NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 16-4087

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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

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Argued July 12, 2017

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

Chief District Judge

(Opinion Filed: January 31, 2019)

 * Honorable Leonard P. Stark, Chief Judge of the United States District Court for the 

District of Delaware, sitting by designation.
2

Greg M. Kohn, Esq.

Bruce H. Nagel, Esq. [ARGUED]

Robert H. Solomon, Esq.

Andrew I. Pepper, Esq.

Diane E. Sammons, Esq.

Nagel Rice

103 Eisenhower Parkway

Roseland, NJ 07069

Attorney for Appellants

Karen A. Confoy, Esq.

Steven J. Daroci, Esq.

Fox Rothschild

997 Lenox Drive

Princeton Pike Corporate Center, Building 3

Lawrenceville, NJ 08648

Jonathan D. Pressment, Esq. [ARGUED]

William Feldman, Esq.

Haynes & Boone

30 Rockefeller Center

26th Floor

New York, NY 10112

Attorneys for Appellees

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OPINION OF THE COURT

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FUENTES, Circuit Judge.

Plaintiff Josh Finkelman brought this suit against the National Football League 

(“NFL”) in 2014, alleging that the NFL’s ticket distribution for the Super Bowl that year 

violated the New Jersey Ticket Law. According to Finkelman, the NFL designated 99% 
3

of Super Bowl tickets for distribution to NFL teams, companies, broadcast networks, media 

sponsors, the Super Bowl host committee, and league insiders. The remaining 1% of 

tickets were sold through a lottery system available to the general public. Finkelman 

alleges that this practice violates Section 35.1 of the Ticket Law, which made it unlawful 

for a person “who has access to tickets to an event prior to the tickets’ release for sale to 

the general public” to withhold more than 5% of those tickets.1

I. Background and Prior Opinions

We first assessed this case in 2016 and concluded that Finkelman lacked standing 

because he had not alleged that the NFL’s allegedly unlawful practice of withholding more 

than 5% of the available tickets for the Super Bowl caused price inflation on the resale 

market. We then remanded to the District Court to consider whether amendment was 

appropriate. The District Court granted Finkelman leave to amend, and then again 

dismissed the case. In 2017, the case came before us for the second time. We considered 

both the standing issue and the District Court’s conclusion that Finkelman did not allege a 

violation of the Ticket Law because the NFL’s actions were better understood as 

“allocating” tickets to NFL teams and league insiders rather than “withholding” tickets 

from the general public. While we determined that Finkelman had met the Article III 

standing requirements, we certified the second issue to the New Jersey Supreme Court:

(1) Does Plaintiff Josh Finkelman properly plead a claim 

under the New Jersey Ticket Law, N.J. Stat. Ann. § 

56:8-35.1?

 1 N.J. Stat. Ann. § 56:8-35.1.
4

II. Certification

The New Jersey Supreme Court accepted the certified question on February 1, 2018, 

but reformulated it pursuant to New Jersey Court Rule 2:12A-2 as follows:

(1) Is the term “person[] who has access to tickets to an 

event prior to the tickets’ release for sale to the general 

public,” as that term is used in [Section 35.1], limited to 

ticket brokers and resellers?

(2) Are tickets to an event that are sold to winners of a 

lottery “release[d] for sale to the general public” within 

the meaning of [Section 35.1], and, if so, are tickets 

distributed to selected entities “[withheld] . . . from sale 

to the general public” within the meaning of [Section 

35.1]?2

In a thorough opinion issued January 9, 2019, the New Jersey Supreme Court 

answered the first question in the negative, concluding that the plain language of the statute 

made clear that the legislature intended that portion of the Ticket Law to include any person 

or entity with access to tickets prior to release, not only brokers and resellers.3

 Next, it 

determined that the ticketing scheme at issue here, in which the NFL ran a lottery to allow

the general public access to 1% of tickets to the Super Bowl, constituted a “release for sale 

to the general public.”4

 The court reasoned that the lottery winners were members of the 

general public and that nothing in the Ticket Law suggested that a “release” required that 

tickets be made available “to any member of the public who wants to purchase them.”5

 

 2 Finkelman v. Nat’l Football League, No. 080501, 2019 WL 149446, at *3 (N.J. Jan. 9, 

2019).

3 Id. at *7.

4 Id. at *8.

5 Id.
5

Finally, the New Jersey Supreme Court turned to the meaning of the Ticket Law’s 

prohibition on withholding tickets from sale to the general public. The court concluded 

that the statute was designed not to impose a limit on withholding any tickets, but to limit 

“only the withholding of the subset of tickets that would otherwise be made available in a 

public sale.”6

 Because 99% of the Super Bowl tickets were “never destined to be part of a 

public sale,” the New Jersey Supreme Court concluded that the NFL’s ticket selling scheme 

did not run afoul of the Ticket Law.7

III. Analysis

There is little left for us to do. Applying the conclusions of the New Jersey Supreme 

Court, it is clear that Finkelman does not have a claim against the NFL, and the District 

Court appropriately concluded that the Complaint could not survive under Federal Rule of 

Civil Procedure 12(b)(6).

IV. Conclusion 

For the reasons set forth above, we will affirm the decision of the District Court.

 6 Id. at *9.

7 Id.