Christopher Leong v.. Crown Nj Gaming Inc. D/b/a Draftkings and Crown Gaming Inc.,Brief in Support of Plaintiff's Motion for Preliminary Approval of Proposed Settlement with Crown Nj Gaming Inc. and Crown Gaming Inc. and Approval of the Proposed Notice of the Settlement No. 19-Cv-12424-Jhr-Js (D.n.j. Apr. 17,2020)

i. Payment to Settlement Class members

Crown will deposit one hundred fifty (150) “DraftKings Dollars” into the DraftKings account of Class Members who fully complete and timely submit a claim form.

ii. Incentive payment to Named Plaintiff

Subject to Court approval, Crown has agreed to pay Named Plaintiff $7,000.00 US Dollars as incentive compensation for his efforts as the Named Plaintiff in the Action.

iii. Injunctive relief

For a period of three years, Crown will disclose in writing as a part of the Tournament Rules for any SBNC that: (1) there is no advantage with respect to the timing of grading of any wager for contestants who are physically present at a SBNC venue; (2) given the timing for grading and the potential for a delayed finish or overtime, it may not be possible to reinvest winnings from one bet before the start of another bet; and (3) all SBNC contestants will be subject to the same betting limit rules. Although limits will be applied consistently among all contestants, limits are impacted by a contestant's individual wager(s). Limits may be impacted when certain wagers are accepted or rejected.

i. The proposed settlement class is sufficiently numerous

There is no threshold number required to satisfy the numerosity requirement, and the most important factor is whether joinder of all parties would be impracticable for any reason. See Stewart v. Abraham, 275 F.3d 220, 226–27 (3d Cir. 2001) (noting that there is no minimum number to satisfy numerosity and observing that generally the requirement is met if the number of class members exceeds 40). Here, the Complaint alleges that 192 persons participated in the SBNC. Compl. ¶ 51. Accordingly, the Settlement Class is sufficiently numerous to satisfy Rule 23(a)(1).

ii. Common questions of law and fact bind the settlement class

Rule 23(a)(2) requires a showing of the existence of “questions of law or fact common to the class.” Importantly, “Rule 23(a)(2)'s commonality requirement does not require identical claims or facts among class member[s].” Marcus v. BMW of North America, 687 F.3d 583, 597 (3d Cir. 2012) (citation and internal quotation marks omitted). “The commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class.” Stewart, 275 F.3d at 227 (citations, quotation marks, and emphasis omitted); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (explaining that, for commonality to be satisfied, the answer to the common question must help “drive the resolution” of the litigation) (citation omitted).

The commonality requirement of Rule 23(a)(2) is met here. Plaintiff's allegations focus on Crown's alleged misrepresentations about and operation of the SBNC. All Settlement Class Members therefore share the following legal and/or factual questions:

Because there are several common legal and factual questions related to liability, the commonality requirement of Rule 23(a)(2) is easily met.

iii. Plaintiff's claims are typical of those of the settlement class

Rule 23(a)(3) requires that the class representatives' claims be “typical of the claims … of the class.” As the Third Circuit explained:

The typicality inquiry is intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented.

Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994) (citations omitted); see also Marcus, 687 F.3d at 598 (“If a plaintiff's claim arises from the same event, practice or course of conduct that gives rise to the claims of the class members, factual differences will not render that claim atypical if it is based on the same legal theory as the claims of the class.”). Moreover, the “typicality requirement is designed to align the interests of the class and the class representatives so that the latter will work to benefit the entire class through the pursuit of their own goals.” See Prudential, 148 F.3d at 311.

Here, Plaintiff's claims are typical when compared to those held by the other members of the Settlement Class. Plaintiff and the Settlement Class Members entered the same contest, the SBNC, and their claims all arise out of representations related to that contest and the administration of that contest. This satisfies Rule 23(a)(3).

iv. Plaintiff and class counsel are adequate representatives of the settlement class

Rule 23(a) requires that the representative parties fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(a)(4). As the Third Circuit explained in Bogosian v. Gulf Oil Corp., 561 F.2d 434, 449 (3d Cir. 1977), the adequate representation requirement of Rule 23(a)(4) guarantees “that the representatives and their attorneys will competently, responsibly, and vigorously prosecute the suit and that the relationship of the representative parties' interest to those of the class are such that there is not likely to be divergence in viewpoint or goals in the conduct of the suit.”

The adequacy requirement is met in this case. Class Counsel has extensive experience with gaming law throughout the United States, and has acted to develop and litigate the claims on behalf of the Settlement Class. Further, Class Counsel selected Plaintiff to act as lead plaintiff after consulting with other similarly situated persons. Compl. ¶ 54. Plaintiff has adequately represented the interests of the absent members of the Settlement Class and no conflicts exist between Plaintiff and the absent members of the Settlement Class.

i. Common legal and factual questions predominate over any individual issues

In order to satisfy Rule 23(b)(3)'s requirement that common questions of law and fact predominate, “the predominance tests asks whether a class suit for the unitary adjudication of common issues is economical and efficient in the context of all the issues in the suit.” Sullivan v. D.B. Investments, Inc., 667 F.3d 273, 297 (3d Cir. 2010) (quoting Rubenstein, Conte, & Newberg, Newberg on Class Actions § 4:25 (4th ed. 2010)). The touchstone of predominance is whether the proposed class is “sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 597. The rule, however, “does not require a plaintiff seeking class certification to prove that each element of her claim is susceptible to classwide proof.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 469 (2013) (internal quotation marks, emphasis, alterations, and citations omitted). Rather, predominance is determined by whether “the efficiencies gained by class resolution of the common issues are outweighed by individual issues presented for adjudication.” Varacallo, 226 F.R.D. at 231 (citations omitted); see also In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180, 186 (D.N.J. 2003) (predominance requires that “common issues be both numerically and qualitatively substantial in relation to the issues peculiar to individual class members”). “[T]he focus of the predominance inquiry is on whether the defendant's conduct was common as to all of the class members, and whether all of the class members were harmed by the defendant's conduct.” Sullivan, 667 F.3d at 298. Moreover, the mere existence or possibility of some individual issues does not defeat class certification. Mercedes Benz, 213 F.R.D. at 186.

In this Action, Plaintiff and the other members of the Settlement Class all allegedly paid entry fees to participate in the SBNC. Plaintiff and the members of the Settlement Class have the same interest in establishing liability, and they all seek damages from Crown. They will all rely on the same evidence of Crown's alleged misrepresentations and administration of the SBNC and will rely on the entry fees they paid to show the fact and amount of harm that they incurred. Accordingly, the predominance requirement is easily satisfied.

ii. A Class Action is Superior to Other Methods of Adjudication

In addition to predominance, Rule 23(b)(3) requires a showing that a class action is “superior to other available methods for fairly and efficiently adjudicating a controversy.” Fed. R. Civ. P. 23(b)(c). To this end, the Court must balance, in terms of fairness and efficiency, the advantages of class action treatment against alternative available methods of adjudication. Prudential, 148 F.3d at 316. Further, in evaluating the superiority of a class action, the Court should inquire as to the class members' interest in individually controlling the prosecution of separate actions, the extent and nature of any litigation concerning the controversy already commenced by members of the class, and the desirability or undesirability of concentrating the litigation of the claims in the particular forum. Fed. R. Civ. P. 23(b)(3).

Here, a class action is superior to other available methods of adjudication “because litigating all of these claims in one action is … far more desirable than numerous separate actions litigating the same issues.” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 259 (3d. Cir. 2009) (internal quotations omitted). By proceeding as a class action, resolution of common issues will lead to an efficient use of judicial resources and a result that is binding on all members. In addition, each Class Member's damages are too small to warrant individual actions when considering the expense and burden of individual litigation. Compl. ¶ 59.