On January 14, 2016, the Third Circuit held that two New Jersey football fans lacked standing to bring a class action suit against the NFL alleging that the league violated state law by withholding public access to an excessive amount of Super Bowl XLVIII tickets.
The suit 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. One of the fans bringing suit, Josh Finkleman, contended that he paid $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. The other 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 statute was inapplicable because tickets were sold based on the league’s lottery system.
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% of all available seating for the event.”
The district court dismissed the case based on a finding that both 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 Finkleman 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 Thursday, the district court decision was affirmed by a three-judge panel in the Third Circuit. Third Circuit Judge, Julio M. Fuentes, provided a precedential opinion, asserting that the entire case should have been dismissed based on lack of constitutional standing. First, the Third Circuit agreed with the district court in that Hoch-Parker lacked standing because he did not actually purchase a ticket to the game. Moreover, the opinion provided that neither Finkleman or Hoch-Parker could establish that they suffered an “injury” as required for standing because neither plaintiff took part in the NFL’s lottery system. The Third Circuit reasoned that Finkleman could not establish a connection between the NFL policy and the high ticket price he paid because he denied himself of the opportunity to purchase tickets at face value in the lottery.
Additionally, the Third Circuit considered the possibility of establishing standing based on a theory that the NFL’s policy caused increased ticket prices in secondary markets. However, the court was not persuaded by this theory because it would require too much speculation to support standing.
Judge Fuentes wrote, “[t]o state the problem succinctly: we have no way of knowing whether the NFL’s withholding of tickets would have had the effect of increasing or decreasing prices on the secondary market. . . [w]e can only speculate – and speculation is not enough to sustain an Article III standing.”