23XI, Front Row seek dismissal of NASCAR counterclaim

23XI Racing and Front Row Motorsports filed a motion Wednesday to dismiss NASCAR’s counterclaim while calling it “an act of desperation.”

NASCAR filed its counterclaim against the two teams and Curtis Polk, a co-owner of 23XI Racing, on March 5. The claim alleges Sherman Act violations and conspiracy.

“NASCAR’s retaliatory counterclaim is an act of desperation that cannot withstand a motion to dismiss,” the 23XI Racing and Front Row motion stated. “It does not allege the facts necessary to state a claim. Instead, NASCAR is using the counterclaim to engage in litigation gamesmanship, with the transparent objective of intimidating the other racing teams by threatening them with severe consequences if they support the Plaintiffs’ challenge to the unlawful NASCAR monopoly.

“NASCAR’s lead counsel used the filing of the counterclaim as an occasion to conduct a press conference in which he delivered a warning that NASCAR will end the charter system that the racing teams depend on if Plaintiffs prevail in their antitrust claims.”

In the argument of why the counterclaim should be dismissed, or “as necessary, move to strike NASCAR’s request to eliminate Section 3(a) from the charter agreement,” which guarantees entry into each race, the teams claim that NASCAR failed to show Sherman Act violations nor did they allege facts that show antitrust injury. They assert that NASCAR only alleged an attempted boycott, which does not constitute a Sherman Act violation.

Additionally, Front Row Motorsports wants to be dismissed from NASCAR’s counterclaim because it “does not allege any specific conduct by Front Row” that would support the conspiracy claim. NASCAR primarily mentioned Polk in its counterclaim on that subject.

23XI Racing and Front Row Motorsports were the only two teams — of the 15 with charters — that did not sign the charter agreement. In early September, the teams were sent a final deadline to sign the agreement after two years of negotiations.

The joint antitrust lawsuit, which alleges NASCAR has used anti-competitive practices and is an unlawful monopoly, was filed on Oct. 2. A trial date over the antitrust lawsuit is set for Dec. 1, and NASCAR’s counterclaim, unless dismissed, will be litigated on the same timeline.