Caleb Lin (CA Bar No.

316869)
WILMER CUTLER PICKERING HALE
AND DORR LLP
50 California Street
San Francisco, CA 94111
Telephone: (628) 235-1000
Facsimile: (628) 235-1001 FILED / ENDORSED
[email protected]
By Fax

David Gringer (pro hac vice forthcoming) JUN 30 2025

WILMER CUTLER PICKERING HALE
AND DORR LLP
7 World Trade Center By B. Prasad, Deputy Clerk
250 Greenwich Street
New York, NY 10007
Telephone: (212) 230-8800
Facsimile: (212) 230-8888
[email protected]
10
Michael H. Baer (pro hac vice forthcoming)*
WILMER CUTLER PICKERING HALE
11 AND DORR LLP
2100 Pennsylvania Avenue, NW
12 Washington, DC 20037
Telephone: (202) 663-6000
13 Facsimile: (202) 663-6363
[email protected]
14 * Not admitted to practice in the District of Columbia.
Supervised by attorneys who are members of the District
15 of Columbia Bar.

16 Attorneys for Petitioner

UNDERDOG SPORTS, LLC, d/b/a Underdog Fantasy
17
SUPERIOR COURT OF THE STATE OF CALIFORNIA
18
FOR THE COUNTY OF SACRAMENTO
19
UNDERDOG SPORTS, LLC, d/b/a Case No.
20 Underdog Fantasy,
MEMORANDUM OF POINTS AND
21 Petitioner, AUTHORITIES IN SUPPORT OF
MOTION FOR TEMPORARY
22 V. RESTRAINING ORDER /
PRELIMINARY INJUNCTION
23
ROB BONTA, in his official capacity as
Attorney General of California; and Judge: Hon.
24 CALIFORNIA DEPARTMENT OF Department:
JUSTICE,
25
Respondents.
26

27

28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 TABLE OF CONTENTS

L. INTRODUCTION.....uciiiiiiriseriesnnssaesesssnsssssessssssessssssessssessssessssssessssssesssssssssassssssssssssasens 1

MU, AUC TS o oconesiinsnmemmssmnnsoaossosssnssssssss

s 00sa S S A3 A S A SR A A SRS 544 S8 B a8 S a R R 2
AN

A. The Paid Fantasy Sports Industry and Underdog’s Fantasy Sports Contests...................... 2
W

B. The Request for an Attorney General OPinion ..............cooveveeeeieeeeeieeeeeeeeeeeeeeeeeeeeeeeeene 4

N

III. LEGAL STANDARD........ccccoiruirerreeereerenreraesseseesesnesessssassssnens ceeesnenees

9

.6
0

IV. ARGUMENT .....cccovtiiiirunenenennennessesssssssessessssessesessesesessesees ol

O

A. Underdog Is Likely to Succeed on the METItS .........ccccoveviveuieiieiiiieieieicieeeeeeeeeeeeee

e 8
10
11 1. The Decision to Accept a Request for, and to Imminently Issue, an Opinion on the
Legality of “Daily Fantasy” Sports Violates the Attorney General’s Duty to Adhere to the
12 Clear Limits of Section 12519 ..ottt 9
13
2. Underdog has standing, as matter of both beneficial interest and public interest test, to
14 BIING the WITt PELILION......cviitieiieieeieccecceeeeeeeee
ettt ettt et seeseaeene 19

15 3. Underdog’s claims are ripe for consideration by this Court. ...........ccccccvevvververirvenenene. 21

16 B. The Balance of Harms Favors Underdog.............cc.ceeeveuieieuciereieeceeeeeeeeeeeeee
s 22
17
1. Underdog Will Suffer Inminent and Irreparable Harm Without an Injunction............ 22
18
2. Respondents Will Not Suffer Harm from an Injunction..............c.ccooevevevevecvenceennnnee. 24
19
20 V. CONCLUSION ....uuiiiiirinnncisnisesnissensasessssssssssssssssssssssssssssssssessssssssssssssssssesssssessssssssssses 26

21
22
23
24
25
26
27
28 .-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 TABLE OF AUTHORITIES

Page(s)

Cases

Bell Gardens Bicycle Club v. Department of Justice (1995)

36 CALAPP AN T1T cuicrmmsmsms imssssmnonessan tasssimenonsgmonessuavenssssasmomsosmmbmsmss
gravssn sy s e s 14, 15

| Bull Field, LLC v. Merced Irrigation Dist. (2022)

85 Cal.App.5th 442 [301 Cal.RPtr.3d 622].....cucueuiieieeeierereeieeieeeeeeeeeee e 18,19

Carsten v. Psychology Examining Com. (1980)

27 Cal.3d 793 [166 Cal.RPIr. 844 ]......c.oviieiiereeieereeete ettt 19

Church of Christ in Hollywood v. Superior Ct. (2002)

10 99 Cal.App.4th 1244 [121 Cal.Rptr. 2d 810]....ceeveverererereeeiieieeieeeeeeeeeeeeeee e, 7,22

11 People ex rel. City of Com. v. Argumedo (2018)

28 Cal.App.5th 274 [239 Cal. Rptr. 3d 128]....cuevevieiereeieieeeeeeeeeeeeeeeee e 10, 12
12
Communities for a Better Env'’t v. State Energy Res. Conservation & Dev. Com.
13 (2017)
19 Cal.App.5th 725 [227 Cal.RPtr.3d 486]......ceeveuirrereeiieeeeeieeeeeee et 21
14
15 Crestwood Behav. Health, Inc. v. Baass (2023)
91 Cal.App.5th 1 [308 Cal.Rptr.3d 15], rehearing denied...........cccoovevereurivirnciererereeeicienee, 8,9
16
Dew-Becker v. Wu (2022)
17 2020 IL 124472 [178 N.E.3d 1034 ]...cueieieeeieieeieieeeeteeeteee et 3,15, 16

18 Doe v. Albany Unified Sch. Dist. (2010)

190 Cal.App.4th 668 [118 Cal.Rptr.3d 507]...c.ccvevieriieriieieteieeeeteeeeeeeeeetee e 19
19
First Indus. Loan Co. of Cal. v. Daugherty (1945)
20
26 820 5AS scsmsnamnnuwsssucsnsn. o mmssan sossiois s ssnsissnsisiionssmmabasnsnasnsgmenssntmnsnsansassmmsasavs
smssems s vess spmmsase sy 9
21
Heckmann v. Ahmanson (1985)
22 168 Cal.App.3d 119 [214 Cal.RPUE. 177]eevieieieeieeeeeeeeeeeee et 7

23 Kavanaugh v. West Sonoma County Union High School Dist. (2003)

29 Cal.4th 911 [129 Cal.RPr.2d 811 ]..ecioiiieiieiiieieteeeeeeeetee ettt 9
24
Landmark Holding Grp., Inc. v. Superior Ct. (1987)
25 193 Cal.App.2d 525 [238 Cal.RPI. 475]..c.couiieieiieieieieeeetete et 7
26
Lockyer v. City & Cnty. of San Francisco (2004)
27 55:'Cal Al 1US5: [ 17 Cal BB 205 |- ssmvmesn e commonsnnsnmns 5 e s i s ot & i 9

28 -ii-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 Loeber v. Lakeside Joint Sch. Dist. (2024)
103 Cal.App.5th 552 [323 Cal.Rptr.3d 18], review denied ............c.coeveveveeemeeeeeeeeennn. 8,19

Marine Forests Soc'y v. California Coastal Com. (2005)

36 Calidth T ..ottt ettt eeene 12
NN

Morris v. Williams (1967)

67 1CA1.20 T3B civsiss w3 sussssnsssosamsneansssnsnsssonensonsrssssmyasssgoms
s yses ooy SAEARFAR SN RN RS ES A AAAS 18
W

Nat. Audubon Society v. Superior Court (1983)

O

33 Cal.3d 419 [189 Cal.RPII. 346]....ccuicuieieeieeiieeeeeeeeeeeeeee et 22

9

O.W.L. Found. v. City of Rohnert Park (2008)

00

168 Cal.App.4th 568 [86 Cal.RPI.3d 1]....ccviviieeiieeieiieeceeeeeeeeeeeeee e 21

People for Ethical Operation of Prosecutors etc. v. Spitzer (2020)

O

10 53 Cal.App.5th 391 [267 Cal. RPIr. S85]...ueviuiieeiiieeieeceeeeeeeee et 18

11 People v. Boyd (1979)

24 Cal.3d 285 ...tttettt ettt enne 17
12
People v. Settles (1938)
13 29 CalLAPDP.2d SUPP. 781 ..ottt
ettt ettt ens 14
14 People v. Uber Techs., Inc. (2020)
15 56 Cal.App.5th 266, [270 Cal. Rptr. 3d 290, 304], as modified on denial of
rehearing NOV. 20, 2020.........couiiieiieeieeeeeeee
ettt et e et e e e et e e e e e eee e e eereesneesreeeaees 6,24
16
Robbins v. Superior Ct. (1985)
17 I8 CHLB 109 iussermssssimsnmonimesnssnismsmn
5u5s tommisioms wmmesmmmmsmsmssamnmesssansssasss sommmmm S - 7

18 Rodriguez v. Robbins (9th Cir. 2013)

TISE.3A T127 ittt et b et s et a e s enea 26
19
Save the Plastic Bag Coal. v. City of Manhattan Beach (2011)
20
52 CalAth 155 ...ttt 19, 20
21
Schwartz v. Poizner (2010)
22 187 Cal.App.4th 592 [113 Cal.Rptr.3d 610]....c.ceoveurieeeeiieieieietceeeeee e 18

23 Water Replenishment Dist. of S. California v. City of Cerritos (2012)

202 Cal.App.4th 1063 [135 Cal.RPtr.3d 895]....ceieuiiieiiieieiietereeteee et 25
24
Weatherford v. City of San Rafael (2017)
25
2 CalSth 1241 ..ottt ettt ettt et e eaeean 20
26
White v. Cuomo (2022)
27 38 N.Y.3d 209 [192 N.E.3d 300]....ccuiiieiiririeieieieeieieieeteieteeteete et 3,15

28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 Statutes, Rules, & Regulations

BT ULSICLE 53062 ..ttte ettt ee e 13

California Government Code § 12519 .......ccooiiiuimiiiieieeeeeeeeeeeeeee e passim

California Rules of Court, RUIE 3.1202(C) . ...cvivevoo

uieeeeeee
oo ees oo
eeeeee 6,22

N.Y. Racing, Pari-Mutuel Wagering & Breeding Law §§ 1400 et seq. (2024)........ccooveveeueeenn... 13
O

Other Authorities
9

109 Ops.Cal. Atty.Gen. 2 (1980) ......c.cueuiuriiiririeirieieieieeeteeete et ee e 12

0

218 Ops.Cal.Atty.Gen. 5 (1981) ..evviiiiieieeeeeeeeeeeeeee e ee e 13

O

Behe, Fantasy sports leagues put armchair quarterbacks in the game, TribLIVE
10 (Dec. 14, 2002),
11 https://web.archive.org/web/20210709182225/https://archive.triblive.com/new
s/fantasy-sports-leagues-put-armchair-quarterbacks-in-the-game...............ooeveuereeeereennnnn. 25
12
California Attorney General, Legal Opinions of the Attorney General - Frequently
13 Asked Questions, https://0ag.ca.goV/OPINIONS/TAGS ..........cvveeeeieeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeenes 10

14 California Attorney General, Legal Opinions of the Attorney General-Monthly

Opinion Report, https://oag.ca.gov/opinions/monthly-report.............ccceeeeuereeeeereeeeeennns 5,17
15
Fantasy sports companies to comply with Attorney General and cease operations
16 in Alabama (Apr. 29, 2016) ABC 33/40,
17 https://abc3340.com/news/local/fantasy-sports-companies-to-comply-with-
attornery-general-and-cease-operations-in-alabama.) ...............cccooveeveeveieieeeereeeeeeeeeeeeenens 24
18
Fantasy Sports & Gaming Association, Industry Demographics,
19 https://thefsga.org/industry-demographics/ ........................ S ———————— 4
20 Levin, Letter to Attorney General Kamala Harris (Nov. 2, 2015),
https://www.legalsportsreport.com/wp-content/uploads/2015/11/AG-Letter-
21
NOV-ZPAL. .....coorirrtiriicniieeniieerssessissivsnressssssnserssaressssssnsasssssssasssssss sressssssssmsbssssssssnnsssnsosssassess 4
22
Purdum, FanDuel to cease paid contests in Texas in May; DrafiKings files suit
23 (Mar. 4, 2016) ESPN, https://www.espn.com/sports-
betting/story/_/id/14903788/fanduel-texas-attorney-general-reach-settlement-
24 CeaSE-PaAId-0PEIatiONS-StALE-1......cceeieuiriieiictiieeieeeetete ettt eeene 24
25 Thomas-Akoo, Source says all paid fantasy sports to be banned in California, .io
26 (June 26, 2025), https://next.io/news/regulation/source-says-all-paid-fantasy-
SPOItS-banNed-CalifOrNIa/ ........c.ooviiuieeiieieiiececceece ettt ettt ee 4
27
28 -iv -

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 Wilk, A Heartfelt 'Thank You' to the SCV (2024) The Signal,
https://signalscv.com/2024/1 1/scott-wilk-a-heartfelt-thank-you-to-the-scvi.......................

Zavala, Online fantasy sports platforms may soon be illegal in California (June
25, 2025) KCRA3, https://www.kcra.com/article/online-fantasy-sports-
platforms-california/65196468 ............cooveeieiiiiriieeeeeeeeeeee e
N
9
o
O

10
11
12
13
14
15
16
17
18
19
20
21
plp)
23
24
25
26
27
28 -V -

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 L. INTRODUCTION

Absent relief from this Court, Attorney General Rob Bonta will issue an opinion later this

week that will decimate fantasy sports in California. Attorney General Bonta should be enjoined

from doing so, not because he is wrong in his views on the legality of fantasy sports—though he

certainly is—but because by statute, the Attorney General can only issue opinions on questions
@)\

of law and can only answer questions that relate to the duties of the official requesting the
Nol-
S

opinion. Neither is true here. Thus, Attorney General Bonta lacks authority to issue the opinion

and should be enjoined from doing so.

10 Over several decades, fantasy sports have become an integral part of American sports
11
culture, enjoyed by over 60 million people in the U.S. and Canada annually. Californians are no
12
different, with millions taking up an activity that allows everyone from die-hard sports fans to
13
casual observers to compete by managing fantasy teams of their choosing. Due to its popularity
14
15 in the State, hundreds of fantasy sports-related businesses operate openly and lawfully in

16 California. Petitioner (“Underdog™) operates one of the most popular fantasy sports platforms

17 and counts more than half a million Californians as customers. But within a matter of days—and
18 no later than Thursday, July 3, 2025—Respondent Rob Bonta, the Attorney General of
19
California, will issue an opinion that seeks to cripple this thriving industry and deprive
20
Californians of an activity that they enjoy. With the stroke of a pen the Attorney General will
21
adversely affect billions of dollars in commerce and label Underdog (and many others) as
22
23 breaking the law.

24 The Attorney General lacks the authority to issue that opinion. California Government

25 Code § 12519 sets limits on the Attorney General’s authority to accept, and issue, requested legal
26 opinions. The Attorney General may only answer pure legal questions (“any question of law”)
27
that “relat[e]” to the office of the requesting official. (Gov. Code § 12519.) As the Attorney
28 -1-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 General himself has recognized, these conditions are not mere suggestions; they are “textual

limitations on [his] responsibility to issue opinions.” (Declaration of David Gringer in Support

of TRO Application (“Gringer TRO Decl.”), Ex. 3 at 2 (“Attorney General Opinions

Guidelines”).) But they are limits he has disregarded here.

The forthcoming opinion responds to a 2023 request that asks the Attorney General to

decide “whether California law prohibits the offering and operation of daily fantasy sports

betting platforms.” That is not a pure question of law; it is a request for the Attorney General to

apply California gambling law to the facts and circumstances of a particular industry—a

10
quintessentially mixed question of law and fact. Nor does the request “relat[e]” to the office of
11
the requester: The request does not inquire about the legality of any legislative functions or
12
responsibilities, but rather asks the State’s chief law enforcement official to take a position on the
13
legality of conduct that he is responsible for policing. In other words, the request seeks a pre-
14

15 enforcement shot across the bow—a flexing of executive branch muscle in a way that is designed

16 to impair the businesses of Underdog and others in the fantasy sports industry.

17 Without this Court’s immediate intervention, this unlawful gambit may succeed.
18
Underdog faces imminent irreparable harm—from fleeing customers, risk-averse banks and
19
payment processors, and the loss of investment and goodwill—if the Attorney General issues the
20
opinion as planned. Because Underdog received only days’ notice of the legal tidal wave that
21
will arrive by Thursday, it timely seeks an ex parte temporary restraining order (TRO) to
22

23 preserve the status quo that has persisted in California for decades.

24 IL FACTS

25 A. The Paid Fantasy Sports Industry and Underdog’s Fantasy Sports Contests
26
Underdog offers a platform for millions of customers in the United States and Canada to
27
compete in fantasy sports. Declaration of Dustin Cooper § 8. By accessing Underdog’s website
28 .

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 and mobile phone application, Underdog Fantasy customers can use their skill and sports

knowledge to compete in a wide range of daily, weekly, tournament-long, and season-long

fantasy contests. (Cooper Decl. 9 6-9.) Participants draft virtual rosters of athletes from
AN

multiple teams with the goal of scoring the highest number of points from the collective
D

performance of their drafted athletes. In some formats of fantasy contests, participants manage
N

their virtual rosters over time, selecting which players to start and which players to bench, and
N

trading players expected to underperform based on developing information and strategies. In

other formats, the significance of skillfully drafting the best team at the onset is greater, as
10 participants are more limited in the mid-season moves that they can make. (Gringer TRO Decl.,
11
Ex. 2 (“Underdog Website Rules”).) The potential point values earned for the success of drafted
12
players vary across different contests, requiring successful participants in each contest to develop
13
advanced fluency with its rules.
14
15 Regardless of the format of the contest, participants rely upon their analytical skills and

16 their particularized understanding of the athletes, their teams, and other factors like anticipated

17 matchups to increase their chances of winning. The predominant role of skill in fantasy sports
18 contests has been demonstrated by numerous statistical and economic experts and courts.
19
Underdog has operated in California since 2020, and the state accounts for more than
20
10% of the Company’s annual revenue. (Cooper Decl. § 16.) Underdog Fantasy is part of a
21
well-established digital fantasy sports industry that serves at least 60 million participants every
22
23 year across the United States and Canada. Fantasy contests are a major part of the broader sports

24 industry, as evidenced by the prevalence of partnerships between major professional sports

25
26
27 ! See Dew-Be.cker v. Wu (2022) 2020 IL 124472, 926 [178 N.E.3d 1034, 1040]; White v. Cuomo
(2022) 38 N.Y.3d 209, 223 [192 N.E.3d 300, 313].
28 -3-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 leagues and fantasy sports platforms and by the proliferation of dedicated weekly fantasy

television programming produced by major sports networks like ESPN (The Fantasy Show) and

NFL Network (NFL Fantasy Live). The Fantasy Sports & Gaming Association estimates that

approximately 19% of adult Americans participate in fantasy sports. (Fantasy Sports & Gaming

Association, Industry Demographics, https://thefsga.org/industry-demographics/.)

N
N

B. The Request for an Attorney General Opinion

Under Government Code Section 12519, the Attorney General is permitted to issue a
(e <]

written opinion upon request from certain public officials, including Members of the Legislature,

10 “upon any question of law relating to [that official’s] respective office[].” (Gov. Code § 12519.)
11
On November 2, 2015, California Assemblymember Marc Levine asked then-Attorney General
12
Kamala Harris to issue an opinion regarding the legality of daily fantasy sports?; however,
13
neither she nor her successor Xavier Becerra issued such an opinion.3 On October 5, 2023, then-
14

I3 Senator Scott Wilk submitted a request to the California Attorney General’s Office to provide a

16 “legal opinion as to whether California law prohibits the offering and operation of daily fantasy

17 sports betting platforms with players physically located within the State of California, regardless
18
of whether the operators and associated technology are located within or outside of the State.”
19
(Gringer TRO Decl., Ex. 1 (“Opinion Request”).)
20

21

22

23
% (Levin, Letter to Attorney General Kamala Harris (Nov. 2, 2015),
24

25 https://www.legalsportsreport.com/wp-content/uploads/2015/11/AG-Letter-Nov-2.pdf.)

26 3 (Thomas-Akoo, Source says all paid fantasy sports to be banned in California, .io (June 26,

27 2025), https://next.io/news/regulation/source-says-all-paid-fantasy-sports-banned-california/.)
28 -4 -

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 Attorney General Bonta accepted then-Senator Wilk’s opinion request, and it is currently

listed as “pending” on his office’s website as Opinion No. 23-1001. (California Attorney

General, Legal Opinions of the Attorney General-Monthly Opinion Report,

https://oag.ca.gov/opinions/monthly-report.) Subsequently, the Attorney General’s office

received submissions from representatives of the daily fantasy sports industry that addressed

various types of fantasy sports contests. (See Pet. § 53.) The Attorney General has also met with

market participants and collected other facts regarding the operation of fantasy sports contests.

See id. Indeed, representatives of the Department of Justice have told stakeholders that these

10 submissions have been “helpful” in developing the Attorney General’s understanding of the
11
underlying facts as a necessary component in answering the question presented. (See Pet. q 54.)
12
Senator Wilk left the state Legislature at the end of 2024, due to term limits. (See Wilk,
13
A Heartfelt ‘Thank You’ to the SCV (2024) The Signal, https://signalscv.com/2024/11/scott-wilk-
14
15 a-heartfelt-thank-you-to-the-scv/). The Attorney General did not issue an opinion responding to

16 Senator Wilk’s request before his departure.

17 Within the last few business days, however, it has become clear that Opinion No. 23-
18 1001, which has been “pending” for more than 18 months, is about to be issued. There is public
19
reporting that the Attorney General “is soon expected to deem all online fantasy sports platforms
20
illegal in the state,” and that the opinion explaining the reasoning behind this decision will be
21
released “[w]ithin a matter of days.” (Zavala, Online fantasy sports platforms may soon be
22
23 illegal in California (June 25, 2025) KCRA3, https://www.kecra.com/article/online-fantasy-

24 sports-platforms-california/65196468 [noting that the opinion is expected to be released “by July

25 3rd”].)
26
Underdog subsequently confirmed, through a conversation between the Attorney
27
General’s office and Underdog’s counsel, that the opinion is indeed about to be released this
28 -5-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 week. (Gringer TRO Decl. § 3.) Moreover, the opinion will be “very broad” in its applicability,

finding all daily fantasy sports to be illegal under California law. Id. Although “daily fantasy

sports” is not itself a defined term, (see infra 14), any opinion prohibiting all daily fantasy sports

would purport to encompass a significant portion of Underdog’s fantasy contests. And that is the

plan. The Attorney General’s office confirmed that after releasing the opinion, the goal would

be to use the threat of an enforcement action—under the interpretation of California law that the

Attorney General will impermissibly announce in the opinion—to pressure Underdog into

agreeing to leave California entirely. (Gringer TRO Decl. §4) The Attorney General’s office is

10 looking to Texas Attorney General Ken Paxton, whose release of a legal opinion on fantasy
11
sports led to a company pulling its paid fantasy sports products from the state nearly a decade
12
ago, as its model. (/bid.) Upon learning that it would be irreparably injured by the issuance of
13
the opinion, Underdog took immediate action, filing this lawsuit within two business days.
14

15 III. LEGAL STANDARD

16 A temporary restraining order preserves the status quo “until a final determination of the

17 merits of the action.” (People v. Uber Techs., Inc. (2020) 56 Cal.App.5th 266, [270 Cal. Rptr. 3d
18
290, 304], as modified on denial of rehearing Nov. 20, 2020 [quoting Continental Baking Co. v.
19
Karz (1968) 68 Cal.2d 512, 528].). To proceed on an ex parte basis, a petitioner must “make an
20
affirmative factual showing in a declaration containing competent testimony based on personal
21
knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief
22

23 ex parte.” (Cal. Rules of Court, rule 3.1202(c).). “The ex parte hearing concerning a TRO is no

24 more than a review of the conflicting contentions to determine whether there is a sufficiency of

23 evidence to support the issuance of an interlocutory order to keep the subject of litigation in
26
status quo pending a full hearing to determine whether the applicant is entitled to a preliminary
27

28 -6-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 injunction.” (Landmark Holding Grp., Inc. v. Superior Ct. (1987) 193 Cal.App.2d 525, 528 [238

Cal.Rptr. 475, 476].).

“[T]rial courts should evaluate two interrelated factors when deciding whether or not to

issue [a restraining order]. The first is the likelihood that the plaintiff will prevail on the merits

at trial. The second is the interim harm that the plaintiff is likely to sustain if the [restraining

order] were denied as compared to the harm that the defendant is likely to suffer if the [order]

were issued.” (Church of Christ in Hollywood v. Superior Ct. (2002) 99 Cal.App.4th 1244, 1251

[121 Cal.Rptr. 2d 810, 815], alteration in original.)

10 A moving party needs to demonstrate that “there a reasonable probability [it] will prevail
11
on the merits.” (Heckmann v. Ahmanson (1985) 168 Cal.App.3d 119, 125 [214 Cal.Rptr. 177,
12
181].) While the trial court has discretion as whether “to grant or deny a request for a
13
preliminary injunction, it ... must exercise its discretion ‘in favor of the party most likely to be
14
15 injured.”” (Robbins v. Superior Ct. (1985) 38 Cal.3d 199, 205.) In other words, “[i]f the denial

16 of an injunction would result in great harm to the plaintiff, and the defendants would suffer little

17 harm if it were granted, then it is an abuse of discretion to fail to grant the preliminary
18 injunction.” (/bid.)
19
IV. ARGUMENT
20
Underdog is likely to succeed on the merits of its petition for writ of mandate because
21
Respondents’ decision to accept an opinion request on the legality of daily fantasy sports and to
22
23 issue the forthcoming opinion violates the clear limits of Section 12519 of the California

24 Government Code. The Attorney General has a ministerial duty to decline an opinion request

25 outside the scope of its statutory authority, and even if he had discretion in carrying out that duty,
26 he has abused it here. Moreover, Underdog has standing—under both a beneficial interest and
o7
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 public interest theory—to seek a writ of mandate, and its claims are ripe for consideration by this

Court, in light of the imminent and irreparable injury Underdog faces.

)
N
S

Additionally, the balance of harms overwhelmingly favors Underdog’s requested

EE

injunctive relief. Underdog is facing an existential threat to its continued operations in

W

California if Respondents issue the opinion, but Respondents will suffer no cognizable harm if
O

this Court preserves the status quo by requiring Respondents to adhere to the limits of their
3

statutory authority during the pendency of this petition.

&0

A. Underdog Is Likely to Succeed on the Merits

O

10 Relief under a writ of mandate is available “in two circumstances”: “mandamus may
11
issue to compel the performance of a ministerial duty or to correct an abuse of discretion.”
12
(Crestwood Behav. Health, Inc. v. Baass (2023) 91 Cal.App.5th 1, 15 [308 Cal.Rptr.3d 15, 24],
13
rehearing denied May 23, 2023)
14
15 To obtain relief under a writ of mandate for the first circumstance, a petitioner must

16 demonstrate “(1) no plain, speedy, and adequate alternative remedy exists [citation]; (2) a clear,

17 present, ... ministerial duty on the part of the respondent; and (3) a correlative clear, present and
18 beneficial right in the petitioner to the performance of that duty.” (Loeber v. Lakeside Joint Sch.
19
Dist. (2024) 103 Cal.App.5th 552, 567 [323 Cal.Rptr.3d 18, 30], review denied Sept. 11, 2024.)
20
The first of these requirements is the simplest here: Underdog has no alternative remedy
21
to ensure the Attorney General adheres to the limits of his authority under Section 12519 because
22
23 a writ of mandate is the only tool that can compel compliance with those limits and thereby

24 prevent the Attorney General from issuing Opinion No. 23-1001. And for the reasons discussed

25 below, Underdog has plainly made the required showing with respect to the second and third
26 requirements. Moreover, in light of the risk of imminent harm to Underdog, the issues raised in
%7
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 its petition are ripe—indeed, any delay in considering would result in Underdog losing its ability

to obtain meaningful relief in stopping the opinion from being issued.

For the second circumstance, when a court reviews a public official’s decision for an

abuse of discretion, “the court may not substitute its judgment for that of the public [official’s].”

Instead, “the judicial inquiry ... addresses whether the public entity's action was arbitrary,

capricious or entirely without evidentiary support, and whether it failed to conform to procedures

required by law.” (Crestwood Behav. Health, Inc. v. Baass, supra, 91 Cal.App.5th 1, 16.) This

second circumstance is alternatively met because the Attorney General’s failure to comply with
10 the limits prescribed in Section 12519 is an abuse of discretion.
11
1. The Decision to Accept a Request for, and to Imminently Issue, an Opinion
12 on the Legality of “Daily Fantasy” Sports Violates the Attorney General'’s
Duty to Adhere to the Clear Limits of Section 12519.
13
a. Respondents have a ministerial duty to comply with the limitations
14 of Section 12519.
15 A ministerial duty “is an act that a public officer is required to perform in a prescribed
16
manner in obedience to the mandate of legal duty and without regard to his own judgment or
17
opinion concerning such act’s propriety or impropriety, when a given state of facts exists.”
18
(Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 [129
19
20 Cal.Rptr.2d 811, 814].) Officials required by statute to carry out a legal responsibility have a

71 ministerial duty to perform it according to the express statutory terms. (Lockyer v. City & Cnty.

22 of San Francisco (2004) 33 Cal.4th 1055, 1069 [17 Cal Rptr.3d 225, 231] [finding local officials
23 “exceeded their authority by taking official action in violation of applicable statutory provisions”
24
and issuing a writ of mandate as the remedy]; see First Indus. Loan Co. of Cal. v. Daugherty
25
(1945) 26 Cal.2d 545, 550 [“A ministerial officer may not ... vary or enlarge the terms of a
26
legislative enactment or compel that to be done which lies without the scope of the statute and
27
28 -9.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 which cannot be said to be reasonably necessary or appropriate to subserving or promoting the

interests and purposes of the statute.”].)

The California Attorney General has a ministerial duty to issue legal opinions only under

the conditions set forth in California Government Code § 12519. Section 12519 provides that:

“The Attorney General shall give the Attorney General’s opinion in writing to any Member of
O

the Legislature, the Governor, [or certain other officials] when requested, upon any question of
9

law relating to their respective offices.” (Gov. Code § 12519, emphasis added.) The Attorney
o0

General concedes that these terms indeed constrain his authority, writing in publicly available
O

10 guidelines that “[t]he Government Code imposes certain textual limitations on the Attorney
11
General’s responsibility to issue opinions under section 12519.” (Attorney General Opinions
12
Guidelines at 2.)
13
Three textual limits are relevant here. First, a legal opinion issued by the Attorney
14
15 General must address only “question[s] of law.” (Gov. Code § 12519.) The Attorney General

16 has confirmed that he will not accept any requests for opinions “that require factual

17 investigations or that would require the resolution of a factual dispute.” (California Attorney
18 General, Legal Opinions of the Attorney General - Frequently Asked Questions,
19
https://oag.ca.gov/opinions/fags (“OAG Legal Opinions FAQ™).) Accordingly, an opinion
20
request that poses a mixed question of law and fact is beyond the appropriate scope of Attorney
21
General opinions because mixed questions require factual investigations to permit “the
2
23 application of the rule to the facts and [the] consequent determination whether the rule is

24 satisfied.” (People ex rel. City of Com. v. Argumedo (2018) 28 Cal.App.5th 274, 280 [239 Cal.

25 Rptr. 3d 128, 133].) Second, the Attorney General “shall give [his] opinion in writing fo any
26 Member of the Legislature” who has “requested” the opinion. (Gov. Code § 12519, emphasis
37
added; see also Attorney General Opinions Guidelines, supra, at 1, emphasis added [“Section
28 -10 -

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 12519 directs the Attorney General to provide opinions only fo the public officials and agencies

listed in the statute, and not to private individuals[.]”]). Third, under Section 12519, the

Attorney General may not accept a request for an opinion when the request is not “relat[ed] to

the [requesting official’s] office[].” (Gov. Code § 12519; see also OAG Legal Opinions FAQ,

supra [“When it is apparent that there is no connection [to the requesting official’s office], the
N

request will be declined.”].)

9

These limits matter. The Attorney General is the State’s chief law enforcement official,
0

[Cal. Const. art. V, §13], and so his authoritative statements about the meaning of California
O

10
law—when contained in formal, but technically nonbinding, opinions—can have meaningful
11
ramifications. This can be true in court, but the opinions can be even more influential outside of
12
court, as they provide authoritative-seeming statements about what the law does, or does not,
13
require. (Cf. Pet. § 59 [recounting how a digital fantasy sports company was forced out of Texas
14

15 following the release of an attorney general opinion].)

16 It is therefore essential that the Attorney General not exceed his authority to accept

17 opinion requests that pose only a “question of law.” This limit ensures that the Attorney General
18
does not prejudge the outcome of any fact-dependent dispute in a setting devoid of procedural
19
protections. And it prevents the Attorney General from branding particular conduct illegal
20
without having the facts and process necessary to make that determination.
21
Similarly, requiring the Attorney General to only give opinions “to” a particular public
22

23 official, and insisting that the public official’s request “relat[e] to their respective office[],”

24 (Gov. Code § 12519) ensures that the Attorney General does not needlessly set down new legal

25 markers. Instead, the Attorney General will set out his legal views only when a need arises in
26
relation to the demands of a particular state official’s duties, not whenever a member of the
27
public might prefer one. In the context of requests from Members of the Legislature, this limit
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 preserves the separation of powers by preventing legislators from using an opinion request about

a purely executive function to dictate the State’s use of executive branch resources. (See Cal.

Const. art. III, § 3.) The Legislature violates this doctrine if it “intrudes upon what might be

characterized as the ‘core zone’ of the executive functions of the Governor (or another

constitutionally prescribed executive officer),” such as the Executive’s enforcement power.

(Marine Forests Soc'y v. California Coastal Com. (2005) 36 Cal.4th 1, 15.)

b. Respondents have failed to comply with their ministerial duty.

Notwithstanding the limits on his authority, the Attorney General accepted a 2023 request

10 for an opinion submitted by then-Senator Scott Wilk that asks the Attorney General to decide
11
whether particular conduct violates California’s gambling laws. As relevant here, the request
12
asks for a “legal opinion as to whether California law prohibits the offering and operation of
13
daily fantasy sports betting platforms[.]” (Opinion Request.) The decision to accept that
14
15 request, and to publish the forthcoming opinion, violates the Attorney General’s ministerial

16 duties under Section 12519 twice over.

17 To start, the opinion request does not pose a question of law. (See People ex rel. City of
18 Com. v. Argumedo, supra, 28 Cal.App.5th 274, 280 [contrasting legal questions with mixed
19
questions of fact and law].) Instead, it asks about the application of “California law” to specific
20
conduct—*“the offering and operation of daily fantasy sports betting platforms.” (Opinion
21
Request). For the reasons outlined below, answering this question requires both a factual
22
23 assessment of the characteristics of different fantasy sports contests and an empirical

24 examination of whether skill or chance predominates across each type of contest—neither of

25 which is permissible for an Attorney General opinion. (See, e.g., 109 Ops.Cal.Atty.Gen. 2
26 (1980) [“The second question necessarily involves questions of fact, thus we are unable to
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 provide a categorical answer”]; 218 Ops.Cal.Atty.Gen. 5 (1981) [noting the impropriety of

opining when presented with sharply contrasting characterization of facts].)

The request falters out of the gates because it asks the Attorney General to express his
B

views about the legality of a category of products—*“daily fantasy sports betting platforms”—
v

that does not have a consensus factual, much less legal, definition.* There is no agreed upon set
N

of contests that fall under the umbrella of “daily fantasy sports.” (Cooper Decl. § 11) And that
N

is in part because the rules and terms of different fantasy contests vary widely. Some contests

require ongoing management of the participant’s roster over the length of a season, whereas
10 others restrict the changes a participant might make to the roster after the initial drafting,
11
necessitating greater upfront research and time investment in creating the initial roster. (Id. { 8;
12
Underdog Website Rules.). The contests vary in prize structures, formats, number of
13
participants, scoring criteria, and sports. (Id.) The calculation of which players to draft in a
14
15 season-long or tournament-format contest will vary wildly from the strategic calculations that go

16 into a short-duration contest. Even within similar sports and formats, the rules for scoring

17 different contests may vary. For example, in one baseball contest, a pitcher’s win might be
18 worth 5 points and each strikeout is worth 3; in another, wins are not a factor but WHIP (a metric
19
that assesses a pitcher’s walks + hits per inning pitched) and XERA (a pitcher’s expected earned
20
run average) are. Like a professional sports team’s general manager, a skilled participant must
21
22
23
24 4 The most commonly used definition of “fantasy ... sports games” appears in federal law, and it
is mirrored in various state statutes that repurposed that definition. (31 U.S.C.§ 5362.) But those
25
definitions have no “daily” component. New York for example, uses the term “interactive
26 fantasy sports” because the duration of the contest is immaterial under that state’s laws. (See
N.Y. Racing, Pari-Mutuel Wagering & Breeding Law §§ 1400 e seq. (2024).) In any event, by
27 labeling these products “betting platforms,” the request at issue here also attempts to prejudge
the Attorney General’s answer.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 weigh the strengths and weaknesses of multiple players and teams to craft the strongest roster

under the specific contest rules. (Cooper Decl. ] 8-9; Underdog Website Rules.)

The question under consideration for Opinion No. 23-1001, whether “daily fantasy

sports” platforms are prohibited, necessarily elides the distinctions between the different kinds of

contests that have been labeled “daily fantasy sports.” Accordingly, to even attempt to answer
O

the question then-Senator Wilk posed, the Attorney General must engage in the kind of factual
9

inquiry that Section 12519 prohibits. And given the more than 18 months it has taken to answer
0

the question, it is obvious that such a factual inquiry has, in fact, taken place.
o

10
Opining on the legality of the daily fantasy sports industry requires a further factual
11
inquiry: an examination of the relative role of skill versus chance across the many different kinds
12
of contests that companies like Underdog offer. (See, e.g., People v. Settles (1938) 29
13
Cal.App.2d Supp. 781, 787 [holding that, in California, the primary test of whether a game
14

15 requiring payment for participation constitutes an illegal lottery is whether “chance or skill ... is

16 dominant in determining the result.”].). Indeed, Senator Wilk highlighted California’s

17 prohibition on operating an unlicensed “game of chance” in framing his question for the
18
Attorney General. (Opinion Request.)
19
The skill versus chance inquiry is a familiar one. Courts regularly engage in detailed
20
factfinding—including by relying on evidence from statistical experts and from participants in
21
the contest or game—to determine whether skill predominates over chance for a given game or
22

23 contest. For example, in Bell Gardens Bicycle Club v. Department of Justice (1995) 36

24 Cal.App.4th 717, the court relied on extensive expert testimony in the record, including from a

25 professional poker player and a statistics professor from U.C. Berkeley, to determine whether a
26
form of poker called “jackpot poker” was a game of skill or an “illegal lottery.” (/d. at 752,
27

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 756.) Considering this testimony, the court rejected the conclusion “that poker participants win

the jackpot prize through skill and not by chance.” (Id. at 753.)

Similarly, when questions like the one presented by Opinion No. 23-1001 have arisen in

other states, courts have carefully weighed the factual evidence about whether the most

successful digital fantasy sports players rely on skill or luck to succeed. In White v. Cuomo,

supra, the Court of Appeals of New York emphasized that “the legislature’s factual

determination that [interactive fantasy sport] contests are a game of ‘skill,” not of ‘chance’... —

and therefore are not ‘gambling’ — has resounding support.” (38 N.Y.3d 209, 223, emphasis
10
added). The court also cited “[s]tudies show[ing] that skilled players achieve significantly more
11
success in IFS [interactive fantasy sport] contests and that rosters of skilled human players were
12
more successful in IFS contests than randomly generated lineups over 80% of the time.” (/bid.)
13
The White court also relied on an expert opinion arguing that “IFS games ‘have an inherent and
14

IS5 vast character of skill where chance is overwhelmingly immaterial in the probability of winning’

16 and winning a prize in such contests ‘strongly depends more on skill than on chance.’ In fact, it

17 is now ‘widely recognized’ that IFS contests are predominately skill-based competitions.” (/d. at
18
224))
19
The Illinois Supreme Court engaged in a similar inquiry. In a case about whether daily
20
fantasy sports platforms are illegal, the court explained that the central question it had to answer
21
was “whether head-to-head DFS contests are predominately determined by the skill of the
22

23 participants in using their knowledge of statistics and the relevant sport to select a fantasy team

24 that will outperform the opponent. Several recent, peer-reviewed studies have established that

25 they are.” (Dew-Becker v. Wu, supra, 2020 IL 124472, 9 26.) The Wu court cited those peer-
26
reviewed studies and articles in support of its factual determination that 1319
“‘skill is always the
27
dominant factor’ in head-to-head DFS contests involving NBA games.” (/bid.) Indeed, the state
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 Supreme Court rejected the opinion of the state’s Attorney General—which had “concluded DFS

contests are illegal under Illinois law”—precisely because the opinion had not considered

important factual information about the degree to which skill predominates over chance in

fantasy sports. (See id., §27.)

Ultimately, the Attorney General cannot determine as a legal matter whether daily
)
BN

fantasy sports contests are prohibited without at least some consideration of the relevant facts.
N

And indeed, that consideration has already taken place. The Attorney General has received, and

considered, submissions from representatives of the digital fantasy sports industry about the
Ao

10 details of different various contests and the degree to which skill predominates over chance. (See
11
Pet. 9 53-54.) And he has interviewed market participants about facts pertaining to digital
12
fantasy sports. (/bid.) In other words, he has engaged in the kind of “factual investigation[]”
13
that his own policy proscribes (OAG Legal Opinions FAQ, supra.), and that transgresses the
14
15 limits of Section 12519. And he has done so precisely because the question presented is

16 inherently fact-bound and cannot be answered without assessing how the many formats of

17 fantasy contests operate and the degree of skill participants exert in determining the outcomes of
18 those different contest types.
19
The Attorney General’s actions fail to abide by a second limit in Section 12519: the
20
requirement that the Attorney General “shall give” his opinion “zo [the] Member of the
21
Legislature” that requested it. (Gov. Code § 12519, emphasis added.) Because Senator Wilk left
22
23 office in 2024 due to term limits, and is now a private citizen, he is not a “Member of the

24
25
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 Legislature” to whom the Attorney General may “give” his opinion.” (Id; see also Attorney

General Opinions Guidelines, supra, at 1 [noting “private individuals” may not request or

receive Attorney General opinions].) Enforcing that limit makes good sense in light of the

mandatory language—the Attorney General “shall give” his opinion “when requested”—in the

statute. (Gov. Code § 12519.) If that obligation extended after the requester has left office, then

a member of the Legislature on his way out of office could demand answers on a range of

controversial issues, and the Attorney General would have to provide them notwithstanding that

the answers would no longer relate to the individual’s former legislative duties.

10 Finally, the request for Opinion No. 23-1001 does not comply with the requirement that
11
an opinion “relat[e]” to the requesting official’s “respective office[]s.” (Gov. Code § 12519.)
12
Again, because Senator Wilk is no longer in office, he no longer has an office for the opinion to
13
“relat[e]” to. (/d.) For that reason alone, the statute does not permit a response to the request.
14
15 But even setting that fatal shortcoming aside, the request does not relate to any legislative office

16 because it asks California’s chief law enforcement officer to stake out a position about whether a

17 longstanding business activity in the State is legal. That question goes to the core of executive
18 branch power. (See, e.g., People v. Boyd (1979) 24 Cal.3d 285, 291 [“[T]he prosecutorial
19
functions [are] vested in the executive branch.”].) By requesting a legal opinion about whether
20
specific conduct violates the law, former Senator Wilk stepped outside his legislative
21
22
23 3 Public reporting suggests that Republican Assemblyman Tom Lackey may have “follow[ed]
up” on Senator Wilk’s efforts once Wilk left office. (See Zavala, Online Fantasy Sports
24 Platforms May Soon Be Illegal In California, supra.) But that does not change the Attorney
25 General’s authority to respond to the original request. The only relevant request on the Attorney
General’s website is for Opinion No. 23-1001, submitted by Senator Wilk, who is no longer in
26 office. (See California Attorney General, Legal Opinions of the Attorney General-Monthly
Opinion Report, supra.) 1f the Attorney General issues Opinion No. 23-1001, he could not “give
27 the ... opinion in writing to” the “Member of the Legislature” who “requested” it because,
again, the requester is no longer in office. (Gov. Code § 12519.)
28 -17 -

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 responsibilities to, in essence, prompt the executive branch to assess its own executive authority.

The Attorney General should have recognized this departure and declined this request.

In sum, by accepting opinion request No. 23-1001 and deciding to publish the

forthcoming opinion, Respondents have violated their ministerial duty to adhere to the limits on

their authority under Section 12519.

e In the alternative, Respondents have abused any discretion they

possess, and Underdog is therefore still entitled to a writ of
mandate.

Because the limits on the Attorney General’s authority under Section 12519 are clear—

10 and have been acknowledged by the Attorney General himself—his duty to abide by them is
11 ministerial. But even if that duty was discretionary, Underdog would still be likely to succeed in
12
its petition. A writ of mandate can be used “to correct abuses of discretion.” (People for Ethical
13
Operation of Prosecutors etc. v. Spitzer (2020) 53 Cal.App.5th 391, 407 [267 Cal. Rptr. 585,
14
598], as modified (Sept. 8, 2020).) In such cases, “[a] reviewing court may issue a writ of
15
16 mandate that requires legislative or executive action ‘to conform to the law,’” but it may not

17 substitute its own discretion. Bull Field, LLC v. Merced Irrigation Dist. (2022) 85 Cal.App.5th

18 442,456 [301 Cal.Rptr.3d 622, 633], citation omitted; see also Schwartz v. Poizner (2010) 187
19
Cal.App.4th 592, 598 [113 Cal.Rptr.3d 610, 615] [“[A] party seeking review under traditional
20
mandamus must show the public official or agency invested with discretion acted arbitrarily,
21
capriciously, fraudulently, or without due regard for his rights, and that the action prejudiced
22
23 him.”]).

24 Respondents have abused any discretion they possess by deciding to accept an opinion

25 request, and to publish a forthcoming opinion, that fails to adhere to the limits on Attorney

26 General authority under Section 12519. (Cf. Morris v. Williams (1967) 67 Cal.2d 733, 737
27
[“Administrative regulations that violate acts of the Legislature are void and no protestations that
28 -18 -

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 they are merely an exercise of administrative discretion can sanctify them.”].) The plain text of

Section 12519 constrains the Attorney General’s discretion to issue opinion by requiring that the

Attorney General only accept an opinion request and issue an opinion that raises a question of

law and that relates to the requesting official’s office. By acting outside those constraints, the

Attorney General has acted arbitrarily in a manner that threatens Underdog with imminent,

irreparable harm. A writ of mandate is thus necessary to compel the Attorney General “to

conform to the law.” (Bull Field, LLC, supra, 85 Cal.App.5th 442, 456.)

2. Underdog has standing, as matter of both beneficial interest and public

interest test, to bring the writ petition.
10
For a party to have standing to seek a writ of mandate, that party must either be
11
12 (1) “beneficially interested” in the writ of mandate; or (2) demonstrate that the “public

13 right/public duty exception to the beneficial interest for a writ of mandate” applies. (Save the

14 Plastic Bag Coal. v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165-66 [citing Code Civ.
15 Proc., § 1086].) Underdog has standing under both doctrines.
16
First, Underdog is a “beneficially interested” party in this dispute. (Doe v. Albany
17
Unified Sch. Dist. (2010) 190 Cal.App.4th 668, 682 [118 Cal.Rptr.3d 507, 518] [citing Code
18
Civ.Proc., § 1086].) “The requirement that a petitioner be ‘beneficially interested’ has been
19
20 generally interpreted to mean that one may obtain the writ only if the person has some special

23 interest to be served or some particular right to be preserved or protected over and above the

22 interest held in common with the public at large.” (Carsten v. Psychology Examining Com.
23
(1980) 27 Cal.3d 793, 796-97 [166 Cal.Rptr. 844, 846]; see also Loeber v. Lakeside Joint School
24
Dist, supra, 103 Cal.App.5th 552, 568 [“The beneficial interest standard ‘is equivalent to the
25
federal “injury in fact” test[.]’”]).
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 As a digital sports fantasy company, Underdog has a “special interest to be served” here.

(Save the Plastic Bag Coal., supra, 52 Cal.4th 155, 165.) The Attorney General has decided to

accept a request (for Opinion No. 23-1001), and to publish a forthcoming opinion, that directly
NN

bears on Underdog’s ability to operate in California. The Attorney General has made plain to
W

Underdog that it intends to drive it out of California entirely, completely ending its business
N

operations here. For all of the reasons described below, infra sec. B, that opinion threatens
N

Underdog with imminent, irreparable harm. Respondents’ actions therefore have “direct and
0

substantial” consequences for Underdog’s business and the future of the industry in which it
O

10 operates. (Save the Plastic Bag Coal., supra, 52 Cal.4th 155, 165.) Because the Attorney
11
General’s opinion has important implications for how Underdog operates its business in
12
California, Underdog has a “particular right to be preserved or protected over and above the
13
interest held in common with the public at large.” (Id.)
14
15 Second, Underdog has public interest standing to bring this petition because it is “one of

16 public right and the object of the mandamus is to procure the enforcement of a public duty.” (/d.

17 at p. 166.) In such cases, a petitioner need not show that “[it] has any legal or special interest in
18 the result, since it is suffi’cient that [it] is interested as a citizen in having the laws executed and
19
the duty in question enforced.” (/d.) “This exception to the beneficial interest requirement
20
protects citizens’ opportunity to ‘ensure that no governmental body impairs or defeats the
21
purpose of legislation establishing a public right.”” (Weatherford v. City of San Rafael (2017) 2
22
23 Cal.5th 1241, 1248.) Public interest standing is appropriate here because the purpose of the

24 petition is to require the Attorney General to comply with the public duties set out in California

25 Government Code § 12519. Section 12519 places important limitations on the Attorney
26 General’s authority to issue opinions, and it is a matter of public importance—not least because
77
of the countless employees and fantasy sports contest participants who will be affected—that the
28 =20 -

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 state’s chief law enforcement official comply with those limits and not inappropriately issue

opinions about what California law does, or does not, require.

3. Underdog’s claims are ripe for consideration by this Court.

Underdog’s claims are ripe for adjudication. The ripeness requirement “prevents courts

from issuing purely advisory opinions.” (Communities for a Better Env't v. State Energy Res.
O

Conservation & Dev. Com. (2017) 19 Cal.App.5th 725, 732 [227 Cal.Rptr.3d 486, 492].)
N

Although the “precise content of the doctrine is difficult to define and hard to apply, generally

speaking, a controversy is ripe when it has reached, but has not passed, the point that the facts
10 have sufficiently congealed to permit an intelligent and useful decision to be made.” (Id. at p.
11
733, internal quotations omitted.) By contrast, “unripe cases are those in which parties seek a
12
judicial declaration on a question of law, though no actual dispute or controversy ever existed
13
between them requiring the declaration for its determination.” (Id., internal quotations omitted.)
14
15 This controversy “has reached, but has not passed,” the key inflection point. (/d.) It is

16 now clear—indeed, the Attorney General’s office has acknowledged—that the Attorney General

17 will issue a sweeping, unfavorable opinion this week that will be damaging to Underdog’s
18 interests. (See Gringer TRO Decl. ] 2-4.) Accordingly, there is no other window in which both
19
the legal shortcomings of the Attorney General’s decision to accept the request for and issue
20
Opinion No. 23-1001 have been clear and the consequences of those shortcomings have been
21
knowable and imminent. The facts are thus “sufficiently congealed” and require judicial
22
23 adjudication to prevent imminent harm to Underdog. (Communities for a Better Env't, supra, 19

24 Cal.App.5th 725, 733.) After all, “the [ripeness] requirement should not prevent courts from

25 resolving concrete disputes if the consequence of a deferred decision will be lingering

26 uncertainty in the law, especially when there is widespread public interest in the answer to a
27
particular legal question.” (O.W.L. Found. v. City of Rohnert Park (2008) 168 Cal.App.4th 568,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 584 [86 Cal.Rptr.3d 1, 12]; see also Nat. Audubon Society v. Superior Court (1983) 33 Cal.3d

419, 432 n. 14 [189 Cal.Rptr. 346, 354] ]“If the issue of justiciability is in doubt, it should be

resolved in favor of justiciability in cases of great public interest.”].)

B. The Balance of Harms Favors Underdog

In deciding whether to issue a TRO, “the trial court compares the injury to the plaintiff in
O

the absence of a restraining order to the injury the defendant is likely to suffer if an order is
9

issued.” (Church of Christ in Hollywood v. Superior Court, supra, 99 Cal.App.4th 1244, 1257.)
0

Moreover, to proceed on an ex parte basis, an applicant “must make an affirmative factual

O

10 showing ... of irreparable harm, immediate danger, or any other statutory basis for granting relief
11
ex parte.” (Cal. Rules of Court, rule 3.1202(c).) This case is not a close question. Absent a
12
TRO, Underdog faces irreparable harm from the Attorney General’s forthcoming unfavorable
13
opinion, which will jeopardize Underdog’s ability to operate in California and permanently
14
15 undermine Underdog’s business interests. Underdog has made an affirmative factual showing

16 that an expedited ex parte proceeding is necessary—because the Attorney General plans to issue

17 an unfavorable opinion this week, Underdog faces imminent, irreparable harm that can only be
18 prevented by a timely TRO.
19
On the other side of the ledger, Respondents suffer no injury from the issuance of a TRO.
20
A TRO would simply temporarily delay the issuance of an unlawful opinion to give the Court
21
more time to decide the merits of the underlying petition and preliminary injunction motion.
22
23 Because the Opinion Request has been pending since October 19, 2023, it is not likely that a few

24 additional weeks would meaningfully impact Respondents.

25 1. Underdog Will Suffer Imminent and Irreparable Harm Without an

Injunction.
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 A TRO is necessary to prevent imminent and irreparable harm to Underdog. Without

such an order, the Attorney General will publish Opinion No. 23-1001 in a matter of days,

(Gringer TRO Decl. § 2-4), and a string of negative consequences will unfold. Dustin Cooper,
NN

Underdog’s Chief Business Officer and immediate past Chief Financial Officer, has described
D

these consequences in depth in his accompanying declaration. (See Cooper Decl. 9 2, 15-30.)
N

First, many of Underdog’s customers in California would withdraw money from their
N

accounts on the mistaken belief that Underdog is in violation of California law. (Id. §18.)

Relatedly, the legal uncertainty the opinion would create would also cause Underdog to face

10
challenges in obtaining services from the third-party providers, suppliers, and vendors that it
11
relies on to sustain its operations in California. (See id. §19.) These include banks and payment
12
processors, online marketplaces, and marketing and advertising firms that operate in the state.
13
(Id. 99 19-22.) Additionally, the negative perceptions generated by the opinion would undermine
14

15 Underdog’s ability to recruit and maintain talented employees, partner with content creators, and

16 secure celebrity endorsements. (/d. §23.)

17 Underdog would additionally lose out on significant business opportunities, both inside
18
and outside of California. (/d. §25.) California is such an important market that investors and
19
other industry insiders pay close attention to developments in the state. (/d.) The Attorney
20
General’s opinion would therefore send a strongly negative signal to current and potential
21
investors and business partners, costing Underdog opportunities to grow its business elsewhere.
22

23 (Id.) The contemplated opinion would also impair Underdog’s ability to apply for and maintain

24 licenses for operating fantasy sports and online sports wagering. (Id. §26.)

25 These harms will persist even if Underdog eventually receives a favorable judgment on
26
the merits of its petition. Some California customers who withdraw funds from their accounts
27
will not return. (/d. §27.) Likewise, lost customers and continued legal uncertainty will likely
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 cause some third-party service providers, suppliers, and vendors, along with potential investors

and business partners, to refrain from investing or reinvesting in Underdog and to instead put

their money elsewhere. (/d. §928-29.) The financial costs and loss of goodwill that Underdog

will incur amidst these disruptions are significant and irreparable. (See e.g., People v. Uber

Techs., Inc. (2020) 56 Cal.App.5th 266, 305-06 [270 Cal.Rptr.3d 290, 322] [citing American
O

Trucking Assocs., Inc. v. City of Los Angeles (9th Cir. 2009) 559 F.3d 1046, 1058] [for the
N

proposition that irreparable harm can result from a company “incurring large costs in
0

restructuring business and losing customer goodwill”].)

O

10
Finally, in assessing the likelihood and magnitude of the harm in this case, it is
11
significant that the fantasy sports industry has seen this play before. The fallout from an attorney
12
general’s opinion on the legality of fantasy sports is unmistakable: FanDuel and Draft Kings,
13
two of Underdog’s competitors, faced such significant financial and legal pressures in the wake
14

15 of an attorney general opinion in Texas and a cease-and-desist letter in Alabama that they were

16 forced to withdraw all of their paid products from the states.® In other words, the stakes for

17 Underdog’s business in California are existential, and irreparable harm is likely to flow from the
18
opinion in the absence of an injunction.
19
2. Respondents Will Not Suffer Harm from an Injunction
20
Respondents, however, will not suffer any cognizable harm if this Court temporarily
21
enjoins the release of Opinion No. 23-1001. Then-Senator Wilk requested the opinion in
22

23

24

25 6 (See, e.g., Purdum, FanDuel to cease paid contests in Texas in May; DrafiKings files suit (Mar.
4, 2016) ESPN, https://www.espn.com/sports-betting/story/ /id/14903788/fanduel-texas-
26 attorney-general-reach-settlement-cease-paid-operations-state-1; Fantasy sports companies to
comply with Attorney General and cease operations in Alabama (Apr. 29, 2016) ABC 33/40,
27 https://abc3340.com/news/local/fantasy-sports-companies-to-comply-with-attornery-general-
and-cease-operations-in-alabama.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 October 2023, more than 18 months ago. Indeed, to the extent anyone could object to delay, it

would have been Senator Wilk as the requester of the opinion. But because he is no longer in the

Legislature, any additional delay does not harm him. For Respondents, the fact that the opinion

has sat in the Attorney General’s queue for so long demonstrates that there is no reason to think

that a brief delay (while this Court considers Underdog’s petition on the merits) will cause

Respondents any injury at all. Underdog, by contrast, only learned about the full scope of the

Attorney General’s forthcoming opinion the evening of Thursday, June 26, 2025—Iess than two

business days before bringing its petition for writ of mandate and this ex parte TRO application.
10 (See Gringer TRO Decl. 4 2-4.) That difference in urgency between the parties mirrors the
11
difference in the harms they respectively face.
12
Moreover, Respondents will be hard-pressed to identify any tangible harms given that
13
they have permitted Underdog to operate in California since 2020 without incident. (Cooper
14
15 Decl. §16.) More broadly, online fantasy sports platforms have been operating in California for

16 more than thirty years.” Respondents will not be harmed by preserving the decades-long status

17 quo for a matter of days or weeks, particularly because an injunction here would not limit any
18 enforcement authority Respondents possess.
19
Finally, there can be no harm to Respondents (or to the people of California) in
20
preventing Respondents from acting outside the scope of their statutory authority, because “[a]n
21
agency that exceeds the scope of its statutory authority acts ultra vires and the act is void.”
22
23 (Water Replenishment Dist. of S. California v. City of Cerritos (2012) 202 Cal.App.4th 1063,

24
25
26 7 (Behe, Fantasy sports leagues put armchair quarterbacks in the game, TribLIVE (Dec. 14,
2002), https://web.archive.org/web/20210709182225/https://archive.triblive.com/news/fantasy-
27 sports-leagues-put-armchair-quarterbacks-in-the-game [noting that “www.espn.com launched its
fantasy games in 1995”].)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI

 1072 [135 Cal.Rptr.3d 895, 903].) As a result, no harm can flow from an injunction against

Respondents because the government “cannot suffer harm from an injunction that merely ends

an unlawful practice.” (Rodriguez v. Robbins (9th Cir. 2013) 715 F.3d 1127, 1145.)

V. CONCLUSION

For the foregoing reasons, a temporary restraining order is necessary to preserve the
O

status quo, and the Court should (1) issue a Temporary Restraining Order prohibiting
9

Respondents from issuing Opinion No. 23-1001, or from issuing any similar opinion pertaining
0

to the legality of daily fantasy sports platforms under California law, pursuant to the Attorney
O

10 General’s authority under Government Code Section 12519; and (2) an Order to Show Cause
11
why that relief should not be extended by Preliminary Injunction until a final judgment is
12
entered.
13
14
15 DATED: June 30, 2025

16 Respectfully submitted,

17 WILMER CUTLER PICKERING

HALE AND DORR LLP
18
19
20
w (L Caleb Lin

21 Attorneys for Petitioner

UNDERDOG SPORTS, LLC,
22 d/b/a Underdog Fantasy
23
24
25
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRO AND PI