (9)
9:9;21:12;32:2;
41:25,25;52:14;
64:26;65:4,5
Margaret Baumann

placed (1)
16:23
Plaintiffs (1)
5:18
play (10)
9:8;10:23;12:11;
28:15;31:6;42:2;
44:13;59:5;71:12,14
played (10)
10:8;18:14;31:24;
34:2;48:14;54:12;
66:6,7;68:11;70:16
player (20)
8:20;18:12;26:25;
28:16;32:13;33:18,
19;42:2,7,10;44:3,9;
46:14,16;59:25;
61:19;66:20,26;67:4,
11
players (50)
8:7,16;12:25;16:19;
18:9;23:18,26;24:13,
17,18,18,19,19;25:10,
11,16,17,18;27:22;
28:4,10;31:5;32:9,10,
15,17;34:3,22;36:3,
23,25;37:26;41:12;
42:3;44:4,10;46:22;
47:4,5,9;48:4,13;
49:22,23;64:9,18;
73:15,17;74:12,18
player's (3)
19:2;38:2;61:20
playing (3)
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8:21;66:20;68:23
please (2)
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point (11)
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pointed (1)
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points (5)
8:13;37:25;40:12;
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poker (10)
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29:8;44:12,13;61:14
pool (3)
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poor (2)
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population (2)
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position (7)
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63:17;64:13;69:7;
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preliminary (18)
5:22;6:13;14:18,21;
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51:11,16,18,25;52:20,
21;53:9;74:2,4,5;
75:12
premise (1)
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preposterous (1)
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30:4
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65:21
previously (1)
5:21
principal (1)
12:19
principally (1)

(10) outlawed - principally

People of the State of New York v.
DraftKings, Inc.
26:24
private (1)
55:25
prize (24)
16:3,20;20:14;
21:15;36:10;45:2;
46:17,18,20;49:9,10,
11,25;50:14,25;51:5;
55:5,15;68:22,24;
70:11,13;72:26;73:6
prizes (20)
7:11;20:18;21:2;
35:10;36:11,12;38:3,
21;41:15;43:17;63:6,
19;69:8,26;70:3,4;
72:12,17;74:13,18
probabilities (3)
26:14;28:15;30:7
probability (6)
26:17;27:18,21,24;
28:12;61:16
problem (1)
46:15
proceed (1)
28:24
Proceedings (72)
5:1;6:1;7:1;8:1;9:1;
10:1;11:1;12:1;13:1;
14:1;15:1;16:1;17:1;
18:1;19:1;20:1;21:1;
22:1;23:1;24:1;25:1;
26:1;27:1;28:1;29:1;
30:1;31:1;32:1;33:1;
34:1;35:1;36:1;37:1;
38:1;39:1;40:1;41:1;
42:1;43:1;44:1;45:1;
46:1;47:1;48:1;49:1;
50:1;51:1;52:1;53:1;
54:1;55:1;56:1;57:1;
58:1;59:1;60:1;61:1;
62:1;63:1;64:1;65:1;
66:1;67:1;68:1;69:1;
70:1;71:1;72:1;73:1;
74:1;75:1;76:1
professor (6)
24:3;29:5;49:13,14,
14,15
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19:8
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6:15,26;9:17;18:25;
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57:2
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48:18;75:4
Prop (8)
59:21,21,23;71:26;
72:3,20;73:8,14
Min-U-Script®

November 25, 2015

proposition (2)
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psychologists (2)
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put (8)
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37:13;47:14,17;48:2;
54:12
puts (1)
28:10
putting (3)
33:2;55:12;75:4

Q
quantify (1)
12:7
qui (9)
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24,24,26;61:25;62:6
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54:24;56:13
quite (1)
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quo (6)
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quote (10)
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37:13;46:13;60:4;
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quote/unquote (3)
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quoted (1)
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9:16;14:19;40:10;
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race (6)
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45:2,6,24;48:9;
reasons (5)
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22:7,22;50:2;53:26;
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rebuttal
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rain (1)
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37:10,21
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55:19
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realities (1)
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really (15)
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regarding (1)
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65:16
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regardless
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72:13
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reason (7)

R

Margaret Baumann

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Rel (1)
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24
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Remember (1)
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25:14
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24:15
reply (6)
5:14;75:21,23,24;
76:25,26
(11) private - reply

People of the State of New York v.
DraftKings, Inc.
report (1)
67:9
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66:13,19,25;67:15
report's (1)
67:6
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5:4;6:13;20:6
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14:18
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51:18;53:9;61:14,
15
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24;74:4
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43:26;53:8,10;54:8;
60:10
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60:16
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66:23
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55:11
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76:26
rights (2)
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45:5
Min-U-Script®

November 25, 2015

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Russian (1)
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Second (12)
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38:25;39:22;50:10;
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seconds (1)
58:2
Section (7)
6:17;7:7;44:24;
46:4;58:25,26;60:21
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S
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8:15
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33:6;34:11
66:2
selected (4)
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5:24;14:19;22:2;
15
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selecting (2)
37:11,18;39:8,10;
36:2;37:5
43:23;45:25;49:19;
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76:13
selections (1)
SANCHEZ (3)
24:10
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40:5
37:23
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38:5
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satisfy (1)
Margaret Baumann

9:2
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19
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31:26;32:18;33:19;
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Series (1)
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36:12
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10:4,23,26,26;11:3,
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21;23:11,16,19,25;
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9,17;26:10,11,15,15,
22,25;27:8,10,17,17,
23;28:8,10;29:2,3,9;
30:5;31:4,5,6,15,17;
32:7;35:8;36:2,19,19;
37:5;38:21,24;40:2;
41:18,25;43:26,26;
45:21;46:25;47:6,15,
19;48:23;49:3;54:9;
58:11;59:4;60:5,12,
13;61:5,6,7,14,19,21;
67:5,5;68:8;74:24,25
skill-based (6)
24:20;28:20,22;
29:6,9;48:18
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24:17,18;27:22;
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58:16
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76:3,4,17
(12) report - slides

People of the State of New York v.
DraftKings, Inc.
slim (1)
17:21
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8:21
small (1)
74:12
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48:25,26
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58:24
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68:24
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21:6
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59:4,19;64:20;67:21;
68:10
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65:6
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69:18
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16:9
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20:25
sources (1)
47:23
special (1)
59:20
spelling (15)
16:11,12,14,15,19,
21,23,24;17:2,5,6;
21:6;23:6;26:6;32:21
spend (1)
16:25
spent (2)
14:25;65:20
spin (1)
16:8
sponsor (1)
70:2
Min-U-Script®

sponsors (2)
23:23;71:11
Sport (5)
68:16,17,20,21,22
sporting (7)
23:4;28:2;34:17;
37:8;49:9,10;73:11
sports (159)
7:5;8:2,3,7,9,10;
9:7,18;10:8,9,12,13,
15,21,24;11:6,7,8;
13:13;16:18;17:10,
18,20;18:18,19;
19:17;22:6,17,20,23;
23:3,10,15,22;24:6;
25:8;29:7;31:23;32:4,
5,5,6,18,24,26;33:13,
17,18,20,21,25;34:2,
9,20;35:2,7,12;36:2,4,
8,18;37:2,16,19,21,
23;38:11;40:4,10;
41:8,12,16;42:9,10,
14,22,23,26,26;43:8,
11,15,15,17,20,21,24,
24,25;44:2,5,9,17;
45:12,13;46:18,19,20;
48:5,12;49:11;52:4,9,
10,10;54:3,4,9,9,11;
56:26;57:2,3,5;59:19,
26;61:6;62:6,11,14,
19;63:10,11,17,24;
64:9,24;65:3;66:4,14;
67:20,25,26;68:2,3,9,
11,23,26;69:3,8,19,
20,22,25;70:5,8,15,
26;71:13,14,14,16;
72:5,9,17;73:7,8;
74:23
sports' (1)
65:18
square (1)
62:20
squarely (1)
10:11
stake (10)
7:17,17,17;22:20;
35:19;39:12;46:6;
56:3,4;60:25
stakes (8)
7:13;13:16;36:14;
45:4;54:25;55:10;
70:22;71:2
staking (7)
14:11;21:26;22:10,
13;33:16;35:19;39:10
stamp (1)
74:2
stand (2)
11:3;44:6
standard (10)
7:23;11:12,19;
29:22;60:8,8,13,23;
66:16;74:4

November 25, 2015
standards (2)
69:3;75:11
start (3)
20:8;40:14;41:2
starts (2)
39:10;43:12
State (54)
5:25;6:3,12,16,18,
22;9:13;13:9;14:15;
15:5;19:7,14,17;
20:12,15;21:15;22:3,
22;23:13,17;25:4,20,
25;26:4;28:2;29:16,
19,20;31:21;32:20;
33:24;34:16;35:3,12,
15,22;36:10;38:6;
39:4,8,17;51:11;
52:16;55:8;60:5;
63:20;68:11;69:6,20;
70:19;71:7,7,9,10
stated (2)
29:18;33:24
statements (2)
15:6;59:16
States (2)
25:14;37:17
State's (6)
5:26;6:21;19:11;
20:7;29:2;69:23
statistical (5)
13:18;47:10;66:11;
74:9,11
statistically (1)
23:23
statistics (5)
12:20;13:21;48:18,
21;59:24
status (6)
51:22,25,26;52:2,3,
19
statute (57)
10:6;11:9,21,23;
12:4;14:16;15:8,9,13,
20,21,23,26;19:7;
22:8,12,19;29:14;
33:16;35:16,17,23;
37:18;38:16;39:9,12,
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41:11,14,21;42:8,15;
43:10;54:20,21,23;
55:21,24;56:2,17;
57:2;58:10,23,24;
59:13;60:10;61:25;
62:2,7;70:20;71:4;
73:3,3
statutory (5)
46:4,5;49:4,5;57:4
step (4)
27:20;33:8,8;45:20
steps (1)
71:21
still (10)
13:9,13;18:5;23:24;
Margaret Baumann

29:24;40:20;41:26;
42:3;68:13,15
stop (5)
5:12;9:13;39:20,21;
40:13
straight (1)
69:12
streak (1)
10:17
stressed (1)
23:17
strikingly (1)
13:17
strive (1)
14:4
strong (1)
51:20
structure (1)
39:8
studied (1)
26:7
studies (4)
24:8,23;42:11;
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study (4)
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subject (3)
29:16;71:18;72:26
submission (2)
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submit (1)
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submitted (5)
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subset (1)
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succeed (2)
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succeeding (1)
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success (8)
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suggest (6)
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suggested (2)
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suggesting (1)
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summary (1)
50:5
Sunday (1)
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superior (4)
18:2;26:24;32:9;
71:25
superseded (1)
12:4

supply (1)
53:8
support (1)
13:2
supporting (1)
58:8
supportive (1)
52:10
Supreme (6)
14:24;27:3,6,14;
50:16,19
sure (5)
5:15;12:13;37:22;
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suspect (1)
50:6
suspended (1)
8:16
system (1)
72:3

T
Tab (1)
43:7
tabs (1)
76:11
tackle (1)
10:18
talent (1)
45:16
talk (8)
22:15;34:4;38:15;
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54:23;71:12
talked (6)
32:4;34:7;38:23;
39:9,26;56:18
talking (7)
25:21;36:6;43:13;
47:25;51:12;70:14;
73:9
talks (3)
33:16;35:16;47:5
tallied (1)
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tam (9)
15:9,20,26;55:21,
24,24,26;61:25;62:6
taps (1)
17:13
task (1)
12:6
taught (1)
41:25
taxed (2)
11:16;13:20
team (21)
8:25;9:3,9;17:4;
33:2,3,13,15;34:14;
36:2,3;44:18,20;
54:14,14,15,16;55:12,
13;59:24;71:21
(13) slim - team

People of the State of New York v.
DraftKings, Inc.
teams (4)
33:4;34:11;35:7;
72:25
television (1)
65:6
teller (1)
9:2
temporary (2)
14:20;51:24
ten (3)
5:15;33:7;65:23
tendency (1)
26:15
tens (1)
65:24
term (1)
23:12
terms (2)
18:24;26:14
terribly (1)
33:15
test (9)
10:6;11:11;12:3;
13:12;29:12;56:26;
60:17,18,18
testimony (6)
27:8;47:2;48:15;
53:10;66:10,23
tests (3)
24:16;60:14,19
thematically (1)
35:21
theory (1)
64:23
thereafter (1)
38:25
therefore (1)
13:25
therein (2)
10:5;60:12
third (4)
9:23;24:22;37:11;
38:9
though (8)
20:12;23:18;26:6;
27:8,19;36:22;51:4,5
thought (1)
32:13
thousands (1)
65:24
three (9)
7:4,8;9:14;24:7,26;
41:5;53:17;69:3,14
three-part (1)
60:22
threshold (4)
22:19;34:20;39:18;
54:26
threw (1)
71:7
throw (2)
41:24,26
throwing (2)
Min-U-Script®

45:11;64:17
throws (1)
71:9
thus (3)
9:14;14:10;45:3
Tillman (1)
26:20
times (4)
11:2;21:17;27:19;
48:10
tipped (1)
10:18
today (19)
5:19;6:12,22;11:11;
19:14;22:25;25:22;
29:20,23;38:14;59:2,
17;60:15;62:13;
63:22,23;64:8;67:24;
69:11
together (4)
17:4;33:2,8;55:12
told (2)
47:24;55:21
took (1)
31:12
Top (3)
17:18,21;64:26
totally (1)
69:10
touchdown (1)
8:14
tournaments (1)
23:21
towards (1)
66:16
trade (1)
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traditional (25)
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62:19
treat (1)
29:17
trial (6)
27:6;47:2;48:15;
52:24;74:7;75:4
trigger (1)
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39:7,15;43:13,14,14;
44:14,22;45:12,13;
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truly (1)
69:7

November 25, 2015
try (2)
51:24;69:21
trying (7)
25:14;51:21,26;
52:19;59:3;64:10,13
turf (1)
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turn (6)
23:8;31:8;43:7;
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26:26
Turner (1)
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TV (5)
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TVs (1)
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Two (17)
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51:10;52:2;61:2;
64:24,25;69:11;71:6;
72:18,24
type (2)
15:11;22:6
types (1)
16:10
typically (1)
62:15

70:24
unlawful (1)
18:7
unlikely (1)
67:2
unnecessary (4)
22:16;38:24;39:6;
66:17
unpublished (1)
14:26
unquote (7)
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60:6;61:8,21
unsurprisingly (1)
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up (18)
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48:26;53:22;56:3;
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uncertainty (1)
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Margaret Baumann

17:20;74:12
verbal (2)
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view (1)
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viewed (1)
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violation (2)
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virtually (1)
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W
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way (17)
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ways (4)
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46:24
weather (2)
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website (3)
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week (4)
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14:20
weekend (1)
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weeks (1)
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weigh (2)
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well-recognized (1)
21:11

(14) teams - well-recognized

People of the State of New York v.
DraftKings, Inc.
weren't (1)
76:4
wet (1)
8:22
whereas (1)
68:17
whereby (1)
26:25
wherein (1)
11:15
whichever (1)
5:9
whole (2)
63:3;64:11
who's (2)
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whose (2)
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widespread (1)
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win (8)
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28:16;33:15;44:26;
50:14;74:12
wind (1)
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winds (1)
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winner (5)
8:9,10;23:25;38:21;
70:2
winners (5)
20:14;21:3;63:19;
68:4,4
winning (6)
18:10;23:15,17,24;
28:11;72:21
winnings (1)
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wins (3)
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14:16;22:24;28:3;
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60:20;62:20;63:25;
64:12,12;68:11;69:4,
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47:22;52:24;68:5;
74:2;75:3,4,4,6
witness (1)
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witnesses (1)
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word (7)
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26:5,7;42:7;71:15
words (11)
8:5;14:24;15:22,23,
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20;65:9;71:7
work (1)
34:11
Min-U-Script®

November 25, 2015

working (1)
76:8
world (15)
8:3;10:13;18:10;
43:14;44:21;46:12,
19;49:22;59:20;
72:21,22,24;73:7,11;
74:23
worse (1)
10:23
worth (1)
24:7
worthless (1)
59:7
worthy (2)
63:21;66:12
Wright (6)
8:23;58:7,15,18,19,
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34:3
wrong (2)
23:9;55:23
Wyner (2)
12:9;49:13

Y

40:13;48:24
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74:17
1:00 (4)
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1:05 (1)
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1:08 (1)
6:8
10 (1)
42:3
11:00 (1)
32:13
12:05 (1)
5:4
13 (1)
26:21
15 (4)
43:7,7;54:6;58:2
16 (2)
9:4;43:22
17 (2)
43:25;54:6
1965 (1)
29:17

3d (1)
26:21

4
4 (2)
51:18;69:16
41 (1)
44:23

5
5 (1)
47:26
50 (5)
11:20;23:24;25:13;
34:2;48:25
50-50 (1)
23:21

6
6 (1)
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6312 (2)
6:13,17

2
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yards (2)
8:13,20
year (4)
52:2;65:19,21,25
years (17)
11:19,20;24:4;
34:26;52:3,3,5,6,23,
24;55:4,6,8,14;70:16;
75:2,10
yelling (1)
9:11
York (40)
6:16;7:3;11:8,19;
15:17,20,23;16:4;
18:8,12;19:14,17;
20:23;21:25;29:13;
35:20;38:6,8;39:9,14,
15;46:11;50:17;
51:13,14,15;52:4;
55:3,5,14;56:5;64:2;
65:17,25,26;68:11;
70:9;71:4;74:8;75:8
Yorkers (2)
19:9;70:16
York's (1)
15:22

Z
zeros (1)
48:25

1
1 (2)

2 (2)
40:25;51:17
2,000 (1)
65:22
2:05 (1)
5:12
20 (1)
44:25
2006 (1)
26:21
2015 (1)
65:23
205 (1)
40:11
22 (1)
20:19
225 (11)
7:7;46:4;58:26;
60:21,22;63:8,9,25;
69:4,9,13
25 (1)
58:5
2A40-1 (1)
61:25
2C37-1 (1)
62:3

7 (1)
47:18
736 (1)
26:21

9
91 (1)
74:18
986 (1)
58:25

3
3 (2)
20:15;51:17
30 (1)
19:24
35 (1)
40:20
Margaret Baumann

(15) weren't - 986

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