On Thursday, January 28, 2016, NFL fan Josh Finkelman filed a petition for a rehearing in the Third Circuit, asking that the court reconsider its decision to dismiss his proposed class action suit against the NFL for allegedly violating New Jersey state law by not releasing an adequate number of Super Bowl XLVIII tickets to the general public.
The proposed class action alleged that the NFL was in violation of New Jersey’s Consumer Fraud Act by releasing only one percent of Super Bowl XLVIII tickets to be sold to the general public, causing ticket prices to be unreasonably high in secondary markets. Pursuant to New Jersey’s Consumer Fraud Act, “[i]t shall be an unlawful practice for a person, who has access to tickets to an event prior to the tickets’ release for sale to the general public, to withhold those tickets from sale to the general public in an amount exceeding 5 percent of all available seating for the event.”
Finkelman contended that the NFL’s conduct resulted in him paying $4,000 for two tickets in MetLife Stadium’s upper deck, where he watched the Denver Broncos get blown out by the Seattle Seahawks 43-8. A second plaintiff, Ben Hoch-Parker, alleged that he could not purchase a ticket to the game because the cheapest seat he could find was $4,200. The NFL contended that the New Jersey statute was inapplicable because tickets were sold based on the league’s lottery system.
The district court dismissed the case based on a finding that the plaintiffs lacked standing to bring the suit. The court found that Hoch-Parker lacked standing because he did not actually purchase tickets to the game while Finkelman lacked standing because he failed to establish that the league’s conduct caused him to pay $2,000 per ticket when the face value of each ticket was $800. The plaintiffs appealed to the Third Circuit. On January 14, 2016, a three judge panel in the Third Circuit affirmed the district court’s ruling to dismiss the suit for lack of standing.
On Thursday, Finkelman filed a petition for a rehearing in the Third Circuit, urging the court to reconsider its decision. Finkelman’s petition argues that the Third Circuit’s precedential opinion creates a heightened pleading standard which requires plaintiffs to provide expert opinions within complaints in order to satisfy Article III standing. The petition contends that plaintiffs need only plead basic economic principals in the complaint, otherwise they would be forced to refute every possible anomaly of the marketplace.
Further, Finkelman argued that the Third Circuit reached its decision before discovery and without expert opinion. The petition provides, “[i]n an ironic analytic twist, in concluding that our price inflation theory was based on conjecture and speculation, the panel itself speculated that there was no causal connection between the wholesale restriction of available tickets and increased ticket prices in the secondary market. . . This flawed conclusion was reached based solely on the face of the pleadings and the panel elected not to await development of our damage model through expert testimony.”