20-1831(L)

Olson v. Major League Baseball

United States Court of Appeals

for the Second Circuit _____________________________________

August Term 2020

(Submitted: December 14, 2020 Decided: March 21, 2022)

Nos. 20-1831-cv; 20-1841-cv 

_____________________________________

KRISTOPHER R. OLSON, CHRISTOPHER CLIFFORD, ERIK LIPTAK,

CHRISTOPHER LOPEZ, WARREN BARBER, INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Plaintiffs-Appellants-Cross-Appellees,

— v. —

MAJOR LEAGUE BASEBALL, MLB ADVANCED MEDIA, L.P.,

Defendants-Appellees-Cross-Appellants,

NEW YORK YANKEES PARTNERSHIP,

Interested Party-Appellee-Cross-Appellant,

BOSTON RED SOX BASEBALL CLUB, L.P., HOUSTON ASTROS, LLC,

Defendants-Appellees.*

_____________________________________

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. 
Before: LIVINGSTON, Chief Judge, LYNCH and BIANCO, Circuit Judges.

Plaintiffs-Appellants Kristopher R. Olson, Christopher Clifford, Erik Liptak, 

Christopher Lopez, and Warren Barber appeal from the judgment of the United 

States District Court for the Southern District of New York (Rakoff, J.), granting 

the motion to dismiss all claims against Major League Baseball (“MLB”) entities

and two teams. Plaintiffs, a putative class of fantasy sports players, assert claims 

for fraudulent misrepresentations and omissions, negligent misrepresentations, 

violations of various state consumer protection laws, and unjust enrichment. The 

gravamen of the lawsuit is that plaintiffs, along with a potential class of thousands 

of other contestants, paid to compete in fantasy baseball contests operated by nonparty DraftKings Inc. (“DraftKings”), wrongly believing that they were engaging 

in “games of skill” based upon a fair gauge of player performance, while 

defendants fraudulently concealed that the player statistics were purportedly

unreliable because of rule violations in the form of electronic sign-stealing by 

certain MLB teams during the 2017–2019 baseball seasons. Plaintiffs further allege 

that MLB intentionally took no action to address these rule violations in order to 

protect its financial interest and investment in DraftKings.

We affirm the district court’s dismissal of the First Amended Complaint and 

its denial of plaintiffs’ motion for reconsideration. At its core, this action is nothing 

more than claims brought by disgruntled fantasy sports participants, unhappy 

with the effect that cheating in MLB games may have had on their level of success 

in fantasy sports contests. We hold that alleged misrepresentations or omissions 

by organizers and participants in major league sports about the competition

itself—such as statements about performance, team strategy, or rules violations—

do not give rise to plausible claims sounding in fraud or related legal theories 

brought by consumers of a fantasy sports competition who are utilizing a league’s 

player statistics. 

The MLB entities and the New York Yankees Partnership have filed a crossappeal, challenging the district court’s separate order, which concluded that a 

September 14, 2017 letter from the MLB Commissioner to the New York Yankees

General Manager should be unsealed. This letter related to the results of an 

internal investigation, which plaintiffs allege contradicted a subsequent MLB 

press release on the same subject. In light of plaintiffs’ attempted use of the letter 

in their proposed Second Amended Complaint and the district court’s discussion 
3

of the letter in explaining its decision to deny plaintiffs’ request for leave to amend 

in their reconsideration motion, and because MLB disclosed a substantial portion 

of the substance of the letter in its press release about the investigation, we 

conclude that the district court did not abuse its discretion in unsealing the letter, 

subject to redacting the names of certain individuals. 

Accordingly, we AFFIRM the district court’s dismissal of plaintiffs’ First 

Amended Compliant without leave to amend and the district court’s denial of 

plaintiffs’ motion for reconsideration. We also AFFIRM the district court’s 

unsealing order.

DAVID S. GOLUB (Steven L. Bloch, on 

the brief), Silver Golub & Teitell LLP, 

Stamford, Connecticut; John D. 

Radice, Kenneth Pickle, Natasha 

Fernandez-Silber, April Lambert, 

Radice Law Firm, P.C., Princeton, 

New Jersey (on the brief), for PlaintiffsAppellants-Cross-Appellees.

JOHN L. HARDIMAN (Benjamin R. 

Walker, Hannah Lonky Fackler, on the 

brief), Sullivan & Cromwell LLP, New 

York, New York, for DefendantsAppellees-Cross-Appellants.

RANDY L. LEVINE, New York Yankees 

Partnership, Bronx, New York; 

Jonathan D. Schiller, Thomas H. 

Sosnowski, Boies Schiller Flexner 

LLP, New York, New York (on the 

brief), for Interested Party-AppelleeCross-Appellant.

Katherine B. Forrest, Michael T. 

Reynolds, Lauren A. Moskowitz, 

Cravath, Swaine & Moore LLP, New 
4

York, New York, for DefendantAppellee Boston Red Sox Baseball Club, 

L.P.

HILARY L. PRESTON (Clifford Thau,

Marisa Antos-Fallon, on the brief), 

Vinson & Elkins LLP, New York, New 

York; Michael C. Holmes, Vinson & 

Elkins LLP, Dallas, Texas (on the brief),

for Defendant-Appellee Houston Astros, 

LLC.

_____________________________________

JOSEPH F. BIANCO, Circuit Judge:

Plaintiffs-Appellants Kristopher R. Olson, Christopher Clifford, Erik Liptak, 

Christopher Lopez, and Warren Barber appeal from the judgment of the United 

States District Court for the Southern District of New York (Rakoff, J.), granting 

the motion to dismiss all claims against Major League Baseball (“MLB”) and MLB 

Advanced Media, L.P. (“MLBAM,” and together with MLB, the “MLB 

Defendants”), as well as the Boston Red Sox Baseball Club, L.P. (the “Red Sox”) 

and Houston Astros, LLC (the “Astros,” and together with the Red Sox, the “Team 

Defendants”). 

Plaintiffs assert claims for fraudulent misrepresentations and omissions, 

negligent misrepresentations, violations of various state consumer protection 

laws, and unjust enrichment. The gravamen of the lawsuit is that plaintiffs, along 
5

with a potential class of thousands of other contestants, paid to compete in fantasy 

baseball contests operated by non-party DraftKings Inc. (“DraftKings”), wrongly 

believing that they were engaging in “games of skill” based upon a fair gauge of 

player performance, while defendants fraudulently concealed that the player

statistics were unreliable because of rule violations in the form of electronic signstealing by certain MLB teams during the 2017–2019 baseball seasons. Plaintiffs 

further allege that MLB intentionally took no action to address these rule 

violations in order to protect its reputation and financial interests, as well as its

investment in DraftKings. 

Defendants moved to dismiss all the claims in this action, and the district 

court granted that motion, dismissing the First Amended Complaint (“FAC”) in 

its entirety without leave to amend. In a motion for reconsideration, plaintiffs 

moved to vacate the judgment and for leave to amend, attaching their proposed 

Second Amended Complaint (“SAC”) to the motion, which purported to cure the 

deficiencies in the FAC by, inter alia, adding new allegations drawn from materials 

obtained during discovery. The district court denied the motion for 

reconsideration for substantially the same reasons it dismissed the FAC. 
6

As part of its order denying plaintiffs’ motion for reconsideration, the 

district court discussed a September 14, 2017 letter, referenced in the proposed 

SAC and filed under seal, which was sent by the Commissioner of the MLB to the 

General Manager of the New York Yankees Partnership (the “Yankees”) and

related to the results of an internal investigation by MLB. In a separate order, after 

application of the three-part analysis required by our precedent, the district court 

determined that the letter should be unsealed, but permitted the MLB Defendants 

and the Yankees to submit a redacted version to protect the identity of the 

individuals mentioned therein, and then stayed the unsealing order to allow the 

Yankees to appeal to this Court. 

We affirm the district court’s dismissal of the FAC and its denial of plaintiffs’ 

motion for reconsideration. At its core, this action is nothing more than claims 

brought by disgruntled fantasy sports participants, unhappy with the effect that 

cheating in MLB games may have had on their level of success in fantasy sports 

contests. We hold that alleged misrepresentations or omissions by organizers and 

participants in major league sports about the competition itself—such as 

statements about performance, team strategy, or rules violations—do not give rise 

to plausible claims sounding in fraud or related legal theories brought by 
7

consumers of a fantasy sports competition who are utilizing a league’s player 

statistics.

More specifically, among other pleading defects, plaintiffs have not 

plausibly alleged, either in the FAC or the proposed SAC, actual or reasonable 

reliance upon the alleged fraudulent and negligent misrepresentations about 

player performance and electronic sign-stealing. Apart from actual reliance, no 

consumer of fantasy baseball competitions could plausibly allege that, in paying 

to participate in the competition, they reasonably relied upon these statements in 

believing that the sport of major league baseball was free from intentional 

violations of league rules by teams and/or individual players. Instead, any

reasonable spectator or consumer of sports competitions—including participants 

in fantasy sports contests based upon such sporting events—is undoubtedly aware 

that cheating is, unfortunately, part of sports and is one of many unknown 

variables that can affect player performance and statistics on any given day, and 

over time. 

The claims under the various state consumer protection laws fail for a 

similar reason—that is, the alleged statements by defendants about the integrity 

of their sport (including the electronic sign-stealing issue) do not rise to the level 
8

of a deceptive or unfair practice that would plausibly mislead the reasonable 

consumer under these circumstances. In addition, with respect to the unjust 

enrichment claim, there is no plausible claim that any alleged benefit to MLB was 

unjust. Thus, the FAC was properly dismissed, and the motion for reconsideration 

was properly denied because the additional allegations in the proposed SAC do 

not cure these pleading defects, as the claims in this particular case are based on 

fundamentally-flawed legal theories. 

We likewise affirm the district court’s order unsealing the September 14, 

2017 letter sent by the MLB Commissioner to the Yankees’ General Manager about 

the results of an internal investigation, which plaintiffs allege contradicted a 

subsequent MLB press release on the same subject. In light of plaintiffs’ attempted 

use of the letter in their proposed SAC and the district court’s discussion of the 

letter in explaining its decision to deny them the leave to amend requested in their

reconsideration motion, and because a substantial portion of the substance of the 

letter has already been disclosed in the press release about the investigation issued 

by MLB, we conclude that the district court did not abuse its discretion in 

unsealing the letter with redactions. 
9

Accordingly, we AFFIRM the district court’s dismissal of plaintiffs’ FAC 

without leave to amend and the district court’s denial of plaintiffs’ motion for 

reconsideration. We also AFFIRM the district court’s unsealing order.

BACKGROUND

I. Factual Background1

DraftKings was founded in 2012 to operate daily and weekly fantasy sports 

contests—across multiple sports including baseball—through its website and 

mobile applications. Less than a year after DraftKings’ founding, MLB, acting 

through and in a partnership or joint venture with MLBAM,2 acquired an equity 

stake in DraftKings. 

As part of the partnership, DraftKings offers daily fantasy sports baseball 

competitions (“MLB DFS”) and requires “contestants to select a lineup of MLB 

players pursuant to a ‘salary cap’ draft.” Joint App’x at 80. DraftKings 

1 The factual summary below is derived from the allegations in the FAC and the proposed 

SAC, which we must accept as true in reviewing a motion to dismiss. See Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009).

2 MLB is an unincorporated association consisting of thirty major league baseball clubs, 

including defendants Houston Astros and Boston Red Sox, and interested party New 

York Yankees Partnership (the “Yankees”). MLBAM is a limited partnership comprised 

of MLB’s member clubs (or their affiliates). “MLBAM has responsibility for internet and 

interactive marketing for MLB, including MLB’s relationship with DraftKings and 

promotion and marketing of DraftKings’ fantasy baseball competitions on a nationwide 

basis.” Joint App’x at 78. 
10

participants accumulate fantasy points based on the performance of their 

“drafted” players in real life on the particular day or week covered by the contest; 

at the end of the contest, the total points accrued determines who wins a cash prize. 

As outlined in the FAC, MLB DFS, like other fantasy sports competitions offered 

by DraftKings, are defined as “games of skill,” which are exempt from federal 

prohibitions on illegal gambling, pursuant to the Unlawful Internet Gambling 

Enforcement Act (“UIGEA”), 31 U.S.C. § 5361, et seq. (2006). The DraftKings’ 

“Terms of Use” include a “Conditions of Participation” provision, which states 

that “[W]inners are determined by the individuals who use their skill and 

knowledge of relevant sports information and fantasy sports rules to accumulate 

the most points according to the corresponding scoring rules.” Joint App’x at 460. 

Participants pay DraftKings an entry fee to join a contest, a portion of which is 

kept by DraftKings and a portion of which funds the contests’ prizes. 

Plaintiffs Olson, Lopez, Barber, Clifford, and Liptak are residents of 

Massachusetts, California, Texas, Florida, and Colorado, respectively. Each 

plaintiff participated in these contests and alleged in the proposed SAC that he 

received and relied upon the MLB fantasy baseball contests’ Conditions of 

Participation, which stated that the contests were conducted as games of skill, in 
11

deciding to pay to participate in these contests. Joint App’x at 505, 509, 512, 514, 

516–17. 

In early 2015, MLB made a further investment in DraftKings, creating what 

MLB and DraftKings called “the most comprehensive league partnership in daily 

fantasy sports history.” Joint App’x at 82 (internal quotation marks omitted). 

According to the FAC, the deal “provided for co-branding of DraftKings’ DFS 

baseball contests, allowed DraftKings to offer market-specific in-ballpark 

experiences, and gave DraftKings promotional rights, use of MLB league and team 

logos, the exclusive right to sign sponsorship deals with individual MLB member 

clubs, and a designation as MLB’s ‘Official Daily Fantasy Game.’” Joint App’x at 

82–83. In return, plaintiffs allege, the MLB Defendants “received a share of the 

multi-million dollar fees earned from fantasy baseball contestants, an increase in 

the value of its equity investment in DraftKings (which MLB redeemed in 2019), 

as well as substantial other financial benefits.” Joint App’x at 72–73. 

As part of that March 2015 deal, MLBAM, acting on behalf of MLB and its 

clubs and affiliates, and DraftKings signed a licensing and marketing agreement, 

setting out the conditions under which DraftKings could use MLB’s proprietary 

material in its fantasy baseball competitions (“MLB-DraftKings Agreement”). The 
12

terms of that agreement allegedly show that the MLB Defendants “were not 

simply [] investor[s] in DraftKings,” but were “directly and substantially involved 

in every aspect of the commercial venture.” Joint App’x at 458. 

Shortly thereafter, and before July 2015, DraftKings announced individual 

partnerships with twenty-seven of MLB’s member clubs, including the Astros and 

the Red Sox.3 As part of the terms of these partnerships, DraftKings could create 

“market-specific in-ballpark experiences” and could “place advertisements inside 

the stadiums of their partner MLB member clubs.” Joint App’x at 83. This 

business relationship between DraftKings and defendants allegedly continued 

into the relevant time period, which included the 2017–2019 baseball seasons.

Meanwhile, the issue regarding electronic sign-stealing was brewing in 

baseball. During baseball games, pitchers and catchers use a series of signals—

called “signs”—to communicate the type of pitch being thrown, and the intended 

speed, movement, and location of the pitch. A batter who knows the type of pitch 

being thrown in advance is more likely to hit the ball successfully. Thus, keeping 

such signs secret is significant to a pitcher’s success, and the disclosure to the batter 

of the content of the signs correspondingly affects his success. 

3 The Astros and the Red Sox deny that any separate individual contracts exist between 

them and DraftKings. Astros’ Br. at 11; Red Sox’s Br. at 4–5.
13

All of MLB’s member clubs have entered into an operating agreement (the 

“MLB Constitution”), pursuant to which all teams agreed to be bound by rules 

and regulations “relating to games, ballparks . . . and other matters” set by MLB. 

Joint App’x at 85. MLB rules and regulations do not prohibit sign-stealing per se,

but as of the start of the 2017 season, they did explicitly prohibit electronic signstealing. Joint App’x at 87 (stating that regulations barred “the use of electronic 

equipment or devices during games, providing that no such equipment ‘may be 

used for the purpose of stealing signs or conveying information designed to give 

a Club an advantage’”).

Throughout the 2017, 2018, and 2019 baseball seasons, officials and players 

of the Astros and the Red Sox (and possibly other MLB member clubs) allegedly 

violated MLB rules by engaging in electronic sign-stealing.4 Although plaintiffs 

allege that these teams improved their batting performance significantly during 

the class period by engaging in this prohibited practice, the Team Defendants 

attributed their success to legitimate factors in various public statements made 

throughout this period. 

4 The FAC cites a news article reporting that Astros personnel believed that as many as 

eight teams may have been electronically stealing signs. Joint App’x at 109. The 

proposed SAC further alleges that electronic sign-stealing occurred as early as the 2015 

baseball season. 
14

Electronic sign-stealing was reported to MLB when the Yankees filed a 

complaint in 2017. MLB Commissioner Robert D. Manfred, Jr. then issued a public 

statement on September 15, 2017 (the “2017 Press Release”) announcing that his 

office had “conducted a thorough investigation” of the allegation by the Yankees 

“that the Boston Red Sox violated certain Major League Baseball Regulations by 

using electronic equipment to aid in the deciphering of signs being given by the 

Yankees’ catcher,” and that he was “prepared to disclose the results of that 

investigation.” Joint App’x at 295. The 2017 Press Release noted, “At the outset, 

it is important to understand that the attempt to decode signs being used by an 

opposing catcher is not a violation of any Major League Baseball Rule or 

Regulation.” Joint App’x at 295. It further emphasized that “Major League 

Baseball Regulations do, however, prohibit the use of electronic equipment during 

games and state that no such equipment ‘may be used for the purpose of stealing 

signs or conveying information designed to give a Club an advantage.’” Joint 

App’x at 295. Based on the investigation conducted by his office, Commissioner 

Manfred found that the Red Sox violated this regulation “by sending electronic 

communications from their video replay room to an athletic trainer in the dugout.” 

Joint App’x at 295. He noted that he had “received absolute assurances from the 
15

Red Sox that there will be no future violations of this type,” and imposed a fine on 

the Red Sox of “an undisclosed amount.” Joint App’x at 295. According to 

plaintiffs, that fine did not serve to deter the Red Sox, as the team is alleged to have

resumed the practice the following season. 

The 2017 Press Release further explained that, after the Yankees’ complaint, 

“the Red Sox brought forward allegations that the Yankees had made improper 

use of the YES Network in an effort to decipher the Red Sox signs.” Joint App’x at 

295. It then described how the Commissioner’s Office subsequently conducted an 

investigation into the Yankees’ alleged conduct, and the results of that 

investigation: 

During that investigation, we found insufficient evidence to support 

the allegation that the Yankees had made inappropriate use of the 

YES Network to gain a competitive advantage. In the course of our 

investigation, however, we learned that during an earlier 

championship season (prior to 2017) the Yankees had violated a rule 

governing the use of the dugout phone. No Club complained about 

the conduct in question at the time and, without prompting from 

another Club or my Office, the Yankees halted the conduct in 

question. Moreover, the substance of the communications that took 

place on the dugout phone was not a violation of any Rule or 

Regulation in and of itself. Rather, the violation occurred because the 

dugout phone technically cannot be used for such a communication. 

Based on the foregoing, I have decided to fine the Yankees a lesser 

undisclosed amount which in turn will be donated by my office to 

hurricane relief efforts in Florida.
16

Joint App’x at 296.

Allegations of electronic sign-stealing by the Astros did not become public 

until various news articles were published in November 2019. Shortly thereafter, 

Commissioner Manfred announced the commencement of a “really, really

thorough” investigation into the alleged conduct by the Astros. Joint App’x at 96. 

On January 13, 2020, Commissioner Manfred announced in a press release that 

MLB had determined that the Astros engaged in electronic sign-stealing in the 

2017 season and part of the 2018 season. Commissioner Manfred described how 

“the conduct of the Astros, and its senior baseball operations executives, merits 

significant discipline” because this behavior “caused fans, players, executives at 

other MLB Clubs, and members of the media to raise questions about the integrity 

of games in which the Astros participated.” Press Release, Major League Baseball, 

Office of the Commissioner, MLB Completes Astros’ Investigation (Jan. 13, 2020); 

see Joint App’x at 96 n.40 (citing press release). The press release contained many 

of the details regarding the findings of that investigation of the Astros, and also 

announced the imposition of disciplinary sanctions against the Astros and certain 

members of the Astros organization. 
17

II. Procedural History

Ten days after the January 13, 2020 press release about the Astros, plaintiff 

Olson filed the initial class action complaint alleging: (1) violations of state 

consumer protection statutes of nearly all fifty states against the MLB Defendants, 

(2) unjust enrichment against all defendants, (3) negligence against the MLB 

Defendants, and (4) violations of the Texas Deceptive Trade Practices and 

Consumer Protection Act (“TDTPA”) against the Astros. Plaintiff Olson also 

indicated an intent to file a cause of action alleging violations of the Massachusetts 

Consumer Protection Act (“MCPA”) against the Red Sox. 

On February 14, 2020, the FAC was filed, and plaintiff Olson was joined by 

new plaintiffs Lopez, Barber, Clifford, and Liptak. The FAC added a claim for 

common law fraud against all defendants, provided more detailed allegations 

regarding particular violations of state consumer protection statutes in connection 

with the domiciles of plaintiffs, and now alleged negligence as a separate cause of

action against the Team Defendants to supplement the prior negligence allegations 

against the MLB Defendants. In sum, plaintiffs allege common law fraud, 

negligence, and unjust enrichment against all defendants; violations of the 

consumer protection statutes of plaintiffs’ home states (and the “substantially 
18

similar” consumer protection statutes of numerous other states) against the MLB 

Defendants; violations of the TDTPA against the Astros; and violations of the 

MCPA against the Red Sox. Plaintiffs seek the certification of a nationwide class, 

and Massachusetts, California, Texas, Florida, and Colorado subclasses. 

Plaintiffs’ allegations center on defendants’ purported concealment of the 

electronic sign-stealing scheme: The FAC ties defendants’ alleged concealment of 

the prohibited electronic sign-stealing—which purportedly corrupted the fairness 

of MLB DFS contests—to defendants’ financial interest and investment in 

DraftKings. The FAC alleges that defendants made various statements and 

omissions designed to conceal the electronic sign-stealing scheme in order to 

convince plaintiffs (and other MLB DFS contest participants) that the MLB DFS 

contests were “games of skill” grounded in fair and legitimate player performance 

statistics. The ultimate aim of such deception was allegedly to induce plaintiffs 

and other DraftKings participants to play MLB DFS contests, which each plaintiff 

alleges he would not have done “had he known that the honesty of the player 

performance statistics on which his wagers were based and the results of his 

wagers were determined was compromised by MLB teams’ and players’ electronic 

sign stealing.” Joint App’x at 112–15.
19

On April 3, 2020, the district court dismissed the FAC in its entirety without 

leave to amend. Olson v. Major League Baseball (“Olson I”), 447 F. Supp. 3d 159, 173

(S.D.N.Y. 2020). Judgment was entered on April 7, 2020. On May 6, 2020, pursuant 

to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure, plaintiffs sought 

reconsideration in the form of a motion to alter, amend, and vacate the judgment 

and for leave to amend, attaching their proposed SAC. According to plaintiffs, the 

proposed SAC cured the deficiencies in the FAC by, inter alia, adding new 

allegations drawn from materials obtained during discovery. On June 5, 2020, the 

district court denied the reconsideration motion in its entirety. Olson v. Major 

League Baseball (“Olson II”), 447 F. Supp. 3d 174, 182 (S.D.N.Y. 2020). 

In Olson II, the district court discussed a letter, dated September 14, 2017, 

sent by Commissioner Manfred to the General Manager of the Yankees. Id. at 179. 

That letter, filed under seal, was referenced in the proposed SAC and was subject 

to a request for continued sealing by the MLB Defendants and third-party 

Yankees. Id. at 179 n.3. 

In a subsequent order, the district court determined that the letter should be 

unsealed, but permitted the MLB Defendants and the Yankees to submit “a 

minimally redacted version of the letter to protect the identity of individuals 
20

mentioned therein.” Olson v. Major League Baseball (“Olson III”), 466 F. Supp. 3d 

450, 456–57 (S.D.N.Y. 2020). The district court also stayed the unsealing to allow 

the Yankees to pursue an appeal in this Court. Id. at 457.

This appeal followed. Plaintiffs appeal the dismissal of the FAC, as well as 

the denial of the motion for reconsideration based on the proposed SAC. The MLB 

Defendants and the Yankees cross-appeal the district court’s unsealing order.

DISCUSSION

I. Plaintiffs’ Appeal

A. The Standard of Review

We review the grant of a motion to dismiss de novo, accepting all factual 

allegations in the complaint as true and drawing all reasonable inferences in favor 

of the plaintiff. City of Providence v. Bats Glob. Mkts., Inc., 878 F.3d 36, 48 (2d Cir. 

2017). 

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must 

contain sufficient factual matter, accepted as true, to state a claim to relief that is 

plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “A 

claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 
21

misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” Id. 

Claims sounding in fraud must satisfy the heightened pleading standards 

of Federal Rule of Civil Procedure Rule 9(b). See Eternity Glob. Master Fund Ltd. v. 

Morgan Guar. Tr. Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004). Under Rule 9(b)’s 

particularity requirement, the plaintiff must “(1) detail the statements (or 

omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) 

state where and when the statements (or omissions) were made, and (4) explain 

why the statements (or omissions) are fraudulent.” Id. at 187; see also Fin. Guar. 

Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 402–03 (2d Cir. 2015). 

The district court’s denial of leave to amend is similarly reviewed de novo

because the district court made an interpretation of law when it determined that 

any amendment, and specifically the proposed amendments in the SAC, would be 

futile. See Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 

2012). “Futility is a determination, as a matter of law, that proposed amendments 

would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the 

Federal Rules of Civil Procedure.” Id. In general, when evaluating whether a

proposed amended complaint would state a claim, we consider “the proposed 
22

amendment[s] . . . along with the remainder of the complaint.” Starr v. Sony BMG 

Music Ent., 592 F.3d 314, 323 n.3 (2d Cir. 2010). 

Finally, we generally review the denial of a reconsideration motion under 

Federal Rules of Civil Procedure 59(e) and 60(b) for abuse of discretion. See Johnson 

v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011) (per curiam) (Rule 

60(b)); Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 150 (2d Cir. 2008) (Rule 59(e)). 

However, where (as here) the denial of reconsideration is based solely on futility 

grounds, we again conduct de novo review. See, e.g., Ind. Pub. Ret. Sys. v. SAIC, Inc., 

818 F.3d 85, 92 (2d Cir. 2016). 

For ease, we will review the allegations contained in both the FAC and the 

proposed SAC together. Moreover, the parties agree that the claims should be 

analyzed under the law of each plaintiff’s home states and, unless otherwise noted, 

the elements for the respective claims under each state’s law (Massachusetts, 

California, Texas, Florida, and Colorado) do not differ in a material manner.5 

5 In addition, to the extent we cite persuasive authority from other jurisdictions, such 

courts also were analyzing state law claims that are substantially similar to those at issue 

here. 
23

B. Plaintiffs’ Fraud and Negligent Misrepresentation Claims

Plaintiffs have alleged two types of affirmative misrepresentations

sounding in fraud and negligent misrepresentation: those regarding fantasy 

baseball and those regarding real-life major league baseball.

Common law fraud requires a (1) material misrepresentation or omission,

(2) with knowledge of its falsity, (3) for the purpose of inducing an action by 

plaintiffs, (4) that was reasonably relied upon, and (5) that caused injury. See Small 

v. Fritz Cos., Inc., 65 P.3d 1255, 1258 (Cal. 2003); Bristol Bay Prods., LLC v. Lampack, 

312 P.3d 1155, 1160 (Colo. 2013); Balles v. Babcock Power Inc., 70 N.E.3d 905, 913 

(Mass. 2017); Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 

S.W.2d 41, 47–48 (Tex. 1998).6 The elements of negligent misrepresentation are: 

(1) misrepresentation of a material fact, (2) without reasonable grounds for 

believing it to be true, (3) with the intent to induce another’s reliance, (4) that was 

reasonably relied upon, and (5) that caused injury. See Fox v. Pollack, 226 Cal. Rptr. 

532, 537 (Cal. Ct. App. 1986); Allen v. Steele, 252 P.3d 476, 482 (Colo. 2011) (en banc); 

6 Florida law does not include reasonable, or justifiable, reliance as a necessary element 

of a fraudulent misrepresentation claim (although it does require justifiable reliance for 

negligent misrepresentation claims); rather, only actual reliance is required. See Butler v. 

Yusem, 44 So.3d 102, 105 (Fla. 2010). 
24

Arlington Pebble Creek, LLC v. Campus Edge Condo. Ass’n, Inc., 232 So. 3d 502, 505 

(Fla. Dist. Ct. App. 2017); Nota Constr. Corp. v. Keyes Assocs., Inc., 694 N.E.2d 401, 

405 (Mass. App. Ct. 1998); Willis v. Marshall, 401 S.W.3d 689, 698 (Tex. App. 2013).7 

a. Alleged Affirmative Misrepresentations about Fantasy Baseball

Plaintiffs allege that defendants made actionable misrepresentations related 

to fantasy baseball. In particular, plaintiffs point to a statement by Commissioner 

Manfred in October 2015 that he was “quite convinced [MLB DFS contests are] 

game[s] of skill, as defined by the federal statute.” Joint App’x at 246, 462. In 

addition, plaintiffs rely upon a provision of the DraftKings Terms of Use 

characterizing the MLB DFS contests as “contests of skill,” which plaintiffs assert 

can be attributed to defendants by virtue of their business arrangement with 

DraftKings. Joint App’x at 503. Plaintiffs assert that these were misrepresentations 

because electronic sign-stealing deprived fantasy baseball contestants of the ability 

to exercise their skill in selecting players and, instead, essentially converted the 

contests to being based on random chance. 

In its thorough opinions, the district court found several pleading defects 

with respect to these alleged affirmative misrepresentations about fantasy 

7 As discussed infra, Massachusetts, Colorado, and Texas law also require additional 

elements.
25

baseball. With respect to the reference to “games of skill” in DraftKings’ Terms of 

Use, the district court held that the language at issue referred to the skill and 

knowledge of the fantasy sports bettors (and were not about the fantasy baseball 

contests themselves) and, in any event, the SAC failed to plausibly allege how this 

statement by DraftKings constituted a statement by any defendant. Olson II, 447 

F. Supp. 3d at 178. However, we need not address the nature of the alleged 

business arrangement between defendants and DraftKings because we conclude 

that, even assuming that each of these statements in the Terms of Use could be 

attributed to defendants, plaintiffs have failed to plausibly allege how such 

statements regarding fantasy baseball contests being “games of skill” or “contests 

of skill” are false even with the existence of electronic sign-stealing. See McCall v. 

Pataki, 232 F.3d 321, 323 (2d Cir. 2000) (holding that we are “free to affirm an 

appealed decision on any ground which finds support in the record, regardless of 

the ground upon which the trial court relied” (citation omitted)). Moreover, any 

such statement regarding whether fantasy baseball is a “game of skill” or “contest 

of skill” is a non-actionable opinion.

The statements at issue merely reference the UIGEA, which differentiates 

permissible gaming activity from illegal gambling and defines permissible gaming 
26

activity to include contests in which “winning outcomes reflect the relative 

knowledge and skill of the participants and are determined predominantly by 

accumulated statistical results of the performance of individuals . . . in multiple 

real-world sporting . . . events.” 31 U.S.C. § 5362(1)(E)(ix)(II). It is important to 

note that the “skill” referenced here is the ability of the fantasy baseball 

participants to select players, not the skill level of the real-life players themselves. 

Moreover, the existence of numerous variables in real-life baseball, including rules 

violations (whether intentional or unintentional), does not mean that MLB DFS 

contests do not involve the skill of the fantasy baseball participants. The skill in 

participating in an MLB DFS contest lies not in any assurances of on-field 

performance, but rather in choosing a lineup based on considerations of the

innumerable, widely-known variables that could impact player performance, such 

as weather, injuries, umpiring, cheating, and many more. Indeed, one could even 

argue that factoring in potential cheating or rules violations that could occur 

during the game itself could implicate a degree of additional skill by MLB DFS 

contest participants. Thus, any statements that can fairly be attributed to 

defendants about the fantasy baseball contests being “games of skill” or “contests 
27

of skill” are not rendered plausibly false due to the existence of rules violations, 

including electronic sign-stealing.8

In any event, such statements are non-actionable because whether fantasy 

baseball is a “game of skill” or “contest of skill” is a statement of opinion, rather 

than a statement of fact. See, e.g., Cicone v. URS Corp., 227 Cal. Rptr. 887, 891–92 

(Cal. Ct. App. 1986) (“[T]he representation must ordinarily be an affirmation of 

fact. A misrepresentation of law is ordinarily not actionable in the absence of a 

confidential relationship or other special circumstance. The theory is either that 

everyone is bound to know the law, or that a statement regarding the law is a mere 

opinion on which one may not rely.” (citations omitted)); Brodeur v. Am. Home 

Assurance Co., 169 P.3d 139, 153 (Colo. 2007) (en banc) (“[A] representation of law 

is a statement of opinion as to what the law permits or prohibits, and cannot 

support an action for fraud.”); Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So. 2d 

8 Plaintiffs suggest that the meaning of the phrase “contest of skill” should not be tied to 

the statutory definition of a “game of skill” under the UIGEA, but should be analyzed 

using the “common sense meaning of the words” in that “contestants’ skill, inter alia, in 

selecting players, managing the salary cap and choosing the contests in which to 

participate would substantially control whether they won or lost.” Appellants’ Reply Br. 

to MLB at 21. Even assuming that plaintiffs’ definition were used for analyzing the 

alleged misrepresentations, the skill of contestants in selecting real-life players does not 

dissipate when there are rules violations. Contestants still have complete control over 

those player selections, which will dictate whether they win or lose, and must use their 

skills to account for any variables, known and unknown, that can affect player 

performance. Thus, none of the statements are plausibly false even under that definition. 
28

168, 172 (Fla. Dist. Ct. App. 1994) (“A claim of fraudulent misrepresentation is not 

actionable if premised on a mere opinion, rather than a material fact.”); Zimmerman 

v. Kent, 575 N.E.2d 70, 75 (Mass. App. Ct. 1991) (“A statement on which liability 

for misrepresentation may be based must be one of fact, not of expectation, 

estimate, opinion, or judgment.”); Fina Supply, Inc. v. Abilene Nat’l Bank, 726 S.W.2d 

537, 540 (Tex. 1987) (explaining “the general rule that misrepresentations 

involving a point of law or the legal effect of a document will not support an action 

for fraud”).

Accordingly, plaintiffs have failed to state a plausible misrepresentation 

about fantasy baseball by defendants.

b. Alleged Affirmative Misrepresentations about Real-Life Baseball

Plaintiffs also plead numerous alleged misstatements against all defendants 

in relation to real-life major league baseball including, inter alia, the following: (1) 

Commissioner Manfred’s repeated public statements reassuring the public about 

MLB’s commitment to maintaining the integrity and honesty of baseball; (2) a 

statement from the 2017 Press Release by Commissioner Manfred which suggested 

that the Yankees had only engaged in a minor “technical” violation of the rules, as 

opposed to an electronic sign-stealing scheme as alleged by plaintiffs; (3) twelve 
29

specific statements by Astros’ players and managers, including denials that the 

Astros were involved in any electronic sign-stealing schemes; (4) the Team 

Defendants’ agreement to be bound by the MLB Constitution and to follow MLB 

rules and regulations; and (5) repeated statements by the Red Sox attributing the 

team’s success to player talent or other legitimate baseball factors instead of 

electronic sign-stealing.

Similar to the alleged misrepresentations about fantasy baseball contests 

being “games of skill,” the district court found a number of pleading defects as to 

these alleged misrepresentations about real-life major league baseball. For 

instance, the district court held that plaintiffs failed to plausibly allege how 

Commissioner Manfred’s public statements about maintaining the integrity of 

baseball, or statements by Astros and Red Sox players and officials about the 

sources of various players’ or teams’ successes in a game, were false. Olson I, 447 

F. Supp. 3d at 166. In particular, with respect to Commissioner Manfred’s 

statements about a commitment to the integrity of the game, the district court 

found that none of the statements were plausibly false because (1) plaintiffs’ theory 

was “contradicted by the complaint’s own description of various investigations 

and public disclosures that the MLB did in fact undertake,” and (2) “[m]ore 
30

importantly, even accepting as true plaintiffs’ contention that defendants 

inadequately investigated player misconduct, such a fact is not inconsistent with 

a ‘commitment’ to integrity.” Id. More generally, the district court concluded that 

plaintiffs “did not, and could not, allege the reliance necessary to support their 

fraud or negligent misrepresentation claims.” Olson II, 447 F. Supp. 3d at 179.

However, we need not address all of these various grounds for dismissal 

articulated by the district court because we find that dismissal is warranted on this 

portion of the fraud claims for the following two reasons. 

First, with respect to alleged statements regarding the integrity of the game, 

we conclude that such generalized statements are not actionable as a matter of law. 

See, e.g., City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 

183 (2d Cir. 2014) (holding that “[i]t is well-established that general statements 

about . . . integrity” are “too general” to be material); cf. MDVIP, Inc. v. Beber, 222 

So.3d 555, 561 (Fla. Dist. Ct. App. 2017) (“A promise to deliver an ‘exceptional’ 

product or service is a matter of opinion rather than fact, and constitutes nonactionable puffery.”); Fitzgerald v. Water Rock Outdoors, LLC, 536 S.W.3d 112, 118 

(Tex. App. 2017) (holding that statements that a company “is a high quality custom 

homebuilder with years of experience, is hardworking and honest, and employs 
31

top-quality subcontractors . . . were not material misstatements but were merely 

‘puffing’ or opinion and, as such, cannot constitute actionable fraud”). 

Moreover, as to the more specific alleged misrepresentations, including 

those related to player/team performance and electronic sign-stealing, we 

conclude that any fraud claims based upon such alleged misrepresentations also 

cannot survive a motion to dismiss because they each share the same fundamental 

flaw, which the district court also identified—that is, plaintiffs failed to plausibly 

allege the requisite element of reliance. 

As noted above, with the exception of Florida law, which requires only 

actual reliance, a claim of fraud under the laws of plaintiffs’ respective home states 

requires a showing of “actual and justifiable reliance.” Gulf Liquids New River 

Project, LLC v. Gulsby Eng’g, Inc., 356 S.W.3d 54, 74 (Tex. App. 2011); see also OCM 

Principal Opportunities Fund, L.P. v. CIBC World Mkts. Corp., 68 Cal. Rptr. 3d 828, 

855–56 (Cal. Ct. App. 2007). “It is not . . . necessary that [a plaintiff’s] reliance upon 

the truth of the fraudulent misrepresentation be the sole or even the predominant 

or decisive factor in influencing his conduct. . . . It is enough that the 

representation has played a substantial part, and so has been a substantial factor, 

in influencing his decision.” Engalla v. Permanente Med. Grp., Inc., 938 P.2d 903, 919 
32

(Cal. 1997) (quoting Restatement (Second) of Torts § 546 cmt. b (Am. L. Inst. 1977)); 

accord STE Fin. Corp. v. Popkin, No. 9118, 1991 WL 285754, at *4 (Mass. App. Ct. 

Dec. 23, 1991). “[A] presumption, or at least an inference, of reliance arises 

wherever there is a showing that a misrepresentation was material.” Engalla, 938 

P.2d at 919. However, conclusory allegations—vague awareness or reliance—

cannot support a claim for fraud and therefore warrant dismissal of such a claim 

even at the motion to dismiss stage. See Mirkin v. Wasserman, 858 P.2d 568, 570 

(Cal. 1993) (“In attempting to plead actual reliance, which is an element of th[e]

torts [of deceit and negligent misrepresentation], plaintiffs alleged in conclusory 

fashion that they had purchased Maxicare securities ‘in reliance upon said 

misrepresentations.’ Defendants demurred on the ground that the allegation of 

reliance was insufficient. . . . [T]he court sustained the demurrers with leave to 

amend.” (internal citations omitted) (emphasis added)); see generally Ashland Inc. 

v. Morgan Stanley & Co., 652 F.3d 333, 339 (2d Cir. 2011) (affirming dismissal of 

fraud claims because “even accepting as true all of the facts alleged in the 

[operative complaint], appellants’ Section 10(b) claim fails due to their inability to 

plead reasonable reliance on the alleged misrepresentations”). 
33

As set forth below, even under the liberal pleading standard of Rule 8, 

plaintiffs failed to plausibly plead actual or reasonable reliance as to any of the 

alleged specific misrepresentations regarding team/player performance or 

electronic sign-stealing. Thus, the fraud claims were properly dismissed.9

With respect to actual reliance, the district court correctly noted that the 

FAC contained no allegation that plaintiffs “saw, read, or otherwise noticed” any 

of the actionable misrepresentations. Olson I, 447 F. Supp. 3d at 167 (quoting In re 

Fyre Festival Litig., 399 F. Supp. 3d 203, 217 (S.D.N.Y. 2019)). Plaintiffs try to cure 

this pleading defect, as it related to the specific statements regarding electronic 

sign-stealing, by adding an allegation in the proposed SAC that Olson relied upon

Commissioner Manfred’s statement quoted in the 2017 Press Release as well as 

Commissioner Manfred’s October 2018 public statement. Plaintiffs, however,

were forced to withdraw Olson’s allegation that he relied on the September 2017 

9 The parties dispute whether the stricter particularity requirement of Rule 9(b) applies 

to the reliance element for common law fraud claims. We have never addressed that 

precise issue. See SRM Glob. Master Fund Ltd. P’ship v. Bear Sterns Cos., 829 F.3d 173, 177 

n.4 (2d Cir. 2016) (“Because the complaint fails to meet the Twombly pleading standard, 

we do not consider whether the stricter pleading requirements of Federal Rule of Civil 

Procedure 9(b) apply to the reliance element of [plaintiff’s] common law fraud claims.”). 

However, we need not reach that issue here because we conclude that plaintiffs have

failed to plausibly plead reliance for the fraud claims under the Twombly standard 

pursuant to Rule 8.
34

and October 2018 alleged misstatements because he had stopped playing MLB 

DFS contests in August 2017. Since no other named plaintiff is alleged to have 

relied upon those statements specifically, plaintiffs have failed to sufficiently plead 

actual reliance upon them. 

Similarly, as to the alleged misrepresentations made by the Team 

Defendants about performance or electronic sign-stealing, plaintiffs did not allege,

in either their FAC or their proposed SAC, that any of the named plaintiffs actually 

saw, read, or heard the alleged misstatements made by the members of the Astros 

or Red Sox, and thus failed to adequately plead reliance. See, e.g., Van de Velde v. 

Coopers & Lybrand, 899 F. Supp. 731, 738–39 (D. Mass. 1995) (under Massachusetts 

law, dismissing claims of fraud and negligent misrepresentation for failure to 

plead actual reliance).

Even assuming, arguendo, that plaintiffs adequately alleged that they relied 

upon specific statements regarding player/team performance or electronic signstealing by Commissioner Manfred or the Team Defendants, plaintiffs also failed 

to plausibly allege that any reliance on those statements, in playing MLB DFS 

contests, was reasonable. “Besides actual reliance, [a] plaintiff must also show 

‘justifiable’ reliance, i.e., circumstances were such to make it reasonable for plaintiff 
35

to accept defendant’s statements without an independent inquiry or 

investigation.” Wilhelm v. Pray, Price, Williams & Russell, 231 Cal. Rptr. 355, 358

(Cal. Ct. App. 1986). Although reasonableness of reliance is generally a question 

for the jury, courts may resolve this issue as a question of law where no reasonable 

person could believe the type of misstatement alleged. See All. Mortg. Co. v. 

Rothwell, 900 P.2d 601, 609 (Cal. 1995) (en banc) (“[W]hether a party’s reliance was 

justified may be decided as a matter of law if reasonable minds can come to only 

one conclusion based on the facts.” (citation omitted)). 

Here, plaintiffs assert a right not just to rely upon the assertion that the MLB 

DFS contests would be determined in accordance with actual performance metrics, 

but also to rely upon those metrics being made in compliance with MLB rules and 

regulations. However, plaintiffs could not plausibly rely upon the type of 

misstatements alleged in this case to reasonably conclude that their participation 

in MLB DFS contests through the use of real-life player statistics would not be 

impacted by rules violations like electronic sign-stealing.

Our holding today is consistent with the conclusion of numerous other 

courts around the nation that have found that fraud and related claims brought by 

disappointed sports fans—whether about poor performance or rule violations—
36

cannot survive a motion to dismiss. See, e.g., In re Pacquiao-Mayweather Boxing 

Match Pay-Per-View Litig. (“Pacquiao”), 942 F.3d 1160, 1171–72 (9th Cir. 2019) 

(collecting cases); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); Bowers v.

Fédération Internationale de l’Automobile, 489 F.3d 316, 322, 325 (7th Cir. 2007); Oliver 

v. Houston Astros, LLC, No. 220-cv-00283, 2020 WL 1430382, at *3 (D. Nev. Mar. 23, 

2020), aff’d, 2020 WL 2128656 (D. Nev. May 5, 2020); Le Mon v. Nat’l Football League, 

277 So. 3d 1166, 1168 (La. 2019); Castillo v. Tyson, 701 N.Y.S.2d 423, 423 (N.Y. App. 

Div. 2000). 

Although many of these cases addressed the limits of the contractual rights 

of ticketholders, several of these decisions dismissed fraud-related claims. They 

also more broadly rejected the ability of disappointed ticketholders to bring such 

claims based on alleged cheating or some other alleged deficiency in the 

competition itself, because any alleged reliance would be unreasonable as a matter 

of law. See, e.g., Pacquiao, 942 F.3d at 1170 n.7; Mayer, 605 F.3d at 234–36; Bowers, 

489 F.3d at 324; Castillo, 701 N.Y.S.2d at 423.

For example, in Mayer, a season ticketholder brought a lawsuit against the 

National Football League and the New England Patriots football team alleging, 

among other things, common law and statutory fraud claims arising out of the 
37

team’s purported practice of surreptitiously videotaping the signals of opposing 

teams—often referred to as “Spygate.” 605 F.3d at 225, 228. The Third Circuit held 

that, under New Jersey law, the season ticketholder suffered no cognizable injury 

to a legally protected right or interest. Id. at 236. In particular, after reviewing the 

“overwhelming weight of the case law” supporting that decision, the Third Circuit 

explained:

[W]e do recognize that [plaintiff] alleged that he was the victim, not 

of mere poor performance by a team or its players, but of a team's 

ongoing acts of dishonesty or cheating in violation of the express rules 

of the game. Nevertheless, there are any number of often complicated 

rules and standards applicable to a variety of sports, including 

professional football. It appears uncontested that players often 

commit intentional rule infractions in order to obtain an advantage 

over the course of the game. For instance, a football player may 

purposefully commit pass interference or a “delay of game.” Such 

infractions, if not called by the referees, may even change the outcome 

of the game itself. There are also rules governing the off-field conduct 

of the football team, such as salary “caps” and the prohibition against 

“tampering” with the employer-employee relationships between 

another team and its players and coaches. [Plaintiff] further does not 

appear to contest the fact that a team is evidently permitted by the 

rules to engage in a wide variety of arguably “dishonest” conduct to 

uncover an opponent’s signals. For example, a team is apparently free 

to take advantage of the knowledge that a newly hired player or coach 

takes with him after leaving his former team, and it may even have 

personnel on the sidelines who try to pick up the opposing team’s 

signals with the assistance of lip-reading, binoculars, note-taking, and 

other devices. In addition, even [plaintiff] acknowledged in his 

amended complaint that “[t]eams are allowed to have a limited 

number of their own videographers on the sideline during the game.” 
38

Id. (citation omitted). The court emphasized that, “[a]t least in this specific context, 

it is not the role of judges and juries to be second-guessing the decision taken by a 

professional sports league purportedly enforcing its own rules.” Id. at 237; see also 

Ryan v. Nat’l Football League, Inc., No. 19-CV-1811, 2019 WL 3430259, at *5 (E.D. La. 

July 30, 2019) (finding that the NFL Constitution and Official Playing Rules were 

adopted for the benefit of the member clubs of the NFL and not intended to be 

relied upon by plaintiffs—fans—and that reliance on the same was not reasonable 

or justified).

In Pacquiao, the Ninth Circuit likewise affirmed the dismissal of claims for, 

inter alia, common law and statutory fraud brought by ticketholders to the 2015 

boxing match between Emmanuel “Manny” Pacquiao and Floyd Mayweather, Jr. 

942 F.3d at 1164. In particular, plaintiffs claimed that defendants (including the 

fight organizers and promoters) knew that Pacquiao was injured and concealed 

that injury, that plaintiffs would not have purchased tickets if they had known that 

Pacquiao was “damaged goods,” and that the fight was a “magnificent con.” Id. 

In holding that there was no cognizable claim, the Ninth Circuit explained that 

“although boxing fans—like all sports fans—can reasonably expect a regulation 

match, they also reasonably anticipate a measure of unpredictability that makes 
39

spectator sports exciting.” Id. at 1169. Thus, “[w]hatever subjective expectations 

Plaintiffs had before the match did not negate the very real possibility that the 

match would not, for one reason or another, live up to those expectations.” Id. at 

1170.

Similarly, in Bowers, the Seventh Circuit addressed claims brought by 

spectators to a Formula One race who sued because twenty cars were scheduled 

to race, but fourteen cars withdrew after it was discovered that they had a 

dangerous tire problem. 489 F.3d at 319. Among the claims brought by the 

plaintiff ticketholders was a promissory estoppel claim, in which they asserted 

that they relied upon the advertising and promotional material that indicated 

twenty cars would drive in the race. Id. at 324. In rejecting this claim (along with 

the other claims), the Seventh Circuit concluded that “no reasonable promoter or 

racing fan would have regarded a race’s ‘advertising and promotion’ concerning 

the number of cars scheduled to roll as a promise upon which someone could 

reasonably rely.” Id. The court further explained:

[S]ports fans had to understand that numerous events could prevent 

a full complement of twenty cars from racing at a particular location 

on a particular day—dangerous track conditions, a driver’s sudden 

illness, an accident in shipping a car to the track, any number of 

things, including the possibility that, for some reason, a driver might 

refuse to race. If the plaintiffs indeed went to Indianapolis only 
40

because they took the defendants’ advertising as a reliable promise 

that twenty drivers, no fewer, would compete, they acted 

unreasonably.

Id.; see also Le Mon, 277 So.3d at 1169 (holding that “plaintiffs—ticket holders who 

attended the NFL Championship games—have no right to recover damages for 

fraud and deceptive trade practices allegedly committed by the NFL and its 

officials during the game”); Castillo, 701 N.Y.S.2d at 423 (affirming dismissal of 

claims brought by pay-per-view fans for, among other things, fraud and negligent 

misrepresentation seeking a refund for fight in which boxer was disqualified for 

biting his opponent’s ear).

We recognize that plaintiffs are not suing as ticketholders or pay-per-view 

fans, but rather as participants in a fantasy sports contest that uses real-game

statistics. However, the analysis of these cases, especially as it relates to reasonable 

expectations regarding the competition itself, applies with equal—if not greater—

force here because, as acknowledged at oral argument, plaintiffs are an additional 

step removed from the baseball game itself when compared to paying 

ticketholders or viewers. See also Oliver, 2020 WL 1430382, at *3–4 (dismissing 

RICO and unjust enrichment claims brought by plaintiff who lost sports bets that 

the Los Angeles Dodgers would win the 2017 and 2018 World Series and who had
41

argued that he was the victim of fraud because the Astros and the Red Sox had 

engaged in sign-stealing). In other words, just as a ticketholder should have no 

reasonable expectation that he or she will see a game that is free of poor 

performance or rule violations, a fantasy sports participant similarly should have 

no such expectation in utilizing the statistics from that game. See also id. at *2 (“In 

the hyper-competitive world of professional sports, where hard-working athletes 

are heroes to children and adults alike, it is no secret that athletes will sometimes 

disappoint their fans by acting unethically to gain a perceived edge.”). 

Over the years, baseball has had to address many forms of cheating—such 

as spit balls, steroids, cork bats, and the list goes on and on—that are part of not 

only baseball, but every sport. In fact, as the Third Circuit noted, many forms of 

“arguably ‘dishonest’ conduct” in professional football are not prohibited by the 

rules at all. Mayer, 605 F.3d at 236. More specifically, here, non-electronic signstealing, which could also affect statistics, is not even new or outlawed; only 

electronic sign-stealing is. Put another way, it is highly implausible that fantasy 

baseball participants could reasonably rely upon a purported lack of electronic 

sign-stealing in participating in the DraftKings’ contest, when non-electronic signstealing is not even prohibited by MLB rules. 
42

In sum, given the lack of plausible allegations of actual or reasonable 

reliance (even when the proposed SAC is considered), we conclude that the district 

court properly dismissed the fraud and negligent misrepresentation claims based 

on the alleged affirmative misrepresentations.

c. Alleged Misrepresentation by Omission

Plaintiffs also assert a misrepresentation by omission theory based on the 

premise that plaintiffs would not have entered into the MLB DFS contests if 

defendants had not concealed the sign-stealing schemes and the corrupting of the 

statistics on which the MLB DFS contests were based. The district court found that 

plaintiffs failed to identify any duty owed to them by defendants. We agree.

Fraud by omission, at its core, requires a showing (1) that plaintiff and 

defendant have a relationship giving rise to a duty to disclose, and (2) that the 

concealed information is material. See Wood v. Motorola Mobility, Inc., No. C-11-

04409, 2012 WL 892166, at *8–9 (N.D. Cal. Mar. 14, 2012); Berger v. Sec. Pac. Info.

Sys., Inc., 795 P.2d 1380, 1383–84 (Colo. App. 1990); Gutter v. Wunker, 631 So. 2d 

1117, 1118 (Fla. Dist. Ct. App. 1994); accord Buffalo-Water 1, LLC v. Fid. Real Estate 

Co., LLC, 111 N.E.3d 266, 277 (Mass. 2018); Bradford v. Vento, 48 S.W.3d 749, 755 

(Tex. 2001). Under Restatement Second of Torts Section 551(2):
43

[o]ne party to a business transaction is under a duty to 

exercise reasonable care to disclose to the other before the 

transaction is consummated, (a) matters known to him 

that the other is entitled to know because of a fiduciary 

or other similar relation of trust and confidence between 

them; and (b) matters known to him that he knows to be 

necessary to prevent his partial or ambiguous statement 

of the facts from being misleading; and (c) subsequently 

acquired information that he knows will make untrue or 

misleading a previous representation that when made 

was true or believed to be so; and (d) the falsity of a 

representation not made with the expectation that it 

would be acted upon, if he subsequently learns that the 

other is about to act in reliance upon it in a transaction 

with him; and (e) facts basic to the transaction, if he 

knows that the other is about to enter into it under a 

mistake as to them, and that the other, because of the 

relationship between them, the customs of the trade or 

other objective circumstances, would reasonably expect 

a disclosure of those facts. 

Restatement (Second) of Torts § 551(2) (Am. L. Inst. 1977).10 According to 

plaintiffs, defendants had a duty to disclose to prevent prior partial or ambiguous 

statements from being misleading and a duty to disclose to provide updates when 

10 The Supreme Court of Texas has never adopted the general duty to disclose facts in a 

commercial setting under Section 551 of the Second Restatement of Torts. Bradford, 48 

S.W.3d at 755. “A duty to disclose arises only out of a confidential or fiduciary 

relationship.” Beverick v. Koch Power, Inc., 186 S.W.3d 145, 153 (Tex. Ct. App. 2005). 

Despite plaintiffs’ contention that the MLB-DraftKings Agreement created a relationship 

giving rise to a duty to disclose, no such fiduciary relationship is alleged to exist between 

the Astros and plaintiffs. In any event, as discussed infra, plaintiffs’ claim fails even if the 

broader standard under Section 551(2) is applied. Thus, in our analysis, we assume,

arguendo, that the Section 551(2) standard applies to fraudulent non-disclosure claims 

brought in each plaintiff’s home state.
44

they subsequently acquired information rendering a prior representation untrue 

or misleading under Section 551(2) of the Second Restatement of Torts. 

The parties dispute whether the relationship between them here meets the 

threshold requirement of Section 551(2) of the Second Restatement of Torts. That 

provision applies only “to parties that have entered into business transactions.” In 

re Rumsey Land Co., LLC, 944 F.3d 1259, 1274 (10th Cir. 2019) (interpreting Colorado 

law and affirming that § 551(2) did not apply because there was no contract, 

employment, or other relationship giving rise to a duty to disclose); accord Brass v. 

Am. Film Techs., Inc., 987 F.2d 142, 151 (2d Cir. 1993). Defendants argue, as the 

district court concluded, that Section 551(2) does not apply to defendants because 

they were not party to the MLB DFS transaction between plaintiffs and DraftKings. 

Plaintiffs contend that the district court erred in its conclusion because “courts in 

plaintiffs’ home states have made clear that § 551(2) does not require ‘privity’ 

between parties, and that parties who are indirectly involved in a transaction are 

nonetheless subject to § 551(2).” Appellants’ Br. at 57. 

However, we need not reach this question because, even assuming,

arguendo, the parties were “part[ies] to a business transaction” under the meaning 

of Section 551(2), the omitted facts at issue are not basic to the transaction and, 
45

thus, no duty to disclose arises under Section 551(2). As stated in comment j to 

§ 551(2)(e):

A basic fact is a fact that is assumed by the parties as a 

basis for the transaction itself. It is a fact that goes to the 

basis, or essence, of the transaction, and is an important 

part of the substance of what is bargained for or dealt 

with. Other facts may serve as important and persuasive 

inducements to enter into the transaction, but not go to 

its essence. These facts may be material, but they are not 

basic. 

Restatement (Second) of Torts § 551(2)(e) cmt. j (Am. L. Inst. 1977). Basic facts go 

beyond “those that are simply material.” Wolf v. Prudential-Bache Secs., Inc., 672 

N.E.2d 10, 12 (Mass. App. Ct. 1996) (finding no duty to disclose). Instead, cases 

where that rule has been found applicable have been “those in which the 

advantage taken of the plaintiff’s ignorance is so shocking to the ethical sense of 

the community, and is so extreme and unfair, as to amount to a form of swindling, 

in which the plaintiff is led by appearances into a bargain that is a trap, of whose 

essence and substance he is unaware.” Restatement (Second) of Torts § 551(2)(e) 

cmt. l (Am. L. Inst. 1977). 

No facts have been alleged here that would give rise to a plausible duty to 

disclose under this standard. Plaintiffs argue that “the integrity of MLB’s player 

performance statistics—the principal basis for success or failure in the [MLB DFS]
46

contests—was ‘basic’ to plaintiffs’ decisions to pay entry fees to participate in those 

contests, and the corruption of those statistics was, therefore, also ‘basic.’” 

Appellants’ Br. at 56 (quoting Restatement (Second) of Torts § 551(2)(e) cmt. j (Am. 

L. Inst. 1977)). Thus, plaintiffs seek to create a broad and all-encompassing duty

that, in essence, would require defendants to disclose as a “basic fact” anything

that could affect the integrity of MLB players’ performance statistics. Such an 

expansive interpretation of the duty to disclose in this context, which is 

unsupported by any case authority, would open the courthouse doors to a wide 

range of claims that would require courts to draw unmanageable lines between 

types of undisclosed facts. Disappointed ticketholders, sports bettors, and others 

financially impacted (directly or indirectly) by the outcome of sporting events 

could sue over every type of undisclosed fact about teams and players, which 

plaintiffs could argue would have altered their decision to pay money in 

connection with the event. 

In Mayer, the Third Circuit noted the endless litigation that could result from 

requiring a duty to disclose in these situations and rejected such a requirement:

[T]here appear to be no real standards or criteria that a legal decisionmaker may use to determine when a particular rule violation gives 

rise to an actionable claim or should instead be accepted as a usual 

and expected part of the game. At the very least, a ruling in favor of 
47

[plaintiff] could lead to other disappointed fans filing lawsuits 

because of “a blown call” that apparently caused their team to lose or 

any number of allegedly improper acts committed by teams, coaches, 

players, referees and umpires, and others. This Court refuses to 

countenance a course of action that would only further burden 

already limited judicial resources and force professional sports 

organizations and related individuals to expend money, time, and 

resources to defend against such litigation.

605 F.3d at 237; see also Pacquiao, 942 F.3d at 1171 (“Plaintiffs’ theory would require 

all professional athletes to affirmatively disclose any injury—no matter how 

minor—or risk a slew of lawsuits from disappointed fans. Such a result would 

fundamentally alter the nature of competitive sports: Opponents would 

undoubtedly use such information to their strategic advantage, resulting in fewer 

games and matches won through fair play, and gone would be the days of athletes 

publicly declaring their strength and readiness for fear of a lawsuit alleging that 

fans were misled.”). 

We similarly reject plaintiffs’ broad interpretation of a duty to disclose 

under the circumstances of this case. The fact that all MLB DFS contestants had 

access to player statistics was “basic” to the transaction, but the actions of the reallife players and coaches were not. Put differently, MLB DFS contestants did not 

bargain for statistics that were unaffected by real-life variables, including rules 

violations; to the contrary, as discussed in the context of reasonable reliance, it is 
48

“basic” to MLB DFS contests, and entirely foreseeable, that real-game statistics 

would be affected by such variables. And, in any event, there is no indication that 

the statistics were inaccurate, because they properly reflected the events that took 

place on the field.11 Therefore, no duty to disclose such violations exists in this 

particular context, and the fraud by omission claim was properly dismissed. 

In reaching this decision, we emphasize that our analysis is limited to 

alleged misrepresentations and omissions by participants related to the athletic 

competition itself, including topics such as performance, game strategy, and 

compliance with the rules. We recognize that plausible fraud claims may exist in 

other cases with respect to statements or omissions unrelated to the core athletic 

competition, such as the financial health of a league/team or innumerable other 

business-related matters that are part of the sports industry, and our holding in no 

way addresses such claims. See, e.g., Charpentier v. L.A. Rams Football Co., 89 Cal. 

Rptr. 2d 115, 117–19, 122–24 (Cal. Ct. App. 1999) (holding that season-ticket holder 

11 In other words, the contestants are applying their skill in determining which players

to select on a given day based on the players’ actual past performance, and the

contestants’ success will be judged by the players’ actual performance during the period

covered by the fantasy contest. The effect of player cheating on that contest is no different 

than any one of a number of unpublicized variables that could affect a player’s 

performance, such as whether the player slept poorly the night before, is distracted by 

worries about a child’s illness, or has a superstitious reaction to something that occurred 

on the way to the ballpark that saps his confidence.
49

stated a cause of action for fraud and deceit based upon alleged 

misrepresentations by Los Angeles Rams about their lack of intention to relocate 

the team and the absence of discussions with other cities); Beder v. Cleveland 

Browns, Inc., 717 N.E.2d 716, 718–19, 722–23 (Ohio Ct. App. 1998) (holding that 

disputed issue of fact precluded summary judgment on fraudulent inducement 

claim brought by season ticketholders against Cleveland Browns related to alleged 

misrepresentation about team’s intention to relocate to another city); Skalbania v. 

Simmons, 443 N.E.2d 352, 353, 359 (Ind. Ct. App. 1982) (holding that class action

was properly certified where season ticketholders alleged that hockey team 

misrepresented its financial ability to finish the season in order to increase seasonticket sales, and then ceased operation after only 13 of 40 scheduled home games 

had been played); see also In re Pacquiao-Mayweather Boxing Match Pay-Per-View 

Litig., No. 2:15-ml-02639,2017 WL 6520608, at *9 (C.D. Cal. Aug. 25, 2017) (“If a 

sports team makes a misrepresentation concerning its business strategy or 

financial health, for instance, and fans detrimentally rely on that 

misrepresentation, the fans may have a valid claim against the team, just as they 

would in any other non-sports context. The only claims to be barred under the 

Court’s framework are those based on a narrow set of misrepresentations or 
50

omissions that cut to the core of athletic competition.”), aff’d, 942 F.3d 1160 (9th

Cir. 2019).12 

C. Plaintiffs’ Consumer Protection Claims

Plaintiffs also assert claims for deceptive and unfair trade practices under 

their home state consumer fraud statutes. In particular, the FAC alleges that 

defendants actively marketed and promoted the MLB DFS contests—inducing 

consumers to participate in such contests—and that defendants concealed that the 

statistics plaintiffs purportedly relied upon were “unreliable.” Although the 

district court found dismissal warranted due to a failure to satisfy the heightened 

pleading requirement of Rule 9(b), the district court independently dismissed the 

claims because plaintiffs failed “to identify a sufficient nexus between the

transaction that allegedly harmed them and the defendants to support a consumer 

protection claim.” Olson I, 447 F. Supp. 3d at 171. 

On appeal, plaintiffs contend that the district court “failed to acknowledge 

repeated allegations in the Complaint that defendants were not merely ‘a passive 

12 Similarly, we have no occasion here to consider the legal viability of a hypothetical 

claim that a league, team official, or others associated with a sport refrained from 

addressing instances of cheating for the purpose of participating in a fantasy contest

based on inside knowledge that certain players were violating the rules to enhance their 

performance.
51

investor,’ that they ‘actively’ and ‘aggressively’ marketed the contests, engaging 

in ‘promotion, marketing and participation in inducing members of the public to 

engage’ in the [MLB DFS] transactions.” Appellants’ Br. at 36 (citations and 

emphasis omitted). Defendants counter that “[t]he common theme in all of the 

cases Plaintiffs cite is that liability under state consumer protection statutes will 

not lie unless the defendant had a direct hand in the allegedly unfair or deceptive 

transaction,” which defendants contend is absent here. MLB Defs.’ Br. at 54–55. 

However, we may affirm on any ground supported by the record, see In re Arab 

Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 157 (2d Cir. 2015), as amended (Dec. 

17, 2015), aff’d on other grounds sub nom. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386

(2018), and hold that, even if that requisite nexus is met, plaintiffs have failed to 

adequately allege an unfair or deceptive practice that can survive a motion to 

dismiss. 

To state a claim under the consumer protection statutes of plaintiffs’ home 

states,13 plaintiffs must allege (1) a cognizable injury (2) caused by (3) an unfair or 

13 California Unfair Competition Law, CAL. BUS. & PROF. CODE § 17200 et seq.; California 

Consumer Legal Remedies Act, CAL. CIV. CODE § 1750 et seq.; Colorado Consumer 

Protection Act (“CCPA”), COLO. REV. STAT. ANN. § 6-1-101 et seq.; Florida Deceptive and 

Unfair Trade Practices Act, FLA. STAT. ANN. § 501.201 et seq.; MCPA, MASS. GEN. LAWS ch. 

93A § 2 et seq.; TDTPA, TEX. BUS. & COM. CODE ANN. § 17.41 et seq. Like the cited 

California, Colorado, Florida, and Massachusetts laws, the Federal Trade Commission 
52

deceptive act or practice. See Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 793 

(9th Cir. 2012) (applying California law); Rhino Linings USA, Inc. v. Rocky Mountain 

Rhino Lining, Inc., 62 P.3d 142, 146–47 (Colo. 2003) (en banc); Marti v. 

Schreiber/Cohen, LLC, 454 F. Supp. 3d 122, 127 (D. Mass. 2020) (applying 

Massachusetts law), appeal dismissed, No. 20-1518, 2020 WL 6877926 (1st Cir. June 

18, 2020); TLO S. Farms, Inc. v. Heartland Farms, Inc., 282 So.3d 145, 148 (Fla. Dist. 

Ct. App. 2019); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996). “The 

determination of whether certain conduct is unfair or deceptive is a question of 

fact, but whether that conduct rises to the level of a . . . violation [of a consumer 

protection statute] is a question of law.” Fed. Ins. Co. v. HPSC, Inc., 480 F.3d 26, 34 

(1st Cir. 2007); Cheslow v. Ghiradelli Chocolate Co., 445 F. Supp. 3d 8, 16 (N.D. Cal. 

2020) (noting that “a court may determine, as a matter of law, that the alleged 

violations of [state consumer protection statutes] are simply not plausible”

(citation omitted)); accord Rosa v. Amoco Oil Co., 262 F. Supp. 2d 1364, 1368–69 (S.D. 

Fla. 2003).

We conclude that the alleged conduct here does not plausibly rise to the 

level of a deceptive or unfair practice. “[C]onduct is deceptive or misleading if it 

Act proscribes “[u]nfair methods of competition in or affecting commerce, and unfair or 

deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a). 
53

is ‘likely to deceive a reasonable consumer.’” Zeiger v. WellPet LLC, 304 F. Supp. 

3d 837, 850 (N.D. Cal. 2018) (quoting Williams v. Gerber Prods., 552 F.3d 934, 938 

(9th Cir. 2008)); accord Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 479–

80 (Tex. 1995) (finding an act false, misleading, or deceptive if “it has the capacity 

to deceive an ignorant, unthinking, or credulous person” (internal quotation 

marks and citation omitted)); PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d 773, 

777 (Fla. 2003) (“[D]eception occurs if there is a representation, omission, or 

practice that is likely to mislead the consumer acting reasonably in the 

circumstances, to the consumer’s detriment.” (internal quotation marks and 

citation omitted)). That test requires a probability “that a significant portion of the 

general consuming public or of targeted consumers, acting reasonably in the 

circumstances, could be misled.” Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 

486, 495 (Cal. Ct. App. 2003); see also Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 

1281, 1284 (11th Cir. 2007) (explaining the standard under Florida law to “require[]

a showing of probable, not possible, deception that is likely to cause injury to a 

reasonable relying consumer.” (internal quotation marks and citation omitted)

(emphasis added)).14 

14 Colorado has a heightened standard: “To be a deceptive trade practice under the 

CCPA, a false or misleading statement must be made with knowledge of its untruth, or 
54

Plaintiffs allege that defendants acted deceptively by advertising the MLB 

DFS contests despite knowing that such contests were not “contests of skill” and 

that there were electronic sign-stealing schemes, and then making numerous 

alleged misrepresentations. As discussed supra in connection with the other 

claims, no reasonable consumer, not even an “ignorant, unthinking, or credulous 

person,” Boys Club of Greater Dallas, 907 S.W.2d at 480, could believe that there 

would be no rules violations in MLB baseball games notwithstanding any 

statements by participants to the contrary. See Oliver, 2020 WL 1430382 at *2 (“In 

the hyper-competitive world of professional sports, where hard-working athletes 

are heroes to children and adults alike, it is no secret that athletes will sometimes 

disappoint their fans by acting unethically to gain a perceived edge.”). 

Plaintiffs emphasize that MLB DFS contests are “statistics-based 

competition[s]” and thus, can be fair only if the underlying “player performance 

statistics” are reliable. Appellants’ Reply to MLB at 5. However, there is no 

allegation that the statistics utilized by plaintiffs in the MLB DFS baseball contests 

recklessly and willfully made without regard to its consequences, and with an intent to 

mislead and deceive the plaintiff.” Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d

1111, 1120 (10th Cir. 2008) (internal quotation marks and citation omitted). Since 

plaintiffs’ claims fail under the lower standards promulgated by other states’ courts, they 

similarly fail under Colorado’s heightened standard.
55

did not accurately reflect the real-world baseball statistics of the MLB players

based on their actual performances on the field during the games. To the extent 

that plaintiffs assert that such statistics are “unreliable” because they include the 

impact of unknown real-world variables (including rules violations), such 

variables reflect the reality of sports competition, and their existence does not 

render the sports competition—or a fantasy sports contest based upon that 

competition—deceptive or unfair. See also Oliver, 2020 WL 1430382, at *4 (“The 

Astros and Red Sox could have won the World Series for any number of reasons 

unconnected to the asserted pattern of fraud. The fact that a team may engage in 

the fraudulent use of technology to steal hand signals does not guarantee that the 

signal-stealing team will win. [Plaintiff] could have lost his bets for many 

reasons.”). 

Plaintiffs have failed to cite to a single case, in any jurisdiction, where a court 

has allowed a claim to proceed under a state consumer fraud statute based upon 

an alleged inadequacy in performance by participants in a sports competition or 

an undisclosed rule violation, or statements by participants related to such 

matters. That is no accident. When it comes to sports competitions, the one thing 

that a spectator or consumer can expect is the unexpected. As the Ninth Circuit 
56

aptly explained in Pacquiao, “[i]n a typical consumer-protection case, consumers 

form beliefs about what they can expect by relying on public representations 

regarding the features of the good or service at issue.” 942 F.3d at 1170. However, 

“[t]hese principles do not apply with equal force to claims brought by fans in the 

sports context” because the “‘human drama of athletic competition’ distinguishes 

this case from the garden-variety consumer protection cases.” Id. (footnote and 

citation omitted). We agree, and the fact that plaintiffs are not spectators, but 

fantasy sports participants, does not dictate a different result vis-à-vis claims 

against the sports leagues and teams. 

In short, the alleged misrepresentations and omissions at issue here do not 

support a plausible deceptive or unfair practice under any of the applicable 

consumer protection statutes. Thus, we affirm the district court’s dismissal of all 

of plaintiffs’ consumer protection claims. 

D. Plaintiffs’ Unjust Enrichment Claims

Finally, we conclude that the district court properly dismissed plaintiffs’ 

unjust enrichment claims because plaintiffs have failed to plausibly allege that the 

benefit to defendants was unjust.15

15 As a threshold matter, MLB argues that there is no independent cause of action for 

unjust enrichment under either California or Texas law, and that Massachusetts and 
57

To succeed on their claims of unjust enrichment, an equitable remedy, 

plaintiffs must demonstrate that defendants benefited at the expense of plaintiffs 

and the benefit was unjust. See Scott v. Scott, 428 P.3d 626, 636 (Colo. App. 2018); 

Duty Free World, Inc. v. Miami Perfume Junction, Inc., 253 So.3d 689, 693–94 (Fla. Dist. 

Ct. App. 2018); Metro. Life Ins. Co. v. Cotter, 984 N.E.2d 835, 850 (Mass. 2013); Eun 

Bok Lee v. Ho Chang Lee, 411 S.W.3d 95, 111 (Tex. App. 2013). 

Here, for similar reasons described with respect to the other claims, 

plaintiffs have failed to adequately plead that the alleged benefit to defendants 

was unjust. See Hall v. Humana Hosp. Daytona Beach, 686 So.2d 653, 656 (Fla. Dist. 

Ct. App. 1996) (“[T]he more modern action for unjust enrichment is an equitable 

remedy requiring proof that money had been paid due to fraud, 

misrepresentation, imposition, duress, undue influence, mistake, or as a result of 

some other grounds appropriate for intervention by a court of equity.” (citation 

omitted)). 

Florida law bar an unjust enrichment claim where a plaintiff has an adequate (albeit 

deficient) legal claim. However, we need not address these arguments because, assuming 

the existence of such a cause of action in each of these states, plaintiffs have failed to plead 

a plausible claim. Similarly, we need not address the other pleading defects argued by 

defendants.
58

In the instant case, plaintiffs received the benefit of their bargain since they 

participated in the MLB DFS contests. Potential losses are a known possibility 

when deciding to participate in MLB DFS contests, and plaintiffs cannot now claim 

that they were unaware of that possibility, or the possibility that they may not 

know all variables, that might affect their lineups and player statistics, including 

rules violations by teams and/or players. See also Oliver, 2020 WL 1430382, at *4 

(holding that plaintiff who lost bets with a Las Vegas casino and through a sports 

betting app could not bring unjust enrichment claim against the Astros or the Red 

Sox related to electronic sign-stealing). Moreover, it is also conceivable that, since 

the nature of MLB DFS is a competition based on individual players, rather than 

teams, plaintiffs may have even benefitted due to electronic sign-stealing if they 

had drafted certain players. Accordingly, the unjust enrichment claims were 

properly dismissed. 

* * *

In sum, we affirm the district court’s dismissal of the claims in the FAC, as 

well as the denial of the motion for reconsideration, because plaintiffs failed to 

state any plausible claims in the FAC and the additional allegations in the 
59

proposed SAC failed to cure (and could not cure) the pleading deficiencies

contained within the flawed legal theories asserted by plaintiffs.

II. The Cross-Appeal

In the cross-appeal, the MLB Defendants and the Yankees (a non-party) 

challenge the district court’s decision to unseal a September 2017 letter from MLB 

to the Yankees (the “Yankees Letter”), regarding the results of an internal 

investigation by MLB. Plaintiffs filed the Yankees Letter under seal with their 

motion for reconsideration, and it was referenced in the district court’s 

Memorandum Order denying that motion. 

When reviewing a district court’s order to seal or unseal a document, “we 

examine the court’s factual findings for clear error, its legal determinations de novo, 

and its ultimate decision to seal or unseal for abuse of discretion.” Bernstein v. 

Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139 (2d Cir. 2016). Crossappellants argue that the district court misapplied the applicable law and abused 

its discretion in ordering the letter to be unsealed. We disagree. 

A. Common Law Right of Access to Judicial Documents

“Judicial documents are subject at common law to a potent and fundamental 

presumptive right of public access that predates even the U.S. Constitution.” 
60

Mirlis v. Greer, 952 F.3d 51, 58 (2d Cir. 2020). As we have explained, “[t]he 

presumption of access is based on the need for federal courts, although 

independent—indeed, particularly because they are independent—to have a 

measure of accountability and for the public to have confidence in the 

administration of justice.” United States v. Amodeo (“Amodeo II”), 71 F.3d 1044, 1048 

(2d Cir. 1995).

However, “the mere filing of a paper or document with the court is 

insufficient to render that paper a judicial document subject to the right of public 

access.” United States v. Amodeo (“Amodeo I”), 44 F.3d 141, 145 (2d Cir. 1995). 

Instead, for a court filing to be classified as a “judicial document,” it “must be 

relevant to the performance of the judicial function and useful in the judicial 

process.” Id. Therefore, as a threshold question, the court “determines whether 

the record at issue is a ‘judicial document’—a document to which the presumption 

of public access attaches.” Mirlis, 952 F.3d at 59. 

If a court determines the record at issue is a “judicial document,” a 

determination that thereby attaches the common law presumption of public access 

to that record, it must next determine the particular weight of that presumption of 

access for the record at issue. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 
61

(2d Cir. 2006). At this step, “the weight to be given the presumption of access must 

be governed by the role of the material at issue in the exercise of Article III judicial 

power and the resultant value of such information to those monitoring the federal 

courts.” Amodeo II, 71 F.3d at 1049. 

Finally, once the weight of the presumption has been assessed, the court is 

required to “balance competing considerations against it.” Id. at 1050. Those 

competing considerations may include, among others, “the danger of impairing 

law enforcement or judicial efficiency” and “the privacy interests of those resisting 

disclosure.” Mirlis, 952 F.3d at 59 (quoting Amodeo II, 71 F.3d at 1050). After 

conducting this balancing, the court may deny public disclosure of the record if 

the factors counseling against public access outweigh the presumption of access 

afforded to that record. Id. Moreover, the presumption of access “requires a court 

to make specific, rigorous findings before sealing the document or otherwise 

denying public access.” Newsday LLC v. County of Nassau, 730 F.3d 156, 167 n.15

(2d Cir. 2013). 

B. Analysis

Applying the requisite three-part test, the district court held that the 

Yankees Letter is a “judicial document,” as to which there is a “very strong”
62

presumption in favor of public access, and that the competing privacy 

considerations identified by the MLB Defendants and the Yankees did not 

outweigh the presumption of public access afforded to that document. Olson III, 

466 F. Supp. 3d at 454–57. Therefore, the district court concluded that the Yankees 

Letter should be unsealed, with minimal redactions to protect the identity of 

individuals mentioned therein. Id. at 456. Having carefully reviewed the legal 

challenges raised by cross-appellants to the district court’s determinations under 

our precedent, we find those challenges unpersuasive and conclude that the 

district court did not abuse its discretion in ordering the unsealing of the Yankees 

Letter. 

a. Judicial Document

The threshold question is whether the Yankees Letter is a “judicial 

document.” As noted above, even though the ultimate decision to unseal is 

reviewed for abuse of discretion, this threshold determination is a question of law

that is reviewed de novo. United States v. HSBC Bank USA, N.A., 863 F.3d 125, 134

(2d Cir. 2017).

Cross-appellants argue that the “mere fact that a sealed document was 

‘submitted to the court for consideration’ by one party is not sufficient to create a 
63

presumption of public access to the document.” Yankees’ Br. at 25 (quoting Trump

v. Deutsche Bank AG, 940 F.3d 146, 152 (2d Cir. 2019)). Although that is certainly 

an accurate statement of the law, it is not the mere filing of the Yankees Letter that 

makes it a judicial document in this case. Instead, the Yankees Letter was explicitly 

referred to, and quoted, in plaintiffs’ proposed SAC (under seal) and was one of 

the key grounds asserted for the reconsideration motion seeking an opportunity 

to amend the dismissed pleading. In particular, plaintiffs argued that the Yankees 

Letter contradicted Commissioner Manfred’s statements in the 2017 Press Release

regarding an internal investigation by MLB and, thus, could provide a basis for a 

plausible fraud claim. Moreover, the Yankees Letter was directly addressed by 

the district court in its denial of the reconsideration motion. Olson II, 447 F. Supp. 

3d at 179. Therefore, the Yankees Letter is undoubtedly a “judicial document” 

entitled to the presumption of public access.

The primary argument advanced by cross-appellants is that the Yankees 

Letter cannot be a judicial document because the district court ruled, after 

reviewing the letter, that the content of the document was immaterial to any 

plausible fraud claim. However, we have emphasized that a document filed with 

the court is a judicial document “if it would reasonably have the tendency to 
64

influence a district court’s ruling on a motion or in the exercise of its supervisory 

powers, without regard to which way the court ultimately rules or whether the 

document ultimately in fact influences the court’s decision.” Brown v. Maxwell, 929 

F.3d 41, 49 (2d Cir. 2019). Thus, the fact that the district court ultimately found the 

content of the Yankees Letter to be immaterial under the law does not undermine 

its classification as a judicial document.

Cross-appellants suggest that the analysis should be different here because 

the district court had already ruled in granting the motion to dismiss that any 

alleged misrepresentations about the integrity of real-life major league baseball 

(rather than fantasy baseball) were irrelevant to the claims. Therefore, crossappellants contend that the additional allegations about the Yankees Letter were 

based on the same flawed legal theory that the district court had already rejected 

and was doomed to fail regardless of the specific content of the sealed document. 

That contention, however, overlooks the fact that reconsideration motions, 

by their very nature, seek to have the court re-assess its prior analysis. Under 

cross-appellants’ proposed approach, unsuccessful reconsideration motions 

would not be designated as “judicial documents” simply because they may appear 

to be futile in the wake of the court’s prior ruling. That is not the law. The 
65

classification of such motions (and exhibits to such motions) as “judicial 

documents” is not contingent upon their likelihood of success. Moreover, as we 

have explained, even if a court finds some piece of evidence irrelevant to its 

consideration of a particular motion or to the lawsuit itself, access to such materials 

assists the public in evaluating the merits of the court’s decision:

[E]rroneous judicial decision-making with respect to . . . evidentiary 

and discovery matters can cause substantial harm. Such materials are 

therefore of value “to those monitoring the federal courts.” Thus, all 

documents submitted in connection with, and relevant to, such 

judicial decision-making are subject to at least some presumption of 

public access.

Brown, 929 F.3d at 50 (footnotes omitted) (quoting Amodeo II, 71 F.3d at 1049). 

Because the Yankees Letter was submitted in the motion for reconsideration in 

connection with plaintiffs’ proposed SAC and was explicitly considered and 

rejected by the district court in its Memorandum Order, we conclude that the 

Yankees Letter was “relevant to the performance of the judicial function and useful 

in the judicial process,” Lugosch, 435 F.3d at 119 (quoting Amodeo I, 44 F.3d at 145),

and, therefore, the district court properly classified it is a “judicial document.” 

b. The Presumption of Public Access

Because the Yankees Letter is a judicial document, a presumption of public 

interest attaches. Bernstein, 814 F.3d at 141. Under our three-part analysis, the next 
66

step for the court is to determine the strength of the presumption that should 

attach to the particular document at issue. Lugosch, 435 F. 3d at 119. 

The presumption of public access exists along a continuum. The strongest 

presumption attaches where the documents “determin[e] litigants’ substantive 

rights,” Amodeo II, 71 F.3d at 1049, and is weaker where the “documents play only 

a negligible role in the performance of Article III duties,” id. at 1050. See also

Bernstein, 814 F.3d at 142 (finding that the presumption is “at its zenith” where 

documents “directly affect an adjudication, or are used to determine litigants’ 

substantive legal rights,” and is at its weakest where a document is neither used 

by the court nor “presented to the court to invoke its powers or affect its decisions” 

(internal quotation marks and citation omitted)). Thus, a strong presumption 

attaches to materials filed in connection with dispositive motions, such as a motion 

to dismiss or a summary judgment motion. See Brown, 929 F.3d at 50. Moreover, 

where the documents at issue “are usually filed with the court and are generally 

available, the weight of the presumption is stronger than where filing with the 

court is unusual or is generally under seal.” Amodeo II, 71 F.3d at 1050. In contrast, 

“[d]ocuments that play no role in the performance of Article III functions, such as 

those passed between the parties in discovery, lie entirely beyond the 
67

presumption’s reach, and stand on a different footing than . . . a motion filed by a 

party seeking action by the court, or, indeed, than any other document which is 

presented to the court to invoke its powers or affect its decisions.” Id. (internal 

quotation marks, alteration, and citations omitted). 

The district court found that the Yankees Letter “represents the kind of 

document to which the strongest presumption of access applies.” Olson III, 466 F. 

Supp. 3d at 455. We find no error in the weight accorded to the presumption by 

the district court. As the district court noted, the Yankees Letter was a core 

component of plaintiffs’ motion for reconsideration, as plaintiffs argued that the 

additional allegations in the proposed SAC related to that letter (and its purported 

contradiction with the 2017 Press Release) required such reconsideration. In 

addition, the district court’s denial of the reconsideration motion was a dispositive 

adjudication of the parties’ substantive legal rights. 

Cross-appellants again contend that the district court’s ultimate 

determination, in the denial of the reconsideration motion, that the content of the 

letter was immaterial to plaintiffs’ claims substantially weakens the presumption 

in this case. We disagree. As the district court explained in the Memorandum 

Order, “[t]he Court was plainly discussing the materiality of representations in the 
68

2017 Press Release as a matter of law, not the materiality of the Yankees Letter to 

the Court’s decisionmaking process.” Olson III, 466 F. Supp. 3d at 455. Thus, in 

terms of the decisionmaking process, the district court characterized the Yankees 

Letter as “integral to the Court’s reasoning in this case.” Id. Under these 

circumstances, the presumption of access remains strong. Moreover, the strength 

of that presumption is bolstered by the fact that, as discussed above, the public 

will be able to better understand and assess the district court’s ruling with more 

complete knowledge of the document that was referenced in their proposed SAC 

and that was a cornerstone of plaintiffs’ reconsideration motion. 

The Yankees caution that “[t]he district court’s Unsealing Order, if left to 

stand, provides a roadmap for a plaintiff who brings meritless litigation to, after 

the case is dismissed, circumvent a protective order and harm a non-party by 

simply filing a meritless motion for reconsideration and attaching the sealed 

document to that motion.” Yankees’ Br. at 25–26 (emphasis omitted). We 

addressed a similar concern in Amodeo II and stated that “we believe motive 

generally to be irrelevant to defining the weight accorded the presumption of 

access” at step two of the analysis. 71 F.3d at 1050. Instead, considerations of 

“personal motives, such as an individual vendetta or a quest for competitive 
69

economic advantage . . . are best weighed as part of an assertion by a person or 

firm of a right of privacy based on an anticipated injury as a result of disclosure.” 

Id. Thus, such considerations will be part of the final step of the analysis to which 

we now turn. 

c. Privacy Interests

After assessing the weight of the presumption, the court must balance the 

privacy interests of the cross-appellants supporting the non-disclosure of the 

document with the presumption of public access. Id. Here, after careful 

consideration of the competing considerations, the district court concluded that 

“[t]he privacy interests of MLB and the Yankees . . . are modest at best, and not 

nearly strong enough to overcome the robust presumption of access that attaches 

to the Yankees Letter.” Olson III, 466 F. Supp. 3d at 455. We discern no basis to 

disturb the district court’s discretionary balancing of these factors. 

As an initial matter, the Yankees argue that, as a non-party, the team has a 

heightened interest in privacy. To be sure, we have recognized that “[t]he privacy 

interests of innocent third parties . . . should weigh heavily in a court’s balancing 

equation.” In re Application of Newsday, Inc., 895 F.2d 74, 79–80 (2d Cir. 1990) 

(citation omitted). Here, although the Yankees are not named as a defendant, their 
70

third-party status should be placed in context. More specifically, the Yankees are 

members of MLB (a named defendant in this case) and, through that membership, 

they allow the Commissioner, as part of the MLB Constitution, to, among other 

things, investigate any alleged practices that are “not in the best interests of the 

national game of Baseball” and to make decisions regarding what actions are 

appropriate following such investigations. Joint App’x at 217. The Yankees do 

not contend that there are limitations to the Commissioner’s authority to make 

public the results, in whole or in part, of an internal investigation. Thus, to the 

extent that the privacy rights of the Yankees are affected by the decisions of MLB 

and its Commissioner regarding the handling of the results of the investigation

(including public disclosures), the Yankees are not equivalent to a third party who 

is unassociated with MLB. Cf. Byrne v. Yale Univ., Inc., No. 3:17-CV-1104 (VLB), 

2020 WL 1820761, at *3 (D. Conn. Apr. 10, 2020) (concluding sealing of confidential 

internal investigation materials warranted where the incidents and individuals 

referenced were far removed from the district court’s decision). We recognize, 

however, that the privacy of interests of the Yankees, even given their membership 

in MLB, must be given careful consideration along with similar privacy interests 

asserted by MLB itself. 
71

With respect to those privacy interests, cross-appellants emphasize that 

results of an internal investigation are traditionally private and prepared with an 

expectation of confidentiality. See Amodeo II, 71 F.3d at 1051 (“[C]ourts should . . . 

consider the degree to which the subject matter is traditionally considered private 

rather than public.”). Moreover, they argue that the public disclosure of the 

Yankees letter reflecting the results of the internal investigation would “chill the 

cooperation and candor that is essential to the conduct of thorough and fair

internal investigations in MLB and other sports and industries.” Yankees’ Br. at 

33. The Yankees further contend that the team will suffer “significant and 

irreparable reputational harm” if the document is released to the public. Yankees’

Br. at 36.

Each of these considerations the Yankees and MLB invoke for continuing to 

seal the Yankees Letter, however, overlooks a fact that is critical to the balancing—

namely, that MLB voluntarily disclosed major portions of the content and 

pertinent conclusions of the internal investigation, as summarized in the Yankees 

Letter, to the public in the 2017 Press Release. In particular, the 2017 Press Release 

(issued one day after the Yankees Letter was privately sent to the Yankees) 

explained that: (1) the Red Sox violated MLB rules through the use of an electronic 
72

device to decode signs; (2) there was insufficient evidence that the Yankees had 

made improper use of the YES Network to decode signs; and (3) the Yankees 

violated MLB rules through their use of a dugout phone. Thus, the district court 

did not err in concluding that the privacy interests of both MLB and the Yankees 

were greatly diminished because the content of the Yankees Letter, to a substantial 

extent, had already been made public by MLB. Olson III, 466 F. Supp. 3d at 456. 

In fact, given the public nature of the disclosure, the diminished value of the 

Yankees’ privacy interest under such circumstances would not change even if the 

Yankees had no relationship to MLB. In addition, any argument regarding the 

chilling effect on future MLB internal investigations was substantially 

undermined not only by the public disclosure of the results of the investigation 

detailed in the Yankees Letter, but also by MLB’s decision to issue similar press 

releases regarding other internal investigations into alleged sign-stealing schemes 

in September 2017 (Red Sox), January 2020 (Astros), and April 2020 (Red Sox). 

Joint App’x at 482–84, 495–98.

Moreover, it is important to note that the Yankees primarily contend they 

will suffer “significant and irreparable reputational harm” not because of the 

actual substance of the Yankees Letter, but rather because its content would be 
73

distorted. Yankees’ Br. at 18. The Yankees argue that the harm from the unsealing 

of the Yankees Letter will arise because its content “would be distorted to falsely 

and unfairly generate the confusing scenario that the Yankees had somehow 

violated MLB’s sign stealing rules, when in fact the Yankees did not.” Yankees’

Br. at 36. That argument, however, carries little weight. Disclosure of the 

document will allow the public to independently assess MLB’s conclusion 

regarding the internal investigation (as articulated to the Yankees), and the 

Yankees are fully capable of disseminating their own views regarding the actual 

content of the Yankees Letter. In short, any purported distortions regarding the 

content of the Yankees Letter can be remedied by the widespread availability of 

the actual content of this judicial document to the public, and the corresponding 

ability of MLB and the Yankees to publicly comment on it.

We also need to address the claims regarding plaintiffs’ motivation. More 

specifically, the MLB Defendants accuse plaintiffs of trying to circumvent the 

stipulated confidentiality order that protected the Yankees Letter in discovery for 

“perceived shock value, or to cause potential embarrassment,” MLB Defs.’ Reply 

Br. at 12, and the Yankees echo this accusation, Yankees’ Reply Br. at 2–5, 20. As 

noted above, improper motives in any attempt to use and/or unseal a judicial 
74

document can be considered by the court during the step-three balancing. 

However, as the district court noted, cross-appellants “offer[ed] no evidence of 

plaintiffs’ bad faith beyond speculation,” Olson III, 466 F. Supp. 3d at 456, and, on 

appeal, cross-appellants have similarly failed to point to any evidence in the record 

that would support disturbing the district court’s finding of the lack of bad faith 

by plaintiffs as it relates to the use of the Yankees Letter in their motion or in their 

support for its unsealing.

Finally, we note that the district court took particular care to address the 

privacy interests of certain individuals mentioned in the Yankees Letter (and not 

the 2017 Press Release), whose identities were not critical to the public’s ability to 

understand the Yankees Letter’s content and its relationship to plaintiffs’ claims, 

as well as to assess the district court’s ruling. Specifically, the district court held 

that the identification of these individuals could be redacted from the publiclyfiled version of the Yankees Letter. Id. at 456. That approach was consistent with 

our guidance that, in conducting this balancing and exercising its discretion, a 

district court should consider its ability to use redactions that do not unduly 

interfere with the public’s right to access judicial documents in order to address 

privacy concerns. See Amodeo II, 71 F.3d at 1047–48, 1052–53; accord Newsday, Inc., 
75

895 F.2d at 80 (affirming order releasing search warrant affidavit and noting that 

“[t]he record shows that the district court was aware of the privacy interests at 

stake, and redacted references to innocent third parties”). 

In sum, where the presumption of public access is at its strongest, as it is 

here with respect to the Yankees Letter, the presumption can be overcome only by

countervailing considerations in “extraordinary circumstances.” Amodeo II, 71 

F.3d at 1048. The district court did not abuse its discretion in concluding that the 

privacy interests of cross-appellants, as well as the related countervailing 

considerations against unsealing, were insufficient to overcome the strong 

presumption in favor of public access in this case, and thus, the unsealing of the 

Yankees Letter with redactions was warranted.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s dismissal of 

plaintiffs’ FAC without leave to amend and the district court’s denial of plaintiffs’ 

motion for reconsideration. We also AFFIRM the district court’s unsealing order.