MCAFEE v. DRAFTKINGS, INC.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MATTHEW MCAFEE, on behalf of
himself and all others similarly situated
)
)
)
Plaintiff, 	)
)
v. 	) 	No. 1:24-cv-01168-JPH-MJD
)
DRAFTKINGS, INC., 	)
)
Defendant. 	)
ORDER GRANTING PLAINTIFF'S AMENDED MOTION
FOR CLASS CERTIFICATION
Matthew McAfee and 98 other Indiana residents placed 140 bets with
DraftKings on a single NBA game. 	DraftKings cancelled those bets after they
won, contending that they were offered with incorrect odds. 	Mr. McAfee then
filed this case alleging that DraftKings's cancellation breached a contract
between him and DraftKings. 	Mr. McAfee seeks to certify a class of all Indiana
residents whose bets on that game won and then were cancelled by DraftKings.
Dkt. [108]. 	For the reasons to follow, that motion is GRANTED.
I.
Facts and Background
On October 24, 2023, Mr. McAfee and 98 other Indiana residents placed
bets with DraftKings on an NBA basketball game between the Los Angeles
Lakers and Denver Nuggets (the "Game"). 	Dkt 108-1 at 1; dkt. 1-2 at 2-3.
These bets were all placed during a seven-minute period, from 4:25 pm to 4:32
p.m. on the day of the Game. 	See dkt 108-1 at 3–4. DraftKings accepted the
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bets, dkt. 85 at 2, and all the bets won, dkt. 108-1 at 3-4. But the next
morning DraftKings cancelled the bets, claiming that the "markets . . . were
offered for incorrect odds." 	Dkt. 108-1 at 11. 	Mr. McAfee alleges that by
canceling his bet, DraftKings breached a contract with him. 	Dkt 108 at 1.
Mr. McAfee brought this action on behalf of a putative class alleging
breach of contract and violations of Indiana's Deceptive Consumer Sales Act.
Dkt. 1-2 at 3–5. 	The Court granted DraftKings's motion to dismiss Mr.
McAfee's DCSA claims and denied its motion to dismiss his breach of contract
claim. 	Dkt. 81. 	Mr. McAfee has filed a motion for class certification, proposing
a class of himself and "all persons similarly situated in the State of Indiana
who placed a winning wager on the October 24, 2023, Los Angeles Lakers v.
Denver Nuggets professional basketball game that was subsequently canceled
by DraftKings." 	Dkt. 108 at 2.
II.
Class Certification Standard
Class actions were designed as "an exception to the usual rule that
litigation is conducted by and on behalf of the individual named parties only."
Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 155 (1982). 	"Federal Rule of
Civil Procedure 23 governs class actions." 	Santiago v. City of Chicago, 19 F.4th
1010, 1016 (7th Cir. 2021). 	"Rule 23 gives the district courts broad discretion
to determine whether certification of a class-action lawsuit is appropriate,"
Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008), and "provides a one-size-
fits-all formula for deciding the class-action question," Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 399 (2010).
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Rule 23(a) imposes "four—and only four—requirements for class
certification: numerosity, commonality, typicality, and adequacy of
representation." 	Simpson v. Dart, 23 F.4th 706, 711 (7th Cir. 2022). 	In
addition to those "prerequisites," the class must fit one of Rule 23(b)'s
"particular types of classes, which have different criteria." 	Santiago, 19 F.4th
at 1016. 	"A class may only be certified if the trial court is satisfied, after a
rigorous analysis, that the prerequisites for class certification have been met."
Id. "In conducting this analysis, the court should not turn the class
certification proceedings into a dress rehearsal for the trial on the merits."
Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
III.
Analysis
A. Ascertainability
In addition to satisfying the prerequisites of Federal Rule of Civil
Procedure 23(a), "a class must be sufficiently definite that its members are
ascertainable." Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 493 (7th Cir.
2012). 	Here, Mr. McAfee seeks to certify a class consisting of "all persons
similarly situated in the State of Indiana who placed a winning wager on the
October 24, 2023, Los Angeles Lakers v. Denver Nuggets professional
basketball game that was subsequently canceled by DraftKings." 	Dkt. 108 at
2. 	DraftKings argues that because the bets were not written contracts, this
proposed class cannot be ascertained without individualized inquiries into each
bettor's subjective understanding of whether their bet formed a contract. 	Dkt.
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116 at 4–8. 	Mr. McAfee responds that any individualized inquiry is premature
because determination of the terms of the contract is a merits issue. 	Dkt. 117
at 3.
For a class's members to be ascertainable, the class must "be defined
clearly and based on objective criteria." 	Mullins v. Direct Digital, LLC, 795 F.3d
654, 657 (7th Cir. 2015). 	"[C]lasses that are defined by subjective criteria,
such as by a person's state of mind" are insufficient because they require the
"Sisyphean task" of identifying class members based on each person's state of
mind. 	Id.; Simer v. Rios, 661 F.2d 655, 669–70 (7th Cir. 1981); see also Jamie
S., 668 F.3d at 495. 	So, in Simer, a class was not ascertainable when its
membership turned on whether the potentially impacted individuals knew of
and were discouraged by a government regulation. 	661 F.2d at 669.
The class definition here, by contrast, defines the class as bettors in
Indiana who won certain wagers they placed with DraftKings. 	Dkt. 108-1 at 3-
4. 	Each class member placed the wager in Indiana, on the same NBA
basketball game, on the same day—in fact, during the same seven-minute
period. 	Id. at 4. 	Those objective facts are the only membership criteria. 	See
id. at 2. 	Indeed, the class has already been identified as including Mr. McAfee
and 98 similarly situated members. 	Id. at 4. 	So, unlike in Simer, identifying
members of the proposed class does not turn on each member's state of mind.
Simer, 661 F.2d at 668–69. 	This case is instead like Mullins, where the
Seventh Circuit addressed a class of consumers who purchased a medical
supplement within a particular period, holding that the definition was not
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vague because it "identified a particular group of individuals . . . harmed in a
particular way . . . during a specific period in particular areas." 795 F.3d at
658–61.
DraftKings's argument that the class is not ascertainable goes to the
merits of whether the bets placed by putative class members formed a contract,
not whether the class is ascertainable. 	See dkt. 116 at 9–10; Mullins, 795 F.3d
at 657–58, 674 (explaining that ascertainability focuses on the adequacy of the
class definition and "express[ing] no view on the merits"). 	While the Rule 23
analysis will "[f]requently . . . entail some overlap with the merits of the
plaintiff's underlying claim," Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011), "certification is largely independent of the merits . . . and a certified
class can go down in flames on the merits," Arandell Corp. v. Xcel Energy, Inc.,
149 F.4th 883, 893 (7th Cir. 2025); see also Schleicher v. Wendt, 618 F.3d 679,
687 (7th Cir. 2010) ("The chance, even the certainty, that a class will lose on
the merits does not prevent its certification.").
The class here is therefore ascertainable. 	See Mullins, 795 F.3d at 657–
61.
B. Rule 23(a) Requirements
1. Numerosity
To satisfy the numerosity requirement, the proposed class must be "so
numerous that joinder of all members is impracticable." 	Fed. R. Civ. P.
23(a)(1). 	DraftKings does not contest numerosity, and Mr. McAfee has
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designated evidence indicating that the class consists of himself and 98 other
Indiana residents. 	See dkt 108-1 at 4; dkt 110.
A class of 99 is sufficient to meet the numerosity requirement. See
Mulvania v. Sheriff of Rock Island Cnty., 850 F.3d 849, 860 (7th Cir. 2017)
("While there is no magic number that applies to every case, a forty-member
class is often regarded as sufficient to meet the numerosity requirement.").
2. Commonality
To satisfy the commonality requirement, there must "be one or more
common questions of law or fact that are capable of class-wide resolution and
are central to the claims' validity." 	Beaton v. SpeedyPC Software, 907 F.3d
1018, 1026 (7th Cir. 2018). 	Mr. McAfee argues that there are two common
questions: (1) "What are the terms of the applicable contract?" and (2) "Did
DraftKings breach the contract?" 	Dkt. 109 at 5. 	DraftKings responds that Mr.
McAfee "cannot establish how, under his theory, the Court could determine the
terms of the alleged agreement on a classwide basis." 	Dkt 116 at 10.
"The proper focus of commonality is whether determination of the
question will yield common answers that could resolve the litigation." 	Red
Barn Motors, Inc. v. NextGear Cap., Inc., 915 F.3d 1098, 1102 (7th Cir. 2019).
It therefore is not necessary to determine the exact terms of a contract at the
class certification stage, so long as the class raises a common contention
capable of resolution in one stroke. 	See id.
That is the case here because of the class's common contention that a
contract was formed with each class member in the same way—by placing a
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bet with DraftKings. 	See dkt 109 at 5. 	Regardless of whether a contract was
formed and, if so, whether the House Rules set the terms, that presents a
question common to members of the proposed class. 	See Red Barn Motors, 915
F.3d at 1102 ("With such a form contract, almost universally signed without
negotiation or modification, there is no reason to think that the interpretation
of the provision will vary from one signatory to another, and therefore the issue
is one that is capable of a common answer."). 	And even "a single common
question will do." 	Wal-Mart, 564 U.S. at 359.
The commonality requirement is therefore satisfied. 	See Red Barn
Motors, 915 F.3d at 1102.
3. Typicality & Adequacy of Representation
To satisfy the typicality and adequacy of representation requirements,
"the claims or defenses of the representative party [must] be typical of the
claims or defenses of the class," Muro v. Target Corp., 580 F.3d 485, 492 (7th
Cir. 2009), and the representative parties must "fairly and adequately protect
the interests of the class," Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 625
(1997). 	"A claim is typical if it 'arises from the same event or practice or course
of conduct that gives rise to the claims of other class members and . . . [the]
claims are based on the same legal theory.'" 	Oshana v. Coca–Cola Co., 472
F.3d at 514 (7th Cir. 2006). 	And representation is adequate when the named
plaintiff's interests align with the proposed class members' interests and when
proposed class counsel will competently represent the class. 	See Gomez v. St.
Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011).
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DraftKings argues that typicality and adequacy of representation are
lacking here because DraftKings may have defenses peculiar to Mr. McAfee.
Dkt. 116 at 10-12 (citing CE Design Ltd. v. King Architectural Metals, Inc., 637
F.3d 721, 726 (7th Cir. 2011)). 	Mr. McAfee contends that his interests are
consistent with those of the proposed class, and therefore his claims are
typical, and he and his counsel are adequate. 	Dkt. 109 at 5-7.
While "an arguable defense peculiar to the named plaintiff . . . may
destroy the required typicality," CE Design, 637 F.3d at 726, DraftKings has
not identified any defense peculiar to Mr. McAfee. 	Instead, DraftKings claims it
has a defense that Indiana law "expressly permits DraftKings to void a wager if,
as here, the entitlement is based on criteria clearly set forth in its House rules."
Dkt. 116 at 12. 	But DraftKings does not explain why that defense would not
be common to the entire class, since all class members placed their bets with
DraftKings. 	See id.1 Moreover, the claim of every class member "arises from
the same event or practice or course of conduct" and "[is] based on the same
legal theory," Oshana, 472 F.3d at 514. 	That is enough to satisfy the typicality
requirement. 	See id.; see also Muro, 580 F.3d at 492 ("[T]he typicality
requirement may be satisfied even if there are factual distinctions between the
claims of the named plaintiffs and those of other class members.").
1 If DraftKings is correct that its House Rules govern the parties' contractual
relationship, it still offers no evidence that any class members placed their bets
without agreeing to those House Rules. See dkt. 116 at 11. Instead, DraftKings
indicates that it would not be possible for a DraftKings user to place a bet without
agreeing to the Terms of Use. See id. at 6, n.1.
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For the same reasons, DraftKings has not shown that Mr. McAfee is not
an adequate class representative based on any defense peculiar to Mr. McAfee.
See dkt 116 at 10-12. 	Mr. McAfee's interests appear entirely consistent with
those of the proposed class—there is nothing "idiosyncratic or possibly unique"
about his claims. 	Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 758 (7th Cir.
2014).
Finally, DraftKings does not dispute that Mr. McAfee's counsel will
adequately represent the class. 	Attorney Robert Duff has twenty-nine years of
litigation experience and has experience litigating similar cases. 	Dkt 108-1 at
2. 	There is no indication that Mr. Duff's interests conflict with those of the
proposed class.
The typicality and adequacy-of-representation requirements are therefore
satisfied.
C. Predominance under Rule 23(b)(3)
"[A] class action may only be maintained under Rule 23(b)(3) if 'the court
finds that the questions of law or fact common to class members predominate
over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the
controversy.'" 	Santiago, 19 F.4th at 1016 (quoting Fed. R. Civ. P. 23(b)(3)). 	In
assessing those requirements, courts should consider:
(A) 	the 	class 	members' 	interests 	in 	individually
controlling 	the 	prosecution 	or 	defense 	of 	separate
actions;
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(B) the extent and nature of any litigation concerning
the 	controversy 	already 	begun 	by 	or 	against 	class
members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3).
DraftKings argues that individual questions predominate because
individualized inquiries into the existence and terms of the alleged contracts for
each class member will be required. 	Dkt. 116 at 8. 	Mr. McAfee contends that
common questions predominate because he "and the proposed class members
have all been treated exactly [the] same and the predominant issue is whether
[DraftKings] breached its contract with [him] and the prospective class
members." 	Dkt 109 at 7.
The "predominance requirement is satisfied when common questions
represent a significant aspect of a case and can be resolved for all members of
a class in a single adjudication." 	Messner, 669 F.3d at 814. 	"Or, to put it
another way, common questions can predominate if a 'common nucleus of
operative facts and issues' underlies the claims brought by the proposed class."
Id. "Individual questions need not be absent"—Rule 23 "requires only that
those questions not predominate over the common questions affecting the class
as a whole." 	Id.
"Analysis of predominance under Rule 23(b)(3) begins, of course, with the
elements of the underlying cause of action." 	Id. 	Under Indiana contract law,
which governs this case, see Webber v. Butner, 923 F.3d 479, 480-81 (7th Cir.
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2019), "a plaintiff must prove that: (1) a contract existed, (2) the defendant
breached the contract, and (3) the plaintiff suffered damage as a result of the
defendant's breach." 	Collins v. McKinney, 871 N.E.2d 363, 370 (Ind. Ct. App.
2007). 	What matters for predominance is whether the contract claim can be
proven at trial "through evidence common to the class rather than individual to
its members." 	Messner, 669 F.3d at 818.
Substantial individual inquiries are unlikely here because, under Indiana
law, intent to contract is objective. 	Akin v. Simons, 180 N.E.3d 366, 377 (Ind.
Ct. App. 2021). 	So "the intent relevant in contract matters is not the parties'
subjective intents but their outward manifestation of it." 	Id. (citing Gerdon
Auto Sales, Inc. v. John Jones Chrysler Dodge Jeep Ram, 98 N.E.3d 73, 80 (Ind.
Ct. App. 2018)). 	And "the intention of the parties to a contract is a factual
matter that must be determined from all the circumstances," Jetz Service Co.,
Inc. v. Ventures, 165 N.E.3d 990, 994 (Ind. Ct. App. 2021), which here include
the objective act of placing a bet on DraftKings's platform.
Indeed, neither party disputes that Mr. McAfee and 98 other Indiana
residents placed 140 wagers on the October 24, 2023, Los Angeles Lakers and
Denver Nuggets game through the DraftKings app and that those winning
wagers were never paid. 	That provides a "common nucleus of operative facts
and issues" underlying all class claims and that can be proven at trial using
the same evidence. 	Messner, 669 F.3d at 815. 	That is enough to show
predominance for Rule 23(b)(3). 	See id. at 818.
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Rule 23(b)(3) also requires plaintiffs to show that a class action "is
superior to other available methods for fairly and efficiently adjudicating the
controversy." 	Santiago, 19 F.4th at 1016 (quoting Fed. R. Civ. P. 23(b)(3)).
DraftKings does not dispute this requirement. 	See Dkt 116 at 4–12; see Chi.
Teachers Union, Local No. 1 v. Bd. of Ed. of Chi., 797 F.3d 426, 436 (7th Cir.
2015) (finding it "certainly [ ] more efficient" to answer a single common
question "just one time rather than over and over again in multiple separate
lawsuits"). 	The superiority requirement is thus also satisfied.2
D. Appointment of Class Representatives & Class Counsel
After certifying a Rule 23 class, the court is required to appoint class
counsel to represent the class members. 	See Fed. R. Civ. P. 23(g)(1). 	In doing
so, the court must consider:
(i) the work counsel has done in identifying or investigating
potential claims in the action;
(ii) counsel's experience in handling class actions, other
complex litigation, and the types of claims asserted in the
action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing
the class.
Fed R. Civ. P. 23(g)(1)(A).
2 The Court therefore does not address Mr. McAfee's alternative argument that
DraftKings's opposition to class certification could be resolved with a concession that
the House Rules govern each class member's breach-of-contract claim. Dkt 117 at 6-
7.
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For the reasons explained above and based on the Court's finding of the
adequacy of the class representative and class counsel, the Court appoints
Matthew McAfee as class representative and Robert Duff as class counsel.
IV.
Conclusion
Mr. McAfee's amended motion for class certification is GRANTED and the
proposed class is certified. 	Dkt. [108]. 	The Court ORDERS the parties to meet
and confer, and by January 16, 2026 submit a joint report in this matter
setting forth a proposed plan for providing notice to the class. 	See Fed. R. Civ.
P. 23(c)(2)(B).
SO ORDERED.
Distribution:
All electronically registered counsel.
Date: 12/9/2025
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