Third Circuit Blows Whistle on Suit Challenging Super Bowl Ticket Lottery

A panel of the Third Circuit Court of Appeals has affirmed the dismissal of a class-action lawsuit that sought to challenge the method by which the National Football League distributed tickets to last year’s Super Bowl XLVIII, held at MetLife Stadium in the New Jersey Meadowlands. In finding that the plaintiffs lacked standing to sue in federal court, the panel’s opinion in Finkelman v. NFL, No. 15-1435, serves as a warning to plaintiffs, appellants, and district courts alike that a party’s standing must be addressed before a court can reach the merits of that party’s claims. The named plaintiffs relied on an obscure and rarely litigated provision of the New Jersey Consumer Fraud Act called the “Ticket Law,” which generally prohibits event organizers from withholding more than 5% of tickets from sale to the general public. The Ticket Law was meant to prevent event organizers from favoring privileged insiders to the detriment of the general public. According to the complaint, approximately 99% of all tickets to Super Bowl XLVIII went to NFL teams or other League insiders like broadcast networks or media sponsors and only 1% of tickets were made available for purchase by the general public through a lottery system. Neither of the two named plaintiffs entered the NFL’s ticket lottery: one named plaintiff, Josh Finkelman, purchased tickets in the resale market at an alleged $1,200 mark-up, and the other, Ben Hoch-Parker, decided not to purchase any tickets when faced with the high ticket prices on the resale market. The District Court found that Finkelman (but not Hoch-Parker) had standing to bring the suit, but then dismissed the complaint on its merits, reasoning that the Ticket Law only applied to tickets that are intended for release to the general public – i.e., the 1% – all of which were released. The Third Circuit agreed that Hoch-Parker’s failure to buy any Super Bowl tickets deprived him of Article III standing, but vacated the District Court’s judgment on the merits, concluding that Finkelman too lacked standing because he never entered the Super Bowl ticket lottery. Thus, the Third Circuit held, Finkelman could not claim that his inability to obtain face-price Super Bowl tickets was traceable to the NFL’s conduct. “Many of us have felt the disappointment of wanting to attend a concert or athletic event only to discover that the event has sold out,” the Finkelman opinion laments, but “Article III requires more.” In other words, as in the NFL, with Article III standing, there is a difference between being “hurt” and being “injured.” For more information on federal Article III standing or the implications of Finkelman v. NFL, please contact Kathleen Barnett Einhorn, Esq., Director of the firm’s Complex Commercial Litigation Group at keinhorn@genovaburns.com, or Jennifer Borek, Esq., a Partner in the Complex Commercial Litigation Group at jborek@genovaburns.com