Super Bowl Ticket Class Action Punted: No Standing

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By Perry Cooper

Jan. 14 — A proposed class action alleging the National Football League inflated Super Bowl ticket prices fails because the plaintiffs have no standing to sue, the Third Circuit affirmed.

Josh Finkelman bought two tickets to the 2014 Super Bowl in New Jersey on the resale market for $2,000 apiece; they had a face value of $800. Ben Hoch-Parker decided not to buy tickets when he saw how expensive they were for resale.

The two filed a class action against the NFL, alleging that the NFL's ticketing practices violated New Jersey law. They argued that the NFL distributed 99 percent of Super Bowl tickets to league insiders and only made 1 percent available to the general public, who had to enter a lottery for the chance to buy tickets.

The U.S. Court of Appeals for the Third Circuit held Jan. 14 that neither had constitutional standing to bring the case.

“Were we to decide otherwise, anyone who purchased a Super Bowl ticket on the resale market would have standing to sue in federal court based on nothing more than conjectural assertions of causation and injury,” the court said.

Ticket Law

The plaintiffs relied on the New Jersey “Ticket Law,” N.J. Stat. Ann. § 56.8–35.1, part of the state's Consumer Fraud Act.

That law makes it unlawful to withhold more than a certain number of tickets to an event from sale to the general public.

The district court held that the plaintiffs didn't plead a viable claim under the law, and that Finkelman failed to plead causation because he couldn't demonstrate that he suffered an injury from the NFL's alleged misconduct.

Hoch-Parker didn't have standing because he didn't show that he suffered any harm “beyond pure speculation and mere hypothetical,” the district court ruled.

‘Speculation Is Not Enough.'

The appeals court agreed that Hoch-Parker didn't suffer a “particularized” injury because he never purchased tickets to the game. The amount of damages he might have suffered due to the NFL's misconduct is “completely indeterminate,” it said.

But the appeals court criticized the district court for getting to the merits of Finkelman's claim because he also doesn't have standing.

He didn't adequately assert that his inability to buy a face-price ticket is fairly traceable to any actions by the NFL. Instead, any harm he suffered is properly attributed to his own decision not to enter the ticket lottery, the court said.

The court also rejected the argument that but for the NFL's alleged wrongdoing, the price Finkelman paid for a resold ticket would have been cheaper.

“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,” the court said. “We can only speculate—and speculation is not enough to sustain Article III standing.”

Nagel Rice LLP represented the plaintiffs.

Haynes & Boone LLP and Fox Rothschild LLP represented the NFL.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com