American Bar Association
Media Alerts
Media Alerts - Josh Finkelman v. National Football League - Third Circuit
Decrease font size
Increase font size
January 20, 2016
  Josh Finkelman v. National Football League - Third Circuit
Headline: Football Fans Lack Article III Standing to Sue NFL For Alleged Super Bowl Ticketing Violations

Area of Law: Constitutional Law, Article III Standing

Issue Presented: Whether plaintiffs alleged facts that were sufficient to establish constitutional standing for the NFL's alleged ticketing violations when they did not purchase tickets for the Super Bowl through NFL's lottery system or at all?

Brief Summary: Plaintiff/Appellants Josh Finkelman and Ben Hoch-Parker wanted to purchase tickets to Super Bowl XLVIII. Finkelman chose not to enter the NFL lottery for tickets and, instead, purchased two tickets on the resale market for a price higher than face value. Hoch-Parker did not purchase tickets at all. Plaintiffs then brought a class action against the National Football League ("NFL") in the District of New Jersey, alleging that the NFL's ticketing practices violated New Jersey's Ticket Law and resulted in unjust enrichment. The District Court dismissed the case for failure to state a claim. The Third Circuit affirmed the District Court's dismissal of Hoch-Parker's claim for lack of standing. The Third Circuit found that by not purchasing tickets at all, the amount of damages he allegedly suffered was indeterminate and, thus, he lacked standing. The Third Circuit also concluded that Finkelman failed to allege facts sufficient to establish standing under two theories. First, Finkelman failed to establish that but for the NFL's alleged withholding of tickets, he would have been able to purchase a face-price ticket. Additionally, Finkelman failed to establish that he paid a higher price in the resale market due to the NFL's alleged withholding of tickets. Both of these theories rested on speculation, which is insufficient to establish Article III standing. Therefore, because the District Court lacked subject matter jurisdiction to reach Finkelman's claims, the Third Circuit vacated its dismissal on the merits of the Ticket Law and unjust enrichment claims.

Extended Summary: Plaintiffs Josh Finkelman and Ben Hoch-Parker wanted to purchase tickets to Super Bowl XLVIII. Finkelman purchased two tickets on the resale market for a price higher than face value while Hoch-Parker did not purchase tickets at all. Plaintiffs then brought a class action against the National Football League ("NFL") and affiliated entities in the District of New Jersey, alleging that the NFL's ticketing practices violated New Jersey law. Plaintiffs claimed that the NFL's method of selling tickets violated New Jersey's Ticket Law and resulted in unjust enrichment.

New Jersey's Ticket Law limits the number of tickets that can be held back from sale to the general public to five percent of the available seating in any venue or performance. Only one percent of tickets sold were available to the public and the only way to obtain a ticket was to participate in a lottery. However, neither Finkelman nor Hock-Parker ended up entering the lottery and instead Finkelman purchased two tickets for $2,000 per ticket on the resale market.

The District Court dismissed the case for failure to state a claim and Plaintiffs appealed. The District Court concluded that the Ticket Law's five percent limitation on withholding tickets applies solely to tickets that are intended for release to the general public. Here, none of the tickets sold through the lottery were withheld and therefore the NFL did not violate the Ticket Law. The District Court also concluded that Finkelman could not prove causation because he could not demonstrate that he suffered any injuries resulting from the NFL's alleged misconduct since he did not enter the lottery. Additionally, the Court found that Hoch-Parker lacked standing because by not purchasing tickets, or entering the lottery, he could not have suffered any harm. Lastly, the District Court dismissed the unjust enrichment claim because the relationship between Plaintiffs and the NFL was too remote to be viable.

The Third Circuit focused on whether either Plaintiff had standing to sue for the alleged violations. To establish Article III standing, a plaintiff must demonstrate injury-in-fact, causation, and redressability. The Third Circuit concluded that neither Plaintiff had standing to bring the case in federal court because otherwise anyone who purchased a ticket on the resale market would have standing on nothing more than speculative assertions of causation and injury.

Hoch-Parker did not have standing because by not purchasing tickets, the amount of damages he allegedly suffered was indeterminate. Hoch-Parker argued that his injury was the "lost opportunity" he suffered by not being able to attend the Super Bowl, but the Third Circuit rejected that argument. The Third Circuit found that there was an insufficient connection between Hoch-Parker's claimed injury and the challenged conduct of withholding tickets.

Additionally, the Third Circuit concluded that Finkelman failed to allege facts sufficient to establish standing. The Court reasoned that if Plaintiff's theory was accepted, everyone who bought a ticket could sue the NFL for any costs above face price whether they participated in the ticket lottery or not. The Third Circuit also rejected Finkelman's argument that he paid a higher price in the resale market due to the NFL's alleged withholding of tickets. However, there was no way of knowing whether the withholding of tickets had the effect of increasing or decreasing prices on the resale market. Because Finkelman only presented speculation, he failed to establish Article III standing. The Third Circuit then dismissed the appeal for lack of jurisdiction. To view the full opinion, click here: http://www2.ca3.uscourts.gov/opinarch/151435p.pdf

Panel: Fuentes, Smith, and Barry, Circuit Judges

Argument Date: Oct. 8, 2015

Issued Opinion: Jan. 14, 2016

Docket Number: 15-1435

Decided: Affirmed in part, vacated in part.

Case Alert Author: Morgan Haas

Counsel: Bruce H. Nagel, Esq., Robert H. Solomon, Esq., Greg M. Kohn, Esq., and Andrew Pepper, Esq., Attorneys for Appellants; Jonathan D. Pressment, Esq., William Feldman, Esq., Karen A. Confoy Esq., and Steven J. Daroci, Esq., Attorneys for Appellees.

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 01/20/2016 08:52 AM     3rd Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top