On Tuesday evening, Jeffrey Kessler, the attorney representing 23XI Racing and Front Row Motorsports in an antitrust lawsuit against NASCAR, stated that his clients are submitting a second motion for a preliminary injunction to the court citing new evidence to suggest that it is warranted in the case.
In a statement, Kessler also revealed that 23XI Racing and Front Row Motorsports are also seeking relief to remove the release language forbidding teams from executing antitrust litigation against the sanctioning body while serving as a Chartered Team. NASCAR removed the clause from the Open Team agreement on November 16.
“Consistent with Judge Whitney’s earlier ruling, 23XI and Front Row Motorsports are submitting a second preliminary injunction to the court with new evidence,” Kessler said in a statement released by both race teams on Tuesday. “My clients are also seeking this relief to strike down the release language that NASCAR removed from its open agreements but still maintains in its charter agreements as part of its monopolistic control. I’m confident the court will act to protect my clients from NASCAR’s anticompetitive conduct.”
The teams have requested for NASCAR to respond to the preliminary injunction request by December 6, while NASCAR has requested for the deadline to be December 9. The teams will have a chance to reply to NASCAR’s response, currently, the teams are requesting a reply deadline of December 10, while NASCAR is seeking a deadline of December 11. For the next court hearing, teams are asking for December 12 or 13, while NASCAR is leaving the court date to the court’s discretion.
The initial motion for preliminary injunction for 23XI Racing and Front Row Motorsports was denied by Judge Frank D. Whitney on Friday, November 8. At the time, Judge Whitney stated that, “Plaintiffs have not met their burden as required for a preliminary injunction,” and if more evidence was found or circumstances had changed, the teams could file a renewed motion for preliminary injunction.
On November 15, the teams requested an expedited Injunction Appeal but withdrew the appeal on November 21.
What the teams are seeking through the preliminary injunction is the right to perform as Chartered Teams under the 2025 Charter Agreement without the clause preventing them from suing NASCAR for the duration of the ongoing antitrust lawsuit. Without the preliminary injunction, the teams will have to decide whether to compete as Open teams and continue with the lawsuit, or continue as Chartered teams (if NASCAR allows them to sign the Charter Agreement with the deadline passed) without pursuing the antitrust lawsuit.
The burden for the teams is to show without a shadow of a doubt that they would suffer irreparable damages if a preliminary injunction is not granted. While the section of the court documents filed on Tuesday night is heavily redacted in the section containing the “new circumstances,” the teams explain in the documents that they have roughly three weeks remaining to choose to close on the Charter acquisitions (each team has an agreement to purchase a Charter from the now-defunct Stewart-Haas Racing) and to appease certain sponsors who want to be on Chartered cars only.
The potential of losing out on the Charters from Stewart-Haas Racing and sponsorship partners could be enough to show irreparable damages, but that will ultimately be up to the court to decide.
