Finkleman v. National Football League, 236 N.J. 280 (2019). This opinion by Justice Patterson today answers certified questions posed by the Third Circuit Court of Appeals arising out of a putative consumer class action. The questions involve N.J.S.A. 56:8-35.1 of the Ticket Resale Law, which was in force in 2014 but was repealed in 2018, effective as of February 1, 2019. That statute states that “[i]t 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.”
Plaintiff sued the National Football League for allegedly withholding an excessive percentage of tickets to the 2014 Super Bowl, which was held in New Jersey, in violation of section 35.1. As the NFL had done before, it gave 99% of the Super Bowl tickets to to its teams and corporate sponsors, as well as to broadcast networks and other persons and entities. The remaining 1% of the tickets were sold to persons who won the right to buy those tickets in a lottery sponsored by the NFL. As a result, plaintiff claimed, the price of Super Bowl tickets on the secondary market was improperly and artificially high, damaging him and others who either paid too much for tickets or could not afford to buy them. Plaintiff himself paid $2,000 each for two tickets whose face value was $800.
The Third Circuit submitted this proposed certified question: “Does plaintiff Josh Finkelman properly plead a claim under the New Jersey Ticket Law, N.J.S.A. 56:8-35.1?” The Supreme Court reformulated that question, as Rule 2:12A-2 allows it to do, and split it into two questions. They were “(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?” and “(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]?”
Justice Patterson noted that section 35.1 was remedial, and would therefore be “applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud.” She found that plain statutory language answered the questions.
As to the first question, Justice Patterson observed that the Legislature used the defined term “ticket broker” in a number of sections of the Ticket Resale Law, but employed the term “person” in section 35.1 and elsewhere in the statute. The definition of “person” in the Ticket Resale Law includes “corporations, companies, associations, societies, firms, partnerships and joint stock companies as well as individuals.” The conscious choice to use the broader term “person” in section 35.1 rather than the narrower term “ticket broker” called for a “no” answer to the first certified question.
The Court dealt with the second certified question in two parts. The first was whether the tickets sold in the lottery were “release[d] for sale to the general public.” Again looking at plain language, Justice Patterson stated that “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 tickets were not made available to any member of the general public who might have wanted to buy them did not undermine the fact that they were for sale to the public, even if only (ultimately) to those of the public who won the lottery. Thus, the answer to the first part of the second question was “yes.”
Finally, Justice Patterson turned to the second part of the second question. She ruled that “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.” But the 99% of the tickets reserved for the teams and others were never intended to be available for sale to the public, so the statute did not apply.
Plaintiff had contended that the intent of the statute was to ensure that 95% of all tickets to an event would be available for purchase by the public. But Justice Patterson found nothing in the statutory language or legislative history to support that view, and the effect of plaintiff’s argument would be to “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.”