NFL Wants Super Bowl Ticket Fraud Class Action Dismissed

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The NFL is challenging a football fan’s revised complaint, arguing that the proposed class action lawsuit should be dismissed because the plaintiff’s expert’s opinions cannot support consumer fraud claims that the league failed to make enough 2014 Super Bowl tickets.

Plaintiff Josh Finkelman submitted the second amended complaint after the Third Circuit rejected the initial complaint alleging the NFL’s action in not printing enough Super Bowl 2014 tickets led to an unfair increase in ticket prices.

The NFL calls the newest complaint “equally ill-fated” and maintains in their motion to dismiss that Finkelman fails to allege facts sufficient enough to demonstrate violations of the New Jersey Consumer Fraud Act.

“The second amended complaint’s inclusion of opinions offered by Finkelman’s purported expert does not cure this,” the NFL states. “The Third Circuit did not find that Finkelman’s amended complaint lacked an opinion necessary to support this theory — it lacked facts. So does the second amended complaint.”

In response to Finkelman’s opposition to dismissal brief, the league contends that Finkelman’s expert cannot rectify the absence of an injury-in-fact and that Finkelman’s refusal to enter the NFL lottery prevents him from establishing causation and ascertainable loss.

According to the NFL, the Third Circuit Court’s panel found that even with an expert economist’s testimony that the NFL’s withholding of tickets increased the price that Finkelman paid in the resale market, the testimony in the amended complaint cannot “cure the absence of facts.”

Essentially, the NFL contends that Finkelman’s claim relates solely to the alleged inflation of prices on the secondary market and not the inability to obtain tickets at face value.

“Moreover, even accepting the conclusions of his purported expert, Finkelman’s alleged ascertainable loss amounts to nothing more than a claim of price inflation on the secondary market,” the NFL said.

Additionally, the league says Finkelman’s failure to enter the NFL lottery is dispositive.

“Absent allegations to demonstrate that Finkelman entered the NFL Lottery and failed to win the right to purchase Super Bowl tickets, Finkelman cannot possibly demonstrate – as he must – that the NFL’s distribution policies were a ‘but for’ cause of his alleged injury,” the NFL dismissal motion states.

Furthermore, the NFL contends that Finkelman’s lawsuit “misses that mark” and lacks standing. Referencing the Third Circuit’s ruling to remand the case to a lower court, the NFL argues that Finkelman’s request for another opportunity to amend his complaint for a third time should be denied because such an amendment would be futile.

Finkelman, along with another fan, Ben Hoch-Parker, brought the proposed class action lawsuit against the NFL, accusing the league of pricing average fans out of the Super Bowl – a violation of the New Jersey Consumer Fraud Act.

Claiming the NFL made only one percent of all tickets available to the public for purchase at face value, most fans were forced to buy their tickets on the secondary markets, where sellers can command thousands of dollars.

“Every year, the National Football League prints tens of thousands of Super Bowl tickets, yet it only allocates a meager 1 percent of these tickets for release to the general public through a lottery system, forcing all other fans into a secondary market for the tickets where they must pay substantially more than the ticket’s face value to attend one of the most popular and iconic sporting events of the year.”

The plaintiffs are seeking compensatory damages from the NFL as permitted under the New Jersey Consumer Fraud Act.

Finkelman is represented by Bruce Nagel and Greg Kohn of Nagel Rice LLP.

The NFL Super Bowl Ticket Class Action Lawsuit is Josh Finkelman v. National Football League, Case No. 3:2014-cv-00096, in U.S. District Court for the District of New Jersey.

UPDATE: On Oct. 12, 2016, a federal judge dismissed the most recent class action filed by a football fan that claimed the NFL violated New Jersey law by not making enough tickets for Super Bowl XLVIII available to the public.

UPDATE 2: On Dec. 15, 2017, in a precedential opinion, a Third Circuit reversed a lower court’s decision to dismiss a class action lawsuit alleging that by failing to print enough tickets for the 2014 Super Bowl, the National Football League falsely inflated prices in violation of New Jersey State law.

UPDATE 3: On Jan. 9, 2019, New Jersey Supreme Court justices handed down a decision in an NFL class action lawsuit that the 2014 Super Bowl ticket public lottery was not a state statutory violation.