View:
United States securities and exchange commission logo
December 7, 2023
Jason K. Park
Chief Financial Officer
DraftKings Inc.
222 Berkeley Street, 5th Floor
Boston, MA 02116
Re: DraftKings Inc.
Annual Report on
Form 10-K
Filed February 17,
2023
File No. 001-41379
Dear Jason K. Park:
We have reviewed your
filing and have the following comments.
Please respond to this letter within ten business days by
providing the requested
information or advise us as soon as possible when you will respond. If
you do not believe a
comment applies to your facts and circumstances, please tell us why in
your response.
After reviewing your
response to this letter, we may have additional comments.
Annual Report on Form 10-K filed February 17, 2023
General
1. We note your disclosure
that DraftKings Marketplace "is a digital collectibles (non-
fungible token or
NFT ) ecosystem designed for mainstream accessibility that offers
curated initial NFT
drops ( Primary Sales ). In addition to Primary Sales, owners of NFTs
on Marketplace can list
their NFTs for sale to other Marketplace customers ( Secondary
Sales ). The revenue
that the Company earns from Marketplace is primarily based on a
specific percentage of
the gross value of each Primary Sale or Secondary Sale." Your
website also indicates
that you are actively engaging in primary sales and facilitating
secondary sales of
NFTs. In connection with such activities, please:
Provide proposed
disclosure that includes a materially complete description of your
Marketplace,
including identifying the underlying protocol, and the NFTs that are
listed and traded
on your Marketplace, and clarify who creates the NTFs; and
Explain to us how
your Marketplace operates with respect to NFTs and your role in
it. In this regard,
describe in greater detail the services the Marketplace provides,
Jason K. Park
DraftKings Inc.
December 7, 2023
Page 2
both in the creation of the NFTs and the subsequent listing and
trading of the NFTs
on your platform, and how prices are set in primary and resale
transactions.
2. Provide us with your legal analysis that such NFTs sold on your
Marketplace are not
securities under Section 2(a)(1) of the Securities Act of 1933 and,
therefore, you are not
facilitating, or causing you to engage in, transactions in unregistered
securities. In
responding to this comment, please address your operation of the
Marketplace. See Gary
Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
756 F.2d 230 (2d
Cir. 1985).
3. Please provide proposed disclosure that includes a description of your
internal processes
for how you determine, or will determine as you expand your business,
whether the NFTs
listed and traded on your Marketplace are securities within the meaning
of the U.S. federal
securities laws. Please also clarify that such processes are risk-based
assessments made
by the company and are not a legal standard or binding on any regulatory
body or court.
Further, please include a risk factor addressing the uncertainty of such
assessments and
the consequences of making an incorrect assessment or a regulatory body
or court
disagreeing with the company s assessment. Finally, please address the
potential
regulatory risks under the U.S. federal securities laws if such NFTs are
determined to be
securities, such as compliance with Section 5 of the Securities Act or
whether the
company could become subject to regulation as a national securities
exchange or as a
broker-dealer under the Securities Exchange Act of 1934.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please contact Brian Fetterolf at 202-551-6613 or Taylor Beech at
202-551-4515 with
any questions.
Sincerely,
FirstName LastNameJason K. Park
Division of
Corporation Finance
Comapany NameDraftKings Inc.
Office of Trade &
Services
December 7, 2023 Page 2
cc: Scott D Miller
FirstName LastName