PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 16-4087

_______________

JOSH FINKELMAN, 

on behalf of himself and the Putative class,

 Appellant

v.

NATIONAL FOOTBALL LEAGUE; NFL VENTURES, 

L.P.; NFL PROPERTIES, L.L.C.; NFL VENTURES, INC.; 

NFL ENTERPRISES, L.L.C.

_______________

On Appeal from the United States District Court 

for the District of New Jersey

(D.C. No. 3-14-cv-00096)

District Judge: Honorable Peter G. Sheridan

_______________

Argued July 12, 2017

Before: SMITH, Chief Judge, FUENTES, Circuit Judge, and 

STARK,* Chief District Judge

 * Honorable Leonard P. Stark, Chief Judge of the United 

States District Court for the District of Delaware, sitting by 

designation.
2

(Opinion Filed: December 15, 2017)

Greg M. Kohn, Esq.

Bruce H. Nagel, Esq. [ARGUED]

Nagel Rice

103 Eisenhower Parkway

Roseland, NJ 07068

Counsel for Appellant

Karen A. Confoy, Esq.

Fox Rothschild

997 Lenox Drive

Princeton Pike Corporate Center, Building 3

Lawrenceville, NJ 08648

William Feldman, Esq.

Jonathan D. Pressment, Esq. [ARGUED]

Haynes & Boone

30 Rockefeller Center

26th Floor

New York, NY 10112

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________
3

FUENTES, Circuit Judge.

Plaintiff Josh Finkelman had the once-in-a-lifetime 

opportunity to buy tickets to Super Bowl XLVIII held in his 

home state of New Jersey in February 2014. However, the 

National Football League (“NFL”) withheld almost all of these 

tickets—99%—from the general public for league insiders, 

offering the remaining 1% to lucky winners of a lottery that all 

could enter. To get his tickets, Finkelman turned to the 

secondary market, purchasing two tickets with a face value of 

$800 each for $2000 each. One month before the Super Bowl,

he filed suit, alleging that the NFL’s ticket distribution violated 

New Jersey law. Specifically, Finkelman claims that the NFL’s 

withholding of more than 5% of the available tickets for the 

Super Bowl violated the New Jersey Ticket Law. He has now

had two opportunities before our Court to show that he has 

Article III standing to pursue this claim. In our first decision 

on this subject, we found that he did not. He has since added 

claims about how the NFL’s secondary ticket market 

functioned and how the NFL’s actions raised ticket prices on 

the secondary market. The District Court found that these 

additional allegations remained insufficient to allege 

Finkelman’s standing. We disagree. Based on the plausible

economic facts pleaded in Finkelman’s amended complaint, 

we conclude that Finkelman has standing and we therefore

have subject matter jurisdiction over this case. We defer action 

on the merits of this appeal pending decision by the Supreme 

Court of New Jersey on the pending petition for certification 

of questions of state law.

I. Background 
4

On February 2, 2014, Super Bowl XLVIII was held in 

New Jersey, at MetLife Stadium in East Rutherford. Finkelman

alleges that the NFL has a policy of withholding almost all 

Super Bowl tickets—99%—from the general public. Of these 

99%, he alleges that 75% of the withheld tickets are split 

among NFL teams, with 5% going to the host team, 17.5% 

going to each team playing in the Super Bowl, and 35% going 

to the remaining NFL teams. The remaining 25% of tickets are 

withheld for companies, broadcast networks, media sponsors, 

the host committee, and other “league insiders.” The 1% of 

tickets for public purchase are sold through a lottery system. In 

order to acquire a ticket in the lottery, a person has to enter by 

the deadline, be selected as a winner, and choose to actually 

purchase a ticket.

Finkelman alleges that he purchased two tickets on the 

secondary market. Although these tickets had a face value of 

$800 each, he purchased them for $2,000 per ticket. He did not 

enter the lottery to seek to win the 1% of tickets offered at face 

value to lucky members of the public.

In January 2014, Plaintiff Finkelman filed a putative 

class action in the District of New Jersey against the NFL and 

various affiliated entities, alleging that the Defendants violated 

New Jersey’s Ticket Law, N.J. Stat. Ann. § 56:8-35.1, by 
5

withholding more than 5% of tickets to the Super Bowl.1 This 

law, part of New Jersey’s Consumer Fraud Act (“CFA”),2

reads: 

It 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.

II. Procedural History

A. First District Court Decision

In the first round of this case, Defendants moved to 

dismiss Finkelman’s first amended complaint under Rule 

 1 Originally, this suit also included a second plaintiff, Ben 

Hoch-Parker, who alleged that he wanted to buy Super Bowl 

tickets but did not because of the high prices on the secondary 

market. The District Court found that he had no Article III 

standing to sue, and we affirmed that dismissal. See Finkelman 

v. Nat’l Football League, 810 F.3d 187, 195 (3d Cir. 2016). 

Thus, he is no longer in the case. Plaintiff originally also 

brought an unjust enrichment claim, but the operative 

complaint no longer includes this claim.

2 The CFA permits private plaintiffs to sue any person who 

violates the Act and causes them ascertainable damages. N.J. 

Stat. Ann. § 56:8-19.
6

12(b)(6) and the District Court granted the motion.3 Without 

addressing Article III standing, the District Court reasoned that 

Defendants never “withheld” tickets within the meaning of the 

Ticket Law because they did not keep tickets in their custody. 

Instead, they “allocated” 100% of all available tickets by 

giving 99% of them to NFL teams and other League insiders 

and holding a lottery to sell the remaining 1% of tickets. The 

District Court also concluded that Finkelman failed to plead 

causation under the CFA because he never entered the ticket 

lottery.

B. First Decision of Our Court

On appeal, we concluded that Finkelman did not 

establish Article III standing.

4 In doing so, we considered two 

theories Finkelman pleaded to prove standing. First, we

considered whether Finkelman had standing because the 

NFL’s ticket withholding prevented him from buying a ticket 

at face value. We found that he had not shown a causal 

connection between the NFL’s actions and the injury framed 

in this way, because Finkelman failed to enter the lottery to buy 

face value tickets. So, any harm that Finkelman suffered was 

properly attributed not to the NFL, but rather to his own 

decision not to enter the ticket lottery. Thus, Finkelman failed 

to allege standing on this theory.5

 3 Finkelman v. Nat’l Football League, D.C. No. 3:14-cv00096, Dkt. 54; App. Vol III 281. See also App. Vol. III 233-

80 (transcript of oral argument and opinion).

4 Finkelman, 810 F.3d at 197. We omit a discussion of HochParker’s standing since he is no longer in the case.

5 Id. at 197-99.
7

Second, we considered whether Finkelman had standing 

because the NFL’s ticket withholding policy increased the cost 

of the tickets that he purchased on the secondary market. Under 

this theory, his damages would not be the difference between 

the ticket’s face value and the price that he paid, but instead the 

difference between what he paid on the secondary market and 

what the tickets would have cost on the secondary market had 

the NFL not withheld tickets in alleged violation of the Ticket 

Law. 

However, we found that Finkelman had not pleaded

specific enough allegations to demonstrate that the NFL’s 

withholding actually did increase the price he paid for tickets 

on the secondary market. We noted the basic economic theory 

that limiting supply increases price. Thus, one could assume 

that the NFL’s restriction on the availability of Super Bowl

tickets to the public increased the price that Finkelman paid for 

his tickets. Unfortunately for Finkelman, this mere assumption 

was not enough to prove his standing. Under the scheme 

Finkelman pleaded, it was also possible that NFL insiders that 

had obtained non-public tickets were willing to resell to the 

public, so that supply was not artificially limited and the price 

inflated in the secondary market. Moreover, we posited that if 

some of those NFL insiders did not have to pay for their tickets 

originally, they might be willing to resell their tickets on the 

secondary market for less than a member of the public who 

paid face value would have done. So, the NFL’s withholding 

could have even lowered ticket prices on the secondary market.
8

We explained that to establish Article III standard based 

on this theory, under the familiar Twombly-Iqbal standard,

6

Finkelman needed to plead facts specific enough to allege that 

the NFL’s ticket withholding caused the price he paid for

tickets on the secondary market to rise. Because we could only 

speculate as to the effects the NFL withholding had on 

secondary ticket prices, the allegations were insufficient to 

establish Article III standing. We remanded to allow the 

District Court to exercise its discretion as to whether 

Finkelman should be granted leave to amend.7

C. Second Amended Complaint

The District Court granted Finkelman’s motion to 

amend the complaint,

8 and Finkelman filed a Second Amended 

Complaint.9 In it, Finkelman pursued only the second theory 

of standing, mapped out in our first opinion. To do so, 

Finkelman added facts alleged by Daniel Rascher, an 

economist who specializes in sports and ticketing on the 

workings of secondary ticket markets in events like the Super 

Bowl.10 Rascher concludes that the NFL’s withholding 

resulted in fewer tickets being available on the secondary 

market and higher prices for those tickets that were available. 

 6 Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. 

Twombly, 550 U.S. 544 (2007). 7 Finkelman, 810 F.3d at 199-203.

8 Finkelman, D.C. No. 3:14-cv-00096, Dkt. 82; App. Vol. III 

294.

9 Finkelman, D.C. No. 3:14-cv-00096, Dkt. 83; App. Vol. III 

295-336. 10 These factual allegations can be found at SAC ¶¶ 40-43, 

App. Vol. III at 308-17. 
9

In support of this conclusion, he explains that under the NFL’s 

current system, NFL insiders sell their tickets to a concentrated 

group of brokers, who in turn charge more for tickets on the 

secondary market. Without the NFL withholding, he posits that 

there would be more fan-to-fan direct sales of tickets, cutting 

out more brokers and allowing for lower prices. He explains

that NFL insiders are more likely to use brokers to resell their 

tickets than fans would be, either because the insiders are not 

technically allowed to sell their tickets or because they seek to 

avoid unwanted publicity from the sales. Rascher also states

that the NFL’s initial withholding adds an additional layer in

the supply chain (insider-to-broker sales), which results in 

higher prices for customers. He cites research by himself and 

other economists in support of these allegations.

D. Second District Court Opinion 

Defendants again moved to dismiss,11 and the District 

Court granted the motion.12 The District Court found that 

Finkelman had not proved standing because he did not enter 

the NFL’s ticket lottery and because the additional facts 

Finkelman alleged regarding causation were too conclusory. 

Furthermore, in the alternative, the District Court reasoned that 

even if Finkelman did have standing, Finkelman had not 

properly alleged a violation of the Ticket Law, reiterating its

interpretation of the Ticket Law from its first decision.

 11 Finkelman, D.C. No. 3:14-cv-00096, Dkt. 92; App. Vol. III 

337-38.

12 Finkelman, D.C. No. 3:14-cv-00096, Dkt. 104; App. Vol. I 

3-18.
10

III. Jurisdiction and Standard of Review

This is a diversity suit over which the District Court had 

jurisdiction pursuant to the Class Action Fairness Act.13 This 

Court has jurisdiction over the final judgment of the District 

Court under 28 U.S.C. § 1291. 

The Court’s review of a decision dismissing a 

complaint, as well as over questions of statutory interpretation, 

is plenary.14

IV. Discussion

Finkelman appeals the District Court’s judgment which 

followed our remand, arguing that he has properly pleaded

Article III standing and has properly pleaded a claim under the 

Ticket Law to overcome Defendants’ Rule 12(b)(6) motion to 

dismiss.

 13 See 28 U.S.C. § 1332(d)(2)(A) (“The district courts shall 

have original jurisdiction of any civil action in which the 

matter in controversy exceeds the sum or value of $5,000,000, 

exclusive of interest and costs, and is a class action in 

which . . . any member of a class of plaintiffs is a citizen of a 

State different from any defendant”).

14 Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 601 (3d Cir. 

2015); United States v. Berberena, 694 F.3d 514, 519 n.7 (3d 

Cir. 2012). 
11

Because “[w]ithout jurisdiction the court cannot 

proceed at all in any cause,”15 we first consider whether 

Finkelman has alleged facts sufficient to establish Article III 

standing at this stage in the litigation. To establish Article III 

standing, a plaintiff must allege “(1) an injury-in-fact, (2) a 

sufficient causal connection between the injury and the 

conduct complained of, and (3) a likelihood that the injury will 

be redressed by a favorable decision.”16

First, to state an injury-in-fact, a plaintiff must allege 

“the invasion of a concrete and particularized legally protected 

interest resulting in harm that is actual or imminent, not 

conjectural or hypothetical.”17 In turn, “[a] harm is 

particularized if it affects the plaintiff in a personal and 

individual way. It is concrete if it is de facto; that is, it must 

actually exist rather than being only abstract.”18 “While it is 

difficult to reduce injury-in-fact to a simple formula, economic 

injury is one of its paradigmatic forms.”19

To show causation, the alleged injury must be “fairly 

traceable to the challenged action of the defendant, and not the 

result of the independent action of some third party not before 

 15 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 

(1998).

16 In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 

272 (3d Cir. 2016) (internal citations omitted).

17 Id. (internal citations and quotations omitted).

18 Id. (internal citations, quotations, and alterations omitted).

19 Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 291 

(3d Cir. 2005).
12

the court.”20 Causation in this context is akin to ‘but-for’

causation in tort and “may be satisfied even where the conduct 

in question might not have been a proximate cause of the 

harm.”21 To satisfy it, “an indirect causal relationship will 

suffice, provided that there is a fairly traceable connection 

between the alleged injury-in-fact and the alleged conduct of 

the defendant.”22

To show redressability, a plaintiff must show that it is 

“likely, as opposed to merely speculative, that the alleged 

injury will be redressed by a favorable decision.”23

The plaintiff bears the burden of proving standing.24

“[E]ach element must be supported in the same way as any 

other matter on which the plaintiff bears the burden of proof, 

i.e., with the manner and degree of evidence required at the 

successive stages of the litigation.”25 Thus, at this stage of the 

 20 Finkelman, 810 F.3d at 193 (internal citation omitted).

21 Id. (internal citations and quotations omitted).

22 Id. at 193-94 (internal citations and quotations omitted).

23 Id. at 194 (internal citations and quotations omitted).

24 Danvers, 432 F.3d at 291.

25 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
13

litigation, we use the same standard we apply when assessing 

a motion to dismiss for failure to state a claim.26

To do so, “[f]irst, we take note of the elements a plaintiff 

must plead to state a claim—here, the three elements of Article 

III standing. Second, we eliminate from consideration any 

allegations that, because they are no more than conclusions, are 

not entitled to the assumption of truth. Third, where there are 

well-pleaded factual allegations, we assume their veracity and 

then determine whether they plausibly establish the

prerequisites of standing.”27 If Finkelman cannot establish 

standing, we must dismiss for lack of subject matter 

jurisdiction.28

 26 Finkelman, 810 F.3d at 194 (internal citation omitted).

Plaintiff argues that his pleadings do not have to meet the 

standard of Twombly and Iqbal in order to allege standing at 

this phase. We need not reach this question—we continue to 

apply the same standard that we did in the first opinion in this 

case. See Finkelman, 810 F.3d at 194 n.5 (“Some of our sister 

circuits have questioned how well the ‘plausibility’ standard of 

Iqbal and Twombly maps onto standing doctrine . . . . Without 

wading too deeply into this particular thicket, we are content 

to say that, even when reviewing only the bare allegations of a 

complaint, Iqbal and Twombly teach that standing cannot rest 

on mere “legal conclusions” or “naked assertions.”).

27 Id. (internal citations, quotations, and alterations omitted).

28 Id. at 195 (citing Neale v. Volvo Cars of N. Am., LLC, 794 

F.3d 353, 362 (3d Cir. 2015) (“[T]he ‘cases or controversies’ 

requirement is satisfied so long as a class representative has 

standing.”)).
14

In finding that Finkelman had not properly alleged 

standing in our initial opinion, we compared this case to 

Dominguez v. UAL Corp., in which the D.C. Circuit reversed 

the district court’s grant of summary judgment in favor of the 

defendant and found that the plaintiff lacked standing to sue.29

We noted that in that case, “[t]he plaintiff . . . sued United Air 

Lines under the federal antitrust laws, asserting that United’s 

prohibition on reselling airplane tickets deprived him of a 

secondary market in which he might have been able to 

purchase tickets for less money than he paid United.”30 To 

allege that United’s prohibition had caused him an injury-infact, the plaintiff had offered testimony from an expert who had 

surveyed United customers and concluded that “a high 

percentage of respondents would consider using a feature that 

allowed them to legally sell or give away airline tickets they 

are unable to use.”31 The D.C. Circuit found this insufficient to 

show standing because the plaintiff’s expert “did not take into 

account costs associated with running a secondary market” 

such as the costs of changing United’s reservation system, the 

possible introduction of new, seller-imposed fees, and other 

factors that might influence prices in a hypothetical resale 

market.32 Thus, like Finkelman in his earlier complaint, the 

plaintiff could only speculate as to whether an end to United’s 

prohibition would have led to lower ticket prices.

Here, however, in his amended complaint, Finkelman

has offered specific factual allegations above and beyond those 

described in Dominguez. Finkelman did not just allege that 

 29 666 F.3d 1359 (D.C. Cir. 2012).

30 Finkelman, 810 F.3d at 201. 31 Dominguez, 666 F.3d at 1363.

32 Id. at 1363-64.
15

prices would be lower on the secondary market were it not for 

the NFL’s withholding. Instead, Finkelman alleged a causal 

chain justifying why the NFL’s withholding set into motion a 

series of events that ultimately raised prices on the secondary 

market. Specifically, Finkelman alleged that the insiders to 

whom the NFL presently provides tickets are more likely to resell those tickets through third-party brokers to keep those sales 

anonymous, and those brokers in turn are more likely to charge 

higher prices. But if more tickets were made available to fans

initially, fans would be more likely than the NFL insiders are 

to sell through direct fan-to-fan sales, and the prices would 

likely be lower.

33

Given Finkelman’s additional factual allegations, a 

different D.C. Circuit case, Osborn v. Visa Inc.,

34 is more 

instructive. In that case, users and operators of non-bank 

Automated Teller Machines (ATMs) sued Visa, MasterCard, 

and affiliated banks alleging anticompetitive behavior in 

pricing ATM access fees. In their complaint, the plaintiffs 

alleged that in the absence of the defendants’ anticompetitive 

behavior, ATM operators would charge MasterCard and Visa 

customers higher rates than non-MasterCard and Visa 

customers. This, in turn, would drive customers to pressure 

their banks to offer cards using networks other than

MasterCard or Visa, which would make this market more 

competitive and result in more choice of networks, lower fees 

for consumers, and greater profits for non-bank ATM 

operators.35 In granting the defendants’ motion to dismiss, the 

 33 SAC ¶ 40, App. Vol. III 312-14.

34 797 F.3d 1057, 1063 (D.C. Cir. 2015).

35 Id. at 1063.
16

D.C. District Court found that the plaintiff’s allegations 

constituted an “attenuated, speculative chain of events[ ] that 

relies on numerous independent actors” and dismissed the 

complaint.36

On appeal, the D.C. Circuit reversed. It held that “the 

District Court was demanding proof of an economic theory that 

was not required in a complaint.”37 The Court noted:

At the pleadings stage, a court must accept as true all 

material allegations of the complaint, an obligation that 

we have recognized might appear to be in tension with 

the Court’s further admonition that an allegation of injury 

or of redressability that is too speculative will not suffice 

to invoke the federal judicial power. But this ostensible 

tension is reconciled by distinguishing allegations of 

facts, either historical or otherwise demonstrable, from 

allegations that are really predictions. Thus, when 

considering any chain of allegations for standing 

purposes, we may reject as overly speculative . . . those 

types of allegations that are not normally susceptible of 

labelling as “true” or “false.”38

 36 Id. (quoting Nat’l ATM Council, Inc. v. Visa Inc., 7 F. Supp. 

3d 51, 60 (D.D.C. 2013)). See also id. at 1064 (“The District 

Court reasoned that the protracted chain of causation alleged 

by Plaintiffs fails both because of the uncertainty of several 

individual links and because of the number of speculative links 

that must hold for the chain to connect the challenged acts to 

the asserted particularized injury.”) (internal citations and 

quotations omitted)). 37 Id. at 1063.

38 Id. at 1064 (internal citations and quotations omitted).
17

The D.C. Circuit found that the plaintiffs’ theory was 

“susceptible to proof at trial.”39 It noted that the complaint 

contained “factual details” supporting the “alleged causal link” 

between the defendants’ behavior and plaintiffs’ economic 

harm.40 The Court acknowledged that the plaintiffs’ allegations 

did “rely on certain economic assumptions about supply and 

demand” but noted that “these sorts of assumptions are 

provable at trial.”41 Distinguishing Dominguez and other cases 

decided on summary judgment, the Court noted that the 

plaintiffs had no obligation to offer evidence of their theory 

here, as “[a] Rule 12(b)(1) motion . . . is not the occasion for 

evaluating the empirical accuracy of an economic theory.”42

The Court concluded that “[b]ecause the economic facts 

alleged by the Plaintiffs are specific, plausible, and susceptible 

to proof at trial, they pass muster for standing purposes at the 

pleadings stage.”43

In this case, too, Finkelman has offered economic facts 

that are specific, plausible, and susceptible to proof at trial. 

Defendants may be correct that Finkelman will not be able to 

prove that the 2014 Superbowl secondary ticket market worked 

as he claims. Defendants remain free to bring a factual 

challenge to jurisdiction disputing just that. But Finkelman is 

not required to prove his economic theory in his complaint,

 39 Id. at 1065.

40 Id.

41 Id. See also id. (“Indeed, allegations of economic harm 

‘based on standard principles of “supply and demand”’ are 

‘routinely credited by courts in a variety of contexts.’”) 

(quoting Adams v. Watson, 10 F.3d 915, 923 (1st Cir. 1993).

42 Id. at 1065-66.

43 Id. at 1066.
18

and, at this stage in the litigation, Finkelman has alleged 

sufficient factual allegations to show that Defendants’ 

withholding raised the price that he paid for tickets on the 

secondary market. Thus, Finkelman has Article III standing.

V. Conclusion 

We reverse the District Court and find that we have 

subject matter jurisdiction over this matter. We defer action on 

the merits of this appeal pending a decision by the Supreme 

Court of New Jersey on a petition for certification of questions 

of state law. We shall retain jurisdiction over the appeal 

pending resolution of the certification.