DraftKings’ Latest Brief Challenges Hermalyn’s ‘Excuses and Lies,’ Says Early Evidence Was Just ‘Tip of the Iceberg’

In its latest Hermalyn-related legal filing, DraftKings (DK) has challenged its former VIP head’s opposition to its injunction request. The brief, filed March 28, urges the court to “grant DK’s Motion for Preliminary Injunction,” arguing the “record refutes” Michael Hermalyn’s “excuses and lies.”

The court, the document argues, initially granted a temporary restraining order (TRO) based on just four documents DraftKings now calls the “tip of the iceberg.” In the weeks since DraftKings says it uncovered a “multi-week campaign of brazen theft and cover-ups” that struck the heart of its VIP business.

Hermalyn’s wrongdoing, the brief alleges, “culminated in egregious misconduct,” including “false testimony, spoliation, and contempt of this Court’s TRO.”

Yet, in the face of the evidence against him, DraftKings claims Hermalyn—who now runs Fanatics’ VIP effort—made a “fateful decision.”

Rather than come clean, he lied in his sworn declarations, verified interrogatories, sworn deposition testimony, court-ordered certification, and now in his opposition to DK’s preliminary injunction motion.

DraftKings Argues Non-Compete Must Stand

In its Reply in Support of Plaintiff’s Motion for Preliminary Injunction, DraftKings highlights the newer evidence of Hermalyn’s alleged wrongdoing. The brief also refutes the defendant’s arguments against the requested injunction based, at least in part, on Hermalyn’s alleged dishonesty.

Defendant now comes before this Court and asks it to take him at his word when he offers flimsy and self-serving excuses for his misconduct. But when a litigant lies over and over again, and spoliates evidence, it is not just consciousness of guilt. It is also bad faith and unclean hands, and fully justifies drawing an adverse inference.

DraftKings argues that Hermalyn’s “flimsy excuses and explanations” do nothing to rebuke its “overwhelming” evidence. Instead, DraftKings suggests his “own admissions, undisputed evidence,” and “purported failures to recall alone” show DraftKings’ claims “will ultimately prevail.”

Thus, DraftKings argues the “totality of the evidence” requires a preliminary injunction to prevent immediate and irreparable harm to its business.

Hermalyn, the brief’s introduction concludes, must be barred from his role with Fanatics.

Defendant cannot be trusted to abide by the contracts he willingly signed, and anything less than an order enjoining him from working for Fanatics will not suffice to protect DK.

With the next hearing scheduled for 10 am EST on Tuesday in Boston, who the court will ultimately side with is, for now, unknown. What’s certain is this isn’t the last we’ll hear from DraftKings or Hermalyn on the matter.

About the Author

Robyn McNeil

Robyn McNeil

Robyn McNeil (she/they) is a Nova Scotia-based writer and editor, and a lead writer at Bonus. Here she focuses on news relevant to online casinos, while specializing in responsible gambling coverage, legislative developments, gambling regulations, and industry-related legal fights.
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