23XI Racing and Front Row Motorsports are dropping its current appeal over their denied preliminary injunction request that would have granted them charter status — or altered language to the non-chartered (open) entry blanks — throughout the duration of the lawsuit against NASCAR.
The original injunction request asked for one of two measures of relief in the form of granting 23XI and Front Row continued charter protection due to the argued irreparable harm of racing as an open team, or waiving language in the open agreement that prevented entrants from suing the sanctioning body on antitrust grounds.
That was the same language present in the charter agreement.
The teams argued through their lawyers that the litigation could not proceed any further if the language was not removed because they could not race as a result … or they would have to drop the lawsuit to race.
Since then, the judge ruled against the teams, stating they did not prove irreparable harm, just the potential of harm, while also expressing that the injunctive request was too broad. The teams then appealed to the regional fourth district court in Virginia.
NASCAR also chose to remove the language from the open agreement that prevented entrants from bringing litigation against the sanctioning body. 23XI Racing also unveiled Riley Herbst as driver of the third team using a charter that has been purchased from the shuttered Stewart-Haas Racing.
So why are the teams dropping their appeal?
“Circumstances have changed in the underlying case, removing the need for this appeal and necessitating Appellants to seek new relief from the district court.”
Taking the words ‘this appeal’ and ‘seek new relief from the district court,’ at face value, it seems as though 23XI Racing and Front Row Motorsports are going to re-file in the Western District of North Carolina, the court where they have filed everything prior to the appeal to date.
What circumstances have changed?
Well, there’s the hiring of Herbst but also the changing of the language in the open agreement. But even if the teams choose to re-file its preliminary injunction request, they will be right back where they were earlier in the month, having to prove to federal judge Frank D. Whitney that running as an open team would place irreparable harm on the two teams, something they were unable to do.
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Teams drop appeal, may re-file in district court