DraftKings’ Former Exec Files Opposition to Plaintiff’s Motion

DraftKings (DK), the recognizable betting and gaming operator with a strong presence in North America, was tangled in a legal battle with a former executive recently. The case involved Michael Hermalyn, a former senior vice president of growth at DK and current president of VIP at Fanatics. The executive who is no longer a part of DK, filed a lawsuit against his former employer over non-compete clauses, deeming them as “unenforceable” and “overly restrictive.”

DK responded with allegations that Hermalyn obtained customer data, among other claims. The former DK executive dismissed the allegations, saying that they are “completely false and fabricated.” Amid the ongoing legal saga, a court issued a temporary restraining order against Hermalyn. As a result, he was restricted from disclosing sensitive information to Fanatics, his new employer.

In the latest chapter of the legal saga, Hermalyn filed an Opposition to Plaintiff’s Motion for Preliminary Injunction with the United States District Court in the District of Massachusetts. In the recent filing, the former DK executive claimed that the company has been aggressive toward employees leaving for better opportunities with other employers.

He claimed that since 2021 when Fanatics announced its plans to launch an online sportsbook, nearly 190 employees from DK submitted their applications. “Trying to halt this trend, DK attempts to make an example out of Hermalyn, transparently to instill fear in other DK employees looking to jump ship and halt lawful recruiting activity by Fanatics,” wrote Hermalyn.

“DK has a long history of aggressively smearing employees who leave or seek greener pastures with other employers. Underlying DK’s attacks is the fact that, since Fanatics announced it was launching an online sportsbook in 2021, 186 DK employees have applied for a position with Fanatics,“

reads a filing by Michael Hermalyn

The Former DK Executive Refutes the Accusations

The recent Opposition to Plaintiff’s Motion for Preliminary Injunction reads: “Despite the passage of nearly two months since Hermalyn joined Fanatics, DK does not claim that it has lost a single customer to Fanatics. Nor does DK claim that it has lost any employees to Fanatics. To be clear, this is not a case in which an employee was hired to move a book of business from one company to another: Fanatics already has 100 million customers in the U.S., each of DK and Fanatics have tens of thousands of VIP customers, and it is well known that many if not all those customers overlap.”

“DK’s claims that Hermalyn “downloaded” documents on a “non-DK device” are outrageous, as Hermalyn was simply viewing documents on his personal phone for DK work, as he has done since Day 1 of his employment there. DK doesn’t tell the Court that the “non-DK device” was Hermalyn’s personal phone, which he was authorized to use and routinely used for DK work during his entire time with DK. DK also ignores that it does not even issue company phones to employees, and therefore all DK employees are authorized to and routinely use their personal devices for DK work,” argued the former DK executive.

Additionally, Hermalyn wrote in the recent filing: “DK’s trade secret claims gloss over the fatal fact that Hermalyn returned all DK property, documents, and information before starting at Fanatics. DK trumpets that Hermalyn “stole” DK documents. But DK doesn’t tell the Court that before he accepted his offer from Fanatics, Hermalyn went above and beyond to ensure that he no longer possessed any DK property, documents, or information.”