M ORE L AW
LEXAPEDIA
Salus Populi Suprema Lex Esto

Information
About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 01-21-2019

Case Style:

Josh Finkelman v. National Football League

Case Number: A-38-17

Judge: Anne M. Patterson

Court: SUPREME COURT OF NEW JERSEY

Plaintiff's Attorney: Bruce H. Nagel
Robert H. Solomon
Greg M. Kohn

Defendant's Attorney: Jonathan D. Pressment
William Feldman
Karen A. Confoy
Allison L. Hollows

Description:





http://www.haynesboone.com/people/f/feldman%20william
In this appeal, we review questions certified by the United States Court
of Appeals for the Third Circuit. The Third Circuit certified the questions in
the course of its review of Josh Finkelman’s putative class action against
defendants, the National Football League and related entities (NFL), arising
from the NFL’s distribution of tickets to the 2014 Super Bowl.
The certified questions concern N.J.S.A. 56:8-35.1 (section 35.1), a
consumer protection statute that regulates ticket sales to sports and
entertainment events. Section 35.1 provides:
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.

The law was in force when the Super Bowl was held in New Jersey on
February 2, 2014. The Legislature, however, has since repealed section 35.1,
effective February 1, 2019.
3

The NFL, following its established practice for Super Bowl games, sold
one percent of the tickets to the 2014 Super Bowl to members of the public
who had won the right to purchase those tickets in an NFL-sponsored lottery.
The NFL gave the remaining ninety-nine percent of the tickets to teams,
broadcast networks, corporate sponsors, and other individuals and entities.
Plaintiff Josh Finkelman alleges that the NFL’s allocation of the 2014
Super Bowl tickets constituted “withhold[ing]” of an excessive percentage of
those tickets contrary to section 35.1. In his individual capacity and as the
representative of a proposed class of individuals who either bought 2014 Super
Bowl tickets at premium prices on the secondary market or could not afford to
do so, plaintiff seeks various remedies including treble damages under the
Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210. The United States
District Court for the District of New Jersey dismissed the action pursuant to
Fed. R. Civ. P. 12(b)(6), and plaintiff appealed.
The Third Circuit submitted the following certified question to this
Court: “Does plaintiff Josh Finkelman properly plead a claim under the New
Jersey Ticket Law, N.J.S.A. 56:8-35.1?” We accepted the certified question
and reformulated it 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
4

[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]?

In response to the Third Circuit’s inquiry, we construe the term “person”
in section 35.1 to include not only ticket brokers and resellers, but also other
individuals and entities with “access to tickets to an event prior to the tickets’
release for sale to the general public.” N.J.S.A. 56:8-35.1. We view the sale
of tickets to winners of the NFL’s ticket lottery to constitute a “release for sale
to the general public” within the meaning of section 35.1.
We conclude, however, that the Super Bowl tickets sold to lottery
winners were the only 2014 Super Bowl tickets designated by the NFL for
“release for sale to the general public” within the meaning of section 35.1.
Accordingly, we do not consider the NFL’s distribution of other tickets to the
2014 Super Bowl to its teams, other selected individuals, and entities to
constitute the unlawful withholding of more than five percent of “tickets to an
event prior to the tickets’ release for sale to the general public” under section
35.1.

5

I.
We derive our summary of the facts and procedural history from the
Third Circuit’s Certification of Questions of Law, the pleadings and briefs, and
the record submitted by the parties.
A.
In 1983, the Legislature enacted the Ticket Resale Law, N.J.S.A.
56:8-26 to -38, as a provision of the CFA. L. 1983, c. 135. Pursuant to the
Ticket Resale Law, the Division of Consumer Affairs in the Department of
Law and Public Safety (Division) licenses ticket brokers and regulates those
brokers’ reselling of tickets for admission to “places of entertainment.”
N.J.S.A. 56:8-27 to -35.1
In 1997, Governor Whitman appointed the Ticket Brokering Study
Commission to assess the efficacy of the Ticket Resale Law and recommend
amendments to it. Among other suggestions, the Commission urged the
Legislature to eliminate or curtail “the holding back of tickets” from initial

1 The Ticket Resale Law defines a “place of entertainment” to include “any privately or publicly owned and operated entertainment facility within this State, such as a theater, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held and for which an entry fee is charged.” N.J.S.A. 56:8-26(d). The Legislature exempted from the Ticket Resale Law “any person who sells, raffles or otherwise disposes of the ticket for a bona fide nonprofit or political organization when the premium proceeds are devoted to the lawful purposes of the organization.” N.J.S.A. 56:8-38.
6

sales, so that “the greatest number of tickets will be available to the greatest
number of ordinary fans on the initial sale to the public.” Ticket Brokering
Study Comm’n, Dep’t of Consumer Affairs, Ticket Broker Report 19 (Oct. 31,
2001).
Following the Commission’s report, the Legislature enacted section 35.1
as a new provision of the Ticket Resale Law and amended the Ticket Resale
Law in several other respects. The amendment was signed into law on January
8, 2002. Section 35.1 remained in effect throughout the period relevant to this
appeal.
On August 24, 2018, the Legislature amended the Ticket Resale Law in
several respects, effective on February 1, 2019. As part of that amendment,
the Legislature repealed section 35.1 and two other provisions enacted as part
of the 2002 amendments, N.J.S.A. 56:8-35.2 and -35.3. L. 2018, c. 117, § 6.
B. In February and March 2010, the New Jersey Senate and Assembly
passed resolutions urging the NFL to hold the 2014 Super Bowl in New Jersey.
Later that year, the NFL announced that the 2014 Super Bowl would be held at
MetLife Stadium.
Consistent with its practice in prior Super Bowl games held at stadiums
in other states, the NFL did not release the tickets to the 2014 Super Bowl to a
7

ticket broker for a public sale. Instead, it reserved one percent of the tickets
for the winners of a lottery conducted in 2013. The remaining ninety-nine
percent of the tickets that were not included in the lottery were allocated as
follows: five percent of the remaining tickets were shared by the host teams,
the New York Giants and the New York Jets; thirty-five percent were shared
by the teams that played in the Super Bowl, the Denver Broncos and the
Seattle Seahawks; thirty-five percent were distributed to other NFL teams; and
twenty-five percent were given to NFL-connected individuals and entities
including corporations, broadcast networks, media outlets, sponsors, and the
Super Bowl host committee.
II.
In a putative class action complaint filed in the district court, plaintiff
and another class representative2 alleged that defendants committed an
unlawful practice under section 35.1 by withholding more than five percent of
Super Bowl tickets from sale to the general public. Plaintiff contended that
some of the tickets allocated to the NFL teams not playing in the Super Bowl
were sold to ticket brokers, who in turn sold those tickets on the secondary
market at inflated prices. He asserted that, as a result of defendants’ violation

2 The other representative is no longer a party to this matter.
8

of section 35.1, the two tickets he purchased on the secondary market were
bought at an inflated price: two thousand dollars for each ticket, more than
twice each ticket’s face value of eight hundred dollars. Plaintiff sought
certification of a class including “all persons who paid for, or will pay for, or
could not afford to pay for tickets to [the 2014 Super Bowl] in excess of the
printed ticket price.”
Pursuant to Fed. R. Civ. P. 12(b)(6), the district court granted
defendants’ motion to dismiss plaintiff’s complaint for failure to state a claim.
In addition to addressing plaintiff’s and the other class representative’s
standing, plaintiff’s claim for unjust enrichment, and the question of causation,
the district court found that defendants did not commit an unlawful practice
under section 35.1. The court reasoned that because the NFL did not
“withhold” tickets as that term is used in section 35.1 and did not release those
tickets to the general public, the NFL’s method of allocating those tickets did
not contravene the statute.
The Third Circuit affirmed in part and reversed in part the district
court’s decision. Finkelman v. NFL, 810 F.3d 187, 203 (3d Cir. 2016). The
circuit court affirmed the determination that the other class representative
lacked standing but reversed as to plaintiff, finding that he also lacked
9

standing. The panel therefore dismissed plaintiff’s claims without prejudice
for lack of subject matter jurisdiction. Ibid.
In an amended complaint, plaintiff expanded his allegation that the NFL
violated section 35.1 in its distribution of tickets to the 2014 Super Bowl and
supported that allegation with an expert’s report. The district court again
granted defendants’ motion to dismiss for failure to state a claim under Fed. R.
Civ. P. 12(b)(6). In addition to determining standing and CFA causation
questions, the district court held that plaintiff failed to state a claim under
section 35.1. It construed section 35.1 to apply only to ticket brokers, not to
event sponsors such as the NFL, and concluded that the NFL had not
“withheld” tickets because it had not retained tickets in its custody.
Plaintiff again appealed the district court’s judgment. After addressing
the district court’s rulings on standing and causation, the Third Circuit issued
its certified question in accordance with Rule 2:12A-1. We accepted the
certified question and reformulated it pursuant to Rule 2:12A-2. We also
granted the motion of the New Jersey Business and Industry Association
(NJBIA) to appear as amicus curiae.
III.
Plaintiff contends that N.J.S.A. 56:8-35.1 is not limited to ticket brokers
and resellers because the Legislature’s definition of “person” is broader than
10

its definition of “ticket broker.” He claims that that the NFL’s Super Bowl
ticket lottery constituted a release of tickets for sale to the general public for
purposes of section 35.1. Plaintiff argues that the NFL’s allocation of ninety
nine percent of the Super Bowl tickets to individuals and entities connected to
its operations constitutes a “withholding” of tickets for sale within the meaning
of section 35.1.
The NFL agrees that section 35.1 does not limit the definition of a
“person” to ticket brokers and resellers. It contends, however, that Super Bowl
tickets purchased by lottery winners were not released to the general public for
purposes of section 35.1. The NFL construes the statute to apply only to
events for which the sponsor makes tickets available to the general public, and
argues that the 2014 Super Bowl did not constitute such an event.
Amicus curiae NJBIA argues that the NFL was not a “person” with
access to tickets “release[d] for sale to the general public” within the meaning
of section 35.1. It asserts that even if the NFL’s lottery constitutes a sale of
tickets “to the general public” under the statute, the NFL did not withhold any
of “those tickets” from the lottery, and therefore did not violate section 35.1.



11

IV.
A.
When we interpret a statute, we strive to effectuate the Legislature’s
intent. Cashin v. Bello, 223 N.J. 328, 335 (2015); DiProspero v. Penn, 183
N.J. 477, 492 (2005). We begin with the “best indicator” of that intent, the
statute’s plain language. DiProspero, 183 N.J. at 492. Unless it is
“inconsistent with the manifest intent of the legislature,” or “another or
different meaning is expressly indicated,” we ascribe to the Legislature’s
words and phrases “their generally accepted meaning, according to the
approved usage of the language.” N.J.S.A. 1:1-1. We construe the statutory
language “in context with related provisions so as to give sense to the
legislation as a whole.” Spade v. Select Comfort Corp., 232 N.J. 504, 515
(2018) (quoting N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J.
541, 570 (2017)).
“If the plain language leads to a clear and unambiguous result, then [the]
interpretative process is over.” Johnson v. Roselle EZ Quick LLC, 226 N.J.
370, 386 (2016) (quoting Richardson v. Bd. of Trs., PFRS, 192 N.J. 189, 195
(2007)). The Court “may turn to extrinsic evidence [of legislative intent],
‘including legislative history [and] committee reports’” when the statutory
language is ambiguous. DiProspero, 183 N.J. at 492-93 (quoting Cherry Hill
12

Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). “Such ambiguity can arise
when a statute ‘is subject to varying plausible interpretations,’ or when literal
interpretation of the statute would lead to a result that is inherently absurd or at
odds with either public policy or the overarching statutory scheme of which it
is a part.” Cashin, 223 N.J. at 336 (quoting State v. Fleischman, 189 N.J. 539,
548 (2007)).
Section 35.1 is a provision of the CFA, a remedial statute enacted “to
combat ‘sharp practices and dealings’ that victimized consumers by luring
them into purchases through fraudulent or deceptive means.” Manahawkin
Convalescent v. O’Neill, 217 N.J. 99, 121 (2014) (quoting Cox v. Sears
Roebuck & Co., 138 N.J. 2, 16 (1994)). Accordingly, the statute is “applied
broadly in order to accomplish its remedial purpose, namely, to root out
consumer fraud.” Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 576 (2011)
(quoting Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 264
(1997)).
B.
1.
Section 35.1 provides that it is an unlawful act 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
13

exceeding 5% of all available seating for the event.” N.J.S.A. 56:8-35.1. Our
first inquiry is whether the term “person,” as used in that provision, denotes
only ticket brokers and resellers, or whether it applies more broadly to other
individuals and entities who have “access” to tickets prior to their release for
sale to the general public.
The plain language of the Ticket Resale Law clearly establishes that the
Legislature did not intend to limit section 35.1’s reach to ticket brokers and
resellers. The Legislature defined “ticket broker” to mean “any person situated
in and operating in this State who is involved in the business of reselling
tickets of admission to places of entertainment and who charges a premium in
excess of the price, plus taxes, printed on the tickets,” subject to certain
specified exclusions. N.J.S.A. 56:8-26(f). That term appears in provisions of
the Ticket Resale Law that address the licensing and regulation of ticket
brokers and limit the premium that can be collected by resellers who are not
registered ticket brokers. See N.J.S.A. 56:8-27, -28, -29, -30, -33, -35.2. In
short, the Legislature intended certain provisions of the Ticket Resale Law to
specifically address the activities of ticket brokers, and accordingly used that
term. Ibid.
In contrast, the Legislature used the term “person” in section 35.1 and
several other provisions of the Ticket Resale Law. N.J.S.A. 56:8-35.1; see
14

also N.J.S.A. 56:8-33(b) (barring any “person other than a registered ticket
broker” from reselling, or purchasing with the intent to resell, “a ticket for
admission to a place of entertainment” at a premium in excess of the
prescribed amount); N.J.S.A. 56:8-34 (prohibiting, with exceptions identified
in the statute, any “person” from reselling or purchasing with the intent to
resell in specified areas “adjacent to or in the vicinity of any place of
entertainment in this State as determined by the [Director of the Division]”);
N.J.S.A. 56:8-35 (providing that a “person who gives or offers anything of
value to an employee of a place of entertainment in exchange for, or as an
inducement to, special treatment with respect to obtaining tickets” violates the
statute); N.J.S.A. 56:8-35.4 (prohibiting “any person” from using a “digger” to
acquire any ticket). The term “person” is defined for purposes of the Ticket
Resale Law to include “corporations, companies, associations, societies, firms,
partnerships and joint stock companies as well as individuals.” N.J.S.A. 56:8
26(c).
Section 35.1’s plain language thus evinces a legislative intent to apply
the statute not only to ticket brokers and resellers, but also to a broader class of
individuals and entities with “access to tickets to an event prior to the tickets’
release for sale to the general public.” See DePascale v. State, 211 N.J. 40, 73
(2012) (“[W]hen the legislature uses certain language in one part of the statute
15

and different language in another, the court assumes different meanings were
intended.” (quoting Norman J. Singer & J.D. Shambie Singer, 2A Sutherland
Statutory Construction § 46:6 (7th ed. 2007))). Accordingly, we conclude that
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, is
not limited to ticket brokers and resellers, and answer the first certified
question in the negative.
2.
We next consider whether tickets sold to winners of the NFL’s lottery
were “release[d] for sale to the general public” within the meaning ofsection
35.1.
The record reveals that the NFL conducted its 2014 Super Bowl ticket
lottery in order to make a limited number of tickets available to the general
public. The public was invited to submit entries for two components of the
lottery, one for wheelchair-accessible seating and the other for non
wheelchair-accessible seating, by a specific deadline months before the 2014
Super Bowl. Winners were selected by random drawing.
Each lottery winner was permitted to purchase two tickets at the tickets’
face value. To deter the resale of lottery winners’ tickets, the NFL required
16

each winner to personally pick up his or her tickets at the stadium box office
on the day of the Super Bowl.
Applying section 35.1’s plain language, it is clear that the ticket lottery
effected a “release” of tickets for sale to the “general public” for purposes of
section 35.1. The lottery winners were members of “the general public” as
that term is used in the statute. The fact that the winners were selected from a
broader pool of entrants does not undermine that conclusion; nothing in
section 35.1 or its legislative history suggests that in order for a release of
tickets to constitute a “release for sale to the general public,” tickets must be
made available to any member of the public who wants to purchase them. The
tickets provided to those winners were indeed “release[d] for sale” to the
winning entrants; the NFL did not donate tickets to the lottery winners, but
sold two tickets at face value to each winner. Thus, when the NFL made one
percent of the 2014 Super Bowl tickets available for sale to the lottery winners
it “released” those tickets for sale.
We thus conclude that tickets sold to the winners of the 2014 Super
Bowl lottery were “release[d] for sale to the general public” within the
meaning of that provision, and answer the first component of the second
certified question in the affirmative.

17

3.
Our final inquiry is whether the tickets distributed to selected entities --
in this case, the ninety-nine percent of 2014 Super Bowl tickets given to NFL
teams, corporations, broadcast networks, media, sponsors, and the Super Bowl
host committee -- constitute “tickets to an event prior to the tickets’ release for
sale to the general public” that are “[withheld] . . . from sale to the general
public” within the meaning of section 35.1. The Ticket Resale Law’s
definitional provision does not address the meaning of the language at issue in
this inquiry. N.J.S.A. 56:8-26.
According to plaintiff, the Legislature enacted section 35.1 to ensure that
ninety-five percent of all seats for an event would be available to the general
public for purchase. A statute that imposed that requirement would certainly
ensure public access to the vast majority of seats to a given event. It would
restrict or eliminate the sale of coveted sports playoff tickets to season ticket
holders and the reservation of prime theater seats to subscribers. It would
curtail a college’s ability to assign specific sections of a stadium for students
or alumni and limit a sponsor’s authority to allocate tickets for entertainers’
fan clubs or commercial partners. Had the Legislature intended to impose such
a restriction, it could have done so in unmistakable terms.
18

Section 35.1’s plain language suggests the Legislature sought to impose
a more modest constraint on the sale of tickets to sports and entertainment
events. In the first of the statute’s three references to “tickets,” that term is
part of the phrase “a person[] who has access to tickets to an event prior to the
tickets’ release for sale to the general public.” N.J.S.A. 56:8-35.1. With that
statutory language, the Legislature defined the subset of the tickets for a given
event that are limited by the statute: tickets designated for release to the
general public that would be included in such a release were they not withheld.
Ibid. That language reflects a primary goal of the statute: to deter sponsors,
ticket brokers, and others from diverting tickets from an initial public sale to
the secondary market, thus driving up ticket prices.
Next, section 35.1 prohibits the withholding of “those tickets” -- a plain
reference to the preceding description of tickets accessed “prior to the tickets’
release for sale to the general public” -- in an amount exceeding five percent of
all available seating for the event. Ibid. The statute does not impose a limit on
withholding any tickets, but restricts only the withholding of the subset of
tickets that would otherwise be made available in a public sale.
In short, by the statute’s express terms, the Legislature imposed
restrictions only on the withholding of tickets that would -- if not diverted --
be destined to be available for sale to the general public. There is no evidence
19

in section 35.1’s language -- or its history over the seventeen years for which it
was effective and during which New Jersey hosted countless sports and
entertainment events -- that the Legislature intended it to be the draconian
measure that plaintiff describes.
We do not suggest that section 35.1 is entirely irrelevant to the 2014
Super Bowl, in which the NFL conducted its only “sale to the general public”
through its lottery. The provision plainly would be implicated if the NFL, or
another individual or entity within the statutory definition of “person,” were to
withhold more than five percent of the tickets designated for lottery winners,
thus reducing the number of tickets available to those winners to a number
below the intended one percent. N.J.S.A. 56:8-35.1.
No such unlawful withholding of tickets reserved for lottery winners,
however, is alleged in this case. Instead, plaintiff’s claim is premised on the
purchase of two tickets that the NFL distributed to an unidentified entity, and
which were resold at a premium on the secondary market. Thus, the tickets at
the heart of plaintiff’s action were part of the ninety-nine percent of tickets
reserved long before the 2014 Super Bowl for specific entities with ties to the
NFL. Those tickets were never destined to be part of a public sale.
Consequently, no “person” had “access” to those tickets “prior to the tickets’
release for sale to the general public,” and no “person” could “withhold those
20

tickets from sale to the general public” in advance of such a sale. N.J.S.A.
56:8-35.1.
Accordingly, we conclude that tickets distributed to selected entities
were not “[withheld] . . . from sale to the general public” within the meaning
of section 35.1, and answer the second component of the second certified
question in the negative.

Outcome: In responding to the certified questions, we strive to advance the
consumer protection objectives expressed by the Legislature when it enacted
section 35.1, consistent with the limits imposed by the statutory text. If our
interpretation of section 35.1 does not reflect the Legislature’s intended goal in
the regulation of ticket distribution for New Jersey events, the Legislature may
elect to replace the repealed statute with a provision that clarifies the State’s
public policy with respect to that issue.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2019 MoreLaw, Inc. - All rights reserved.