When U.S. District Judge Frank D. Whitney denied a motion for a preliminary injunction sought by Michael Jordan-owned 23XI Racing and Front Row Motorsports in their antitrust lawsuit against NASCAR earlier this month, the judge explained that Jordan’s group failed to establish what specific harm or harms would occur without an injunction.
As Whitney saw it, the plaintiffs engaged in a conjectural discussion on potential loss of drivers, sponsorships and fans for 23XI Racing and Front Row Motorsports in the absence of an injunction that would allow them to compete as de facto chartered teams despite not signing the charter. He stressed that approach doesn’t satisfy the lofty, real-world requirements necessary to obtain an injunction, which is considered an extraordinary remedy since it can last until a trial.
But in a new petition for a preliminary injunction filed on Tuesday, Jordan and his legal team, led by sports litigator Jeffrey Kessler of Winston & Strawn, are adamant that “circumstances have changed.” What two weeks ago was only a theoretical risk “has come to fruition,” Kessler claims. To that end, he says his two client teams face a “present prospect” of irreparable harm and the “immediate” need for an injunction is “crystal clear.”
What exactly is that harm and why is it so “crystal clear”? We don’t know for certain.
The 21-page memorandum of law in support of a motion is heavily redacted. After mentioning the days after Whitney denied the previous motion for a preliminary injunction earlier this month, the memorandum references “the following changed circumstances have occurred.” That pronouncement is followed by four paragraphs which are separated by bullet points. Three of those paragraphs are entirely redacted.
The fourth paragraph is partially redacted. It notes that NASCAR recently allowed 23XI Racing and Front Row Motorsports to compete as open (non-chartered) teams in 2025 without having to release their antitrust claims. But it also stresses the release would still be required in the charter agreements that 23XI Racing and Front Row Motorsports “have contracted to purchase from Stewart-Haas Racing.” The memorandum alludes to a closing date for that transaction but redacts whatever it is.
Kessler insists that his clients are “now faced with the Hobson’s choice” of whether to complete the transaction with Stewart-Haas Racing and forgo antitrust claims or “forfeit the irreplaceable opportunity to purchase an additional charter.” Although the details of Kessler’s points are hidden from public viewing, the gist of his argument is clear: His clients will lose out on a specific deal with Stewart-Haas Racing in the absence of an injunction that would ensure his clients do not forgo antitrust claims by executing the transaction.
NASCAR’s attorneys will have the opportunity to challenge Kessler’s memorandum. In a forthcoming brief, they will argue that the alleged changed circumstances referenced by Kessler do not meaningfully alter the calculus for a preliminary injunction and that Jordan’s second shot once again misses the rim.
23XI Racing and Front Row Motorsports had appealed Whitney’s denial to the U.S. Court of Appeals for the Fourth Circuit but withdrew that appeal. They now hope Whitney will view the renewed motion in a more favorable light.
