NOT PRECEDENTIAL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

(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 Appellant s

Karen A. Confoy, Esq. Steven J. Daroci, Esq. Fox Rothschild 997 Lenox Drive Princeton Pike Corporate Center, Buil ding 3 Lawrenceville, NJ 08648

Jonathan D. Pressment, Esq. [ARGUED] William Feldma n, Esq. Haynes & Boone 30 Rockefeller Center 26th Floor New York, NY 10112 Attorneys for Appellee s

_______________

OPINION OF THE COURT

_______________

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 L aw

. According to Finkelman, the NFL designated 99 %3 of Super Bowl tickets for distribution to NF L 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 availa ble to the general public. Finkel man

allege s that this practice violate s Sect ion 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 i n 201 6 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

marke t. 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. I n 2017, the case came before us for the second time . We considered

both th e 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

fro m 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 Je rsey Supreme Court accepted the certified question on February 1, 2018,

but re formulated 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 pub lic,” as that term is used in [S ection 35.1], limited to ticket brokers and re sellers?

(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 [S ection 35.1], and, if so, are tickets distributed to selected entities “[withheld] . . . from sale to the general public” within the meaning of [ S ection 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 b rokers 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 r easoned 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 L eague , 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 Su preme 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 withholdin g 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.