199 A.3d 754
N.J.2019Background
- Josh Finkelman sued the NFL under N.J.S.A. 56:8-35.1 (a provision of the Ticket Resale Law / Consumer Fraud Act) challenging the NFL’s 2014 Super Bowl ticket allocation.
- Section 35.1 (in effect in 2014, repealed 2019) made it unlawful for a person with access to tickets prior to their release for sale to the public to withhold more than 5% of seating from public sale.
- The NFL held a lottery that made 1% of Super Bowl tickets available for purchase at face value to randomly selected members of the public; the remaining 99% were allocated to teams, broadcasters, sponsors, and other NFL-related entities.
- Finkelman alleged the NFL’s allocation amounted to unlawful withholding under § 35.1 because many of the non-lottery tickets ended up on the secondary market at premium prices; he sought CFA remedies including treble damages.
- District court dismissed for failure to state a claim; after interlocutory proceedings and an amended complaint, the Third Circuit certified two questions to the New Jersey Supreme Court about the statute’s scope and application to the NFL lottery.
Issues
| Issue | Finkelman’s Argument | NFL’s Argument | Held |
|---|---|---|---|
| Whether “person who has access to tickets … prior to the tickets’ release for sale to the general public” is limited to ticket brokers/resellers | Term is broader; statute’s separate definition of “ticket broker” shows §35.1 was not limited | Agreed §35.1 not limited to brokers but argued statute only applies when sponsor makes tickets available in a traditional public sale | Court: “person” includes corporations and other entities beyond brokers; not limited to ticket brokers (Answer: no, not limited) |
| Whether tickets sold to lottery winners were “released for sale to the general public” | Lottery constitutes a public release because winners were members of the general public and were sold tickets at face value | NFL disputed that lottery equals a public sale for §35.1 purposes | Court: The lottery did constitute a release for sale to the general public (Answer: yes) |
| Whether tickets allocated to teams/sponsors/etc. were “withheld … from sale to the general public” within §35.1 | Allocation of 99% to selected entities effectively withheld tickets from public sale in violation of the 5% rule | Those allocated tickets were never designated for the public sale (the lottery) and therefore not tickets that could be “withheld” from that sale | Court: Only tickets designated for the public release (the 1% lottery) are protected; tickets never destined for public sale were not “withheld” under §35.1 (Answer: no) |
Key Cases Cited
- Cashin v. Bello, 223 N.J. 328 (use statute’s plain language to determine legislative intent)
- DiProspero v. Penn, 183 N.J. 477 (statutory interpretation begins with the plain language)
- Manahawkin Convalescent v. O'Neill, 217 N.J. 99 (CFA remedial purpose to combat consumer fraud)
- Cox v. Sears Roebuck & Co., 138 N.J. 2 (background on CFA’s purpose)
- Gonzalez v. Wilshire Credit Corp., 207 N.J. 557 (CFA construed broadly for remedial purpose)
- Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255 (remedial statutes applied broadly)
- DePascale v. State, 211 N.J. 40 (different statutory terms imply different meanings)
- Spade v. Select Comfort Corp., 232 N.J. 504 (construe statutory language in context of related provisions)
- Johnson v. Roselle EZ Quick LLC, 226 N.J. 370 (statutory interpretation ends when language is clear)
- Richardson v. Board of Trustees, PFRS, 192 N.J. 189 (when plain language controls, inquiry ends)