Antitrust attorney Rakesh Kilaru weighs in on 23XI Racing, Front Row vs. NASCAR trial

The NASCAR antitrust trial continues. With so much on the line for the sport, teams, and fans, it’s important to know what’s happening. In a recent interview with 5GOATs, Rakesh Kilaru, a partner at Wilkinson Stekloff and antitrust expert, gave his professional thoughts on the case.

We have heard from many witnesses throughout the Plaintiffs’ argument so far. From Denny Hamlin to Michael Jordan to Steve Phelps and finally, Jim France. There were others on the stand as well.

As the NASCAR trial starts to wind down, and the Defendants begin their arguments, it might be helpful to understand how these arguments are made, how the jury will play a role, a little clarification on how damages will be handled, and how any potential changes to the sport will be made in the case the teams win out.

Witnesses help attorneys build the story for the jury

When witnesses take the stand, there is a rhyme and reason for it. It doesn’t just matter who they are and what they say. It matters how they say it, when they say it, and who speaks before and after them.

Denny Hamlin opened up the testimony last week. He was a rather combative and passionate witness on the stand, particularly when speaking to NASCAR’s attorneys. Then you had witnesses like Heather Gibbs, who was very emotional in a different way. She was followed by the smooth-talking and charming Michael Jordan.

It is all about building the story. And that story has to be convincing to jurors.

“You know, at a higher level, you’re trying to figure out, what’s the story, and does it appeal to jurors,” Rakesh Kilaru said about witness selection. “And I think the fun thing about this case is that you have two really good trial lawyers involved, is that, you know, you can hear anti-trust cases and there can sometimes be temptation to try to make it super dry and practical, and just have economic experts get on the stand and talk about the economics on both sides, and, you know, the market is this, or the market is that.

“And what I’ve found in my own experience is when you actually try these cases, both sides have to figure out how to connect with the jurors and tell a story that follows the law that actually makes them view it from your side. More often than not, it’s not some very political anti-trust economic argument, even though I think jurors take their job seriously and really try to figure that out. It’s which side seems more credible, which side has the most of the story, which side is saying things that match to what they were saying back in the time.”

Jeffrey Kessler has attempted to paint a story of a stubborn and abusive NASCAR leadership. That leadership is headed by Jim France, the owner and CEO of NASCAR. France took the stand on Tuesday and didn’t really say much of anything. A lot of “I don’t knows” and “I don’t recalls” were reportedly thrown out.

“Any good trial lawyer, and there are really good trial lawyers on both sides of the fence. … I think good trial lawyers, are going to think about exactly that kind of choreography. What to present when, in what order, and there are technical reasons for it, you know, what evidence does the jury need to hear at certain times?

“There’s also the storytelling aspect of it. You know, what keeps the jurors together, what keeps them engaged, what keeps them focused.”

Jury will handle damages, Judge Bell will correct antitrust violations

So, 23XI Racing and Front Row Motorsports are seeking damages. Edward Snyder, the economic expert witness for the teams, calculated the damages. In total, the teams are seeking a combined $365 million. And what if the teams win and NASCAR is found to be an abusive monopoly? Who determines the remedies for those antitrust violations?

As Mr. Kilaru explains, it is the jury who will determine damages. However, Judge Kenneth Bell will be the one to weigh in on remedies to the business of NASCAR, should they lose the case. Judge Bell can either take recommendations from the Plaintiffs or rule how he sees fit in that situation.

“I believe the case has two phases, right?” Kilaru said. “There’s this damages phase, which you can try to figure out if the plaintiffs are getting money. Then there would be a phase later on to determine if there needs to be any kind of a judgment. What should the structure look like? And the jury won’t decide that. The judge will.

“The jury will decide damages. … So typically in these cases, we’ll have hired experts who will say, here’s what an injunction would look like that would increase competition. And NASCAR will say, well, actually, that doesn’t work for this reason or that reason. If you’re going to impose an injunction, you should maybe do it like this instead. That’s like the kind of common second phase of these cases. At the end of the day, it is up to the judge.”

In other words, we don’t know what Judge Bell will do. However, it should be comforting to know that 23XI and Front Row aren’t seeking to make a new series to compete against NASCAR. They aren’t seeking to get rid of charters, but to make the charter agreement details more fair for all involved.

Judge Bell has shown his concern for the sport in this case. He felt that the two sides should have settled out of court. But, that concern might mean he isn’t willing to completely destroy the sport of NASCAR. While we don’t know what he will rule in the event the teams win out, there might be some solace in the fact that he can take recommendations and input before making his decisions.

Expert witnesses play vital role in NASCAR trial jury decision

Edward Snyder and his expert testimony was largely boring. A lot of numbers, a lot of math, explaining how different leagues operate. There is a lot there that is a slog to get through. However, the expert witness will be vital to determining things like damages. The expert also pieces together the previous testimony to help complete the overall picture the attorneys are arguing.

“I think jurors evaluate experts in the way that they evaluate other witnesses,” Kilaru said. “Did I understand what they were saying? Were they helpful? Were they credible? You know, did they seem like they had a dog in the fight and they were a hired gun? Those are things that can matter to people. You see a paid expert on the stand and he’s super nice to the person who’s asking the questions, and then the other side gets up and will deny that the sky is blue.”

Jury must calculate damages based on facts of the case

When a jury rules in favor of a party that is seeking damages, they can’t just make up a number. The ruling from the jury has to be rooted in the facts of the case. That is where the expert and his calculation of damages comes into play.

Snyder calculated three areas of lost revenue in his expert report. Lost Profits from Reduced Revenues ($84.5 million), Total Reduction in Market Value ($260.2 million), and Lost Revenues for 2025 ($20.1 million). The Plaintiffs argue that NASCAR’s practices have prevented them from reaching the full potential value of their teams. On top of that is the Lost Revenue in 2025 for losing their charters, and the performance money that comes with those charters.

“The reason it’s important, in my view, is that at the end of the day, the jurors have to make a decision, and that decision has to be grounded in the evidence that they actually heard at the trial, right? So, the expert has to convince the jury that the numbers he’s putting out are more likely than not the right numbers, and what the plaintiffs really want and need, I think, is for the jury to ultimately write down the numbers that the expert gives.”

Kilaru brought up a recent trial his firm was part of. The NFL Sunday Ticket class-action lawsuit from 2024 almost had an issue with the damages the jury awarded in the class-action suit. While the judge in that case threw out the ruling due to flawed methodology with two witnesses, there was an issue with what the jury awarded in damages. The number the jury came up with had no basis in the testimony and evidence of the trial.

So, should the teams win, the numbers that Snyder brought up will be important. It will be from his testimony and the testimony of NASCAR’s expert that will likely determine the damages in this case, if any are awarded at all.

Judge Bell has pushed the pace in NASCAR trial, don’t worry

A major concern that NASCAR fans have had in the trial is the timing. Judge Bell has been a hardliner on getting this trial finished up by Friday. While we might have to push closing statements to Monday, the trial should largely be done by the end of business on Friday.

There are many fans concerned that pushing the pace could cause a mistrial or an appeal. What if NASCAR feels they didn’t get to make their argument fully? Attorneys for NASCAR have apparently cut down the witness list in order to facilitate the schedule.

So, is there reason to be worried in the NASCAR trial? Anything can happen, but Rakesh Kilaru says there isn’t much to be concerned with.

“I would say, I don’t want to speak for [Judge Bell], but I would bet that the person in the world who is most concerned about that possibility is actually Judge Bell,” Kilaru said. “Because, you know, the last thing you want if you’re a judge and you preside over this trial and you bring a jury in … So, that’s why I think we see some of the things that have been happening from a timing perspective.

“In my experience, as a general matter, defense cases are usually shorter than the plaintiffs’ case. And what I mean is, like, by the time the plaintiff says, I rest my case, and the defense gets up, typically the defense case ends up being a little less long. That’s partly because the jury’s heard a lot already, and it’s partly because, you know, you don’t want to seem to be the side hat’s belaboring things or making claims they already made.”

NASCAR has an uphill battle after monopoly power ruling

Of course, before anyone even took to the stand, the court ruled NASCAR had a monopoly ahead of trial. So, that puts NASCAR in a tough position. Many times, antitrust cases will end before a market definition is established, or the alleged monopolist is found not to be a monopolist at all. There are other times when a monopoly is formed, but not through illegal business practices. Having a monopoly in and of itself is not illegal.

Judge Bell ruled that NASCAR has a monopoly before the trial. The monopoly is in the market of premier stock car racing. So, this trial was simplified before it began. At least, for the Plaintiffs. NASCAR and Jim France have to prove that while they have a monopoly, it has been due to being the best stock car racing business in the country and doing things legally. They are simply the superior product in the market. We’ll see how the jury takes that argument.

“Sometimes with sports leagues, and I don’t want to overgeneralize, but sometimes with sports leagues, those arguments can be a little hard to make to begin with,” Kilaru explained. “Because there is often one ascendant league or one ascendant form of competition in a sport. So, you may want to contest the market, but in some cases, and I’m not sure if this is one of them, but it’s not obvious how much that would have been a contested issue at the beginning.

“But with that said, given that Judge Bell obviously thought they had a strong argument. So, it sounds like that would have been something that they would have pushed in this trial. So I do think it makes it more difficult [for NASCAR] for sure. I think the real question is, sometimes it’s hard to get jurors to follow this rule, but the rule is, it’s not unlawful to have a monopoly. If you get a monopoly through fair competition, that’s fine. The question is, are you doing things to keep it that are unlawful? And so that’s what I suspect the trial is going to focus on.”

NASCAR begins its trial defense today. We will see if they can undo any damage that the Plaintiffs have already done to them in this case. When the jury finally rules on this case, who will come out on top? More importantly, how will NASCAR change? The antitrust trial has been dominating headlines for months at this point, and it is almost over. At least, barring any appeals.