Josh Finkelman v. National Football League , 810 F.3d 187 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 15-1435
_______________
JOSH FINKELMAN; BEN HOCH-PARKER
On Behalf of Themselves and the Putative Class,
Appellants
v.
NATIONAL FOOTBALL LEAGUE;
NFL VENTURES, L.P.;
NFL PROPERTIES, LLC; NFL VENTURES, INC.;
NFL ENTERPRISES LLC
_______________
On Appeal from the District Court
for the District of New Jersey
(Civil No. 3-14-cv-00096)
District Judge: Honorable Peter G. Sheridan
_______________
Argued October 8, 2015
Before: FUENTES, SMITH, and BARRY, Circuit Judges
(Opinion Filed: January 14, 2016)
Bruce H. Nagel, Esq. [ARGUED]
Robert H. Solomon, Esq.
Greg M. Kohn, Esq.
Andrew Pepper, Esq.
Nagel Rice, LLP
103 Eisenhower Parkway
Roseland, NJ 07069
Attorneys for Appellants
Jonathan D. Pressment, Esq. [ARGUED]
William Feldman, Esq.
Haynes & Boone, LLP
30 Rockefeller Center, 26th Floor
New York, NY 10112
Karen A. Confoy, Esq.
Steven J. Daroci, Esq.
Fox Rothschild LLP
997 Lenox Drive, Building 3
Lawrenceville, NJ 08648
Attorneys for Appellees
_______________
OPINION OF THE COURT
_______________
2
FUENTES, Circuit Judge:
Many of us have felt the disappointment of wanting to
attend a concert or athletic event only to discover that the
event has sold out. When an artist or sports team is especially
popular, the gap between the supply of tickets and the demand
for those tickets can be enormous. Some people will be able
to attend such an event; others will not.
The Super Bowl is perhaps the ultimate example of an
event where demand for tickets exceeds supply. The two
named plaintiffs in this case, Josh Finkelman and Ben Hoch-
Parker, wanted to attend Super Bowl XLVIII, which was held
in New Jersey in 2014. Finkelman bought two tickets on the
resale market, allegedly for much more than face price.
Hoch-Parker—confronted with the high prices in that
market—opted not to purchase any. Plaintiffs then brought a
class action against the National Football League (“NFL”)
and various affiliated entities in the District of New Jersey,
alleging that the NFL’s ticketing practices for the Super Bowl
violated New Jersey law.1 The District Court dismissed
plaintiffs’ suit for failure to state a claim, and plaintiffs now
appeal.
We need not grapple with the meaning of New Jersey
1
The other defendants include NFL Ventures, L.P., NFL
Properties, LLC, NFL Ventures, Inc., and NFL Enterprises
LLC. Plaintiffs initially sued another defendant, NFL on
Location, but later filed a stipulation voluntarily dismissing
that defendant. (See Appellants’ Br. at 12 n.5.) We will refer
to the defendants collectively as “the NFL.”
3
law in order to resolve this case. Our inquiry is more basic.
Just as the realities of supply and demand mean that not
everyone who wants to attend a popular event will be able to
do so, federal courts, too, are not open to everyone who might
want to litigate in them. Our courts are courts of limited
subject matter jurisdiction, empowered by Article III of the
Constitution to hear only “cases” and “controversies.” Over
time, those words have come to signify certain minimum
requirements that are necessary to establish constitutional
standing. These requirements are unyielding. Plaintiffs who
are able to establish them will be able to sue in federal courts;
others will not.
We conclude that neither Hoch-Parker nor Finkelman
has constitutional standing to bring this case. Were we to
decide otherwise, anyone who purchased a Super Bowl ticket
on the resale market would have standing to sue in federal
court based on nothing more than conjectural assertions of
causation and injury. Article III requires more.
I. Background
Plaintiffs rely on a rarely litigated New Jersey statute,
N.J. Stat. Ann. § 56:8-35.1 (the “Ticket Law”), which appears
in New Jersey’s Consumer Fraud Act. It says:
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.
4
The Consumer Fraud Act permits private plaintiffs to
sue any person who violates the Act and causes them to suffer
ascertainable damages.2 Plaintiffs assert that the NFL’s
method of selling tickets to Super Bowl XLVIII violated the
Ticket Law and resulted in unjust enrichment.
The New Jersey Legislature passed the Ticket Law in
2002 as part of an effort to reform its statutes regulating ticket
resale, more commonly known as “scalping.” New Jersey has
regulated ticket resale since at least 1983.3 In the late 1990s,
there was an effort to reexamine the effectiveness of these
laws, leading to the creation of a gubernatorial Ticket
Brokering Study Commission.4 Its mission was to “compare
the impact of a regulated and deregulated ticket resale market
on the cost and availability of tickets to New Jersey
entertainment events” and to consider various proposed
2
N.J. Stat. Ann. § 56:8–19. As originally drafted, the Act
empowered only the New Jersey Attorney General to sue to
enforce its provisions. The Legislature amended the statute in
1971 to permit private suits, but required private plaintiffs
(unlike the Attorney General) to prove that they suffered an
ascertainable loss caused by a defendant’s misconduct. See
Bosland v. Warnock Dodge, Inc., 964 A.2d 741, 747–48
(N.J. 2009).
3
J.A. Vol. II at 203–04, 208–09 (N.J. Dep’t of L. & Pub.
Safety, Div. of Consumer Affairs, Report to Governor
Christine Todd Whitman on Access to Entertainment in New
Jersey (Apr. 7, 1997)).
4
J.A. Vol. II at 171–200 (Ticket Brokering Study Comm’n,
Ticket Broker Report (Oct. 31, 2001)).
5
reforms.5
The Commission heard two days of testimony from a
dozen witnesses before publishing its final report in October
2001. It found that, “[i]n a typical year, 90% to 95% of
events in New Jersey do not sell out,” but getting tickets to the
“premium events” that do sell out “is not easy.”6 The
Commission focused heavily on “hold-backs” of tickets by
event organizers, concluding that “[h]old-backs
disproportionately affect the general public’s opportunity to
obtain tickets in favor of privileged insiders,” and that the
practice should be “eliminated or limited by statute or
regulation.”7 The Commission therefore recommended new
legislation to “[l]imit the number of tickets which can be held
back from sale to the general public to 5 percent of the
available seating in any venue or performance.”8 The
Legislature took up the Commission’s suggestion, and
Governor Whitman signed the bill enacting the Ticket Law on
January 8, 2002.9
Since the Ticket Law’s passage, very few courts have
grappled with its meaning. Indeed, the parties point to only
one case in which a New Jersey state court has interpreted the
5
Id. at 173.
6
Id. at 175.
7
Id. at 197.
8
Id. at 191.
9
2001 N.J. Laws 394.
6
Law.10
A. Factual Allegations
Super Bowl XLVIII took place at MetLife Stadium in
East Rutherford, New Jersey on February 2, 2014.11 Plaintiffs
allege that the NFL distributed 99% of Super Bowl tickets to
NFL teams and League insiders.12 Of that amount, 75% of
tickets allegedly went to teams, with 5% going to the host
team, 17.5% going to each team playing in the Super Bowl,
and 35% going to the remaining teams in the League. The
remaining 25% of tickets are said to have been distributed to
“companies, broadcast networks, media sponsors, the host
committee and other league insiders.”13 Only about 1% of
Super Bowl tickets were available for purchase by members
of the general public, and the only way for someone to obtain
one of those tickets was to participate in a League-sponsored
lottery.14 In order to acquire a ticket in the lottery, a person
10
Harvey v. GSAC Partners, Inc., No. L-736-03 (N.J. Super.
Ct. Law Div., Monmouth Cnty. Mar. 21, 2003). See
J.A. Vol. II at 155–65 (a copy of the Harvey opinion).
11
First. Am. Compl. (J.A. Vol. II at 76–92) ¶ 17. In
resolving an appeal from the grant of a motion to dismiss, we
accept all factual allegations in the complaint as true and draw
all reasonable inferences in plaintiffs’ favor. Hansler v.
Lehigh Valley Hosp. Network, 798 F.3d 149, 152 n.2
(3d Cir. 2015).
12
First Am. Compl. ¶ 18.
13
Id. ¶¶ 18–19.
14
Id. ¶¶ 1, 18.
7
had to (i) enter by the deadline, (ii) be selected as a winner,
and (iii) choose to actually purchase a ticket.15
Neither Hoch-Parker nor Finkelman entered the NFL’s
ticket lottery. Instead, on December 30, 2013, Finkelman
purchased two tickets to the Super Bowl in the resale market
at a price of $2,000 per ticket (which he alleges was well in
excess of the tickets’ $800 face price).16 Hoch-Parker wanted
to purchase five Super Bowl tickets for himself and his
family, hoping to pay no more than $1,000 per ticket.17 He
decided not to purchase any when, after researching the
availability of tickets between November and December of
2013, the only tickets he could find were for $4,200 (or
more).18
B. Procedural History in the District Court
Finkelman filed a putative class action against the NFL
in January 2014 in the District of New Jersey. One month
later, he filed an amended complaint that added several
15
Appellees’ Br. at 34 n.13.
16
First. Am. Compl. ¶¶ 31–32. The $800 figure appears on
page 11 of appellants’ opening brief. As the NFL points out,
the First Amended Complaint does not actually allege the face
price of tickets to Super Bowl XLVIII. (Appellees’ Br.
at 11 n.2.)
17
First. Am. Compl. ¶¶ 33–34.
18
Id. ¶¶ 34–35. The First Amended Complaint states that
Hoch-Parker searched for tickets in 2012, but this is clearly a
scrivener’s error.
8
defendants and identified Hoch-Parker as a second named
plaintiff.
The District Court granted the NFL’s motion to
dismiss the complaint—with prejudice—on January 20, 2015,
in an oral decision read into the record.19 Four aspects of its
decision merit further discussion here.
First, the District Court concluded that plaintiffs failed
to plead a viable claim under the Ticket Law. It reasoned that
the NFL did not “withhold” any tickets to the Super Bowl
within the meaning of the Law, but rather “distributed or
allocated [all tickets] according to [its] existing system.”20 It
also determined that the Ticket Law’s 5% limitation on
withholding tickets “applies solely to tickets that are intended
for release to the general public.”21 At most, that portion was
the 1% of tickets sold through the NFL’s lottery—and none of
those tickets were withheld.22 Consequently, the District
Court decided that the NFL’s ticketing practices did not run
afoul of the Ticket Law.
Second, the District Court concluded that Finkelman
failed to plead causation under the New Jersey Consumer
Fraud Act. It reasoned that Finkelman’s decision not to enter
19
See J.A. Vol. I at 31–41. The District Court entered an
order granting the NFL’s motion to dismiss on January 21,
2015. Id. at 3.
20
Id. at 38:2–4.
21
Id. at 38:5–7.
22
Id. at 38:23–39:3.
9
the NFL’s ticket lottery precluded him from proving causation
because he could not demonstrate that he suffered any injury
resulting from the NFL’s alleged misconduct.23 The District
Court stated that it would be “unreasonable” for Finkelman to
recover under the Act because he “failed to avail himself of
the very mechanism . . . whereby his harm would have been
avoided”—i.e., entering the lottery and possibly winning a
face-price ticket.24 The District Court viewed the causation
issue as a fatal pleading defect under the state statute,
although it noted that Finkelman’s failure to enter the NFL
ticket lottery raised “clear standing issues” under Article III.25
Moreover, the District Court was skeptical that
Finkelman would be able to show causation even if he had
entered the lottery and lost. It noted that the tickets
Finkelman purchased on the secondary market might well
have been sold to him by a lottery winner who purchased
them at face price. The District Court stated that, if this were
true, it would be “hard to discern any wrongdoing on the part
of the NFL that could have served as a cause of harm of
which Finkelman now complains.”26
Third, the District Court concluded that Hoch-Parker
23
Id. at 39:19–22.
24
Id. at 39:22–25.
25
Id. at 36:9–13.
26
Id. at 40:15–18. On appeal, Finkelman asserts that this
scenario is impossible because the NFL requires lottery
winners to pick up their tickets in person. (Appellants’ Br.
at 17 & n.8.)
10
lacked Article III standing. In its view, having chosen not to
purchase any Super Bowl tickets, Hoch-Parker could not
show that he suffered any harm “beyond pure speculation or
the merely hypothetical.”27
Fourth, the District Court dismissed plaintiffs’ unjust
enrichment claim. It reasoned that, as a quasi-contractual
remedy, unjust enrichment requires a “sufficiently direct
relationship” between the alleged wrongdoer and the
plaintiff.28 Here, by contrast, the relationship between the
plaintiffs and the NFL was “too ambiguous, remote or
attenuated” for plaintiffs’ unjust enrichment claim to be
viable.29
II. Appellate Jurisdiction and Standard of Review
This is a diversity suit brought by plaintiffs under the
Class Action Fairness Act.30 This Court has appellate
jurisdiction over the final judgment of the District Court
27
J.A. Vol. I at 35:21–23.
28
Id. at 41:8–11.
29
Id. at 41:12–16.
30
28 U.S.C. § 1332(d)(2)(A).
11
under 28 U.S.C. § 1291.31 The District Court entered an order
dismissing the case on January 21, 2015, and plaintiffs filed a
notice of appeal on February 13, 2015.32
The Court’s review of a decision dismissing a
complaint is plenary.33
III. Article III Standing
The question we confront is whether plaintiffs have
alleged facts which, if true, would be sufficient to establish
Article III standing.
We begin by noting that our inquiry is more searching
than the one originally contemplated by the parties. In its
principal brief, the NFL asked this Court to affirm the District
Court’s dismissal of Hoch-Parker’s claims on standing
grounds, but, with respect to Finkelman, focused exclusively
31
Of course, notwithstanding the presence of statutory
appellate jurisdiction, our conclusion that the named plaintiffs
lack Article III standing means that we do not have subject
matter jurisdiction to reach the merits of plaintiffs’ claims.
See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
101–02 (1998) (“For a court to pronounce upon the meaning
or the constitutionality of a state or federal law when it has no
jurisdiction to do so is, by very definition, for a court to act
ultra vires.”).
32
J.A. Vol. I at 1–2.
33
Brown v. Card Serv. Ctr., 464 F.3d 450, 452
(3d Cir. 2006).
12
on the viability of plaintiffs’ claim under the Ticket Law. In
litigating the appeal this way, the NFL was following the lead
of the District Court, which concluded that Finkelman failed
to allege causation under the New Jersey Consumer Fraud
Act. In doing so, the District Court noted that Finkelman’s
failure to enter the NFL ticket lottery raised “certain standing
issues,” but decided “the issue [was] more properly
examined” in the context of New Jersey law “as opposed to
standing.”34
We must take a different approach. A federal court’s
obligation to assure itself that it has subject matter jurisdiction
over a claim is antecedent to its power to reach the merits of
that claim.35 To that end, even when appellees do not address
standing, we must determine on our own whether standing
exists.36 Cognizant of our “bedrock obligation to examine
[our] own subject matter jurisdiction,” we therefore asked the
parties to submit supplemental briefs addressing standing.37
A. The Minimum Requirements of Article III
Standing
To establish Article III standing, a plaintiff must
demonstrate “(1) an injury-in-fact, (2) a sufficient causal
34
J.A. Vol. I at 36:2–13.
35
Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549
U.S. 422, 430–31 (2007).
36
Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001).
37
Pub. Interest Research Grp. of N.J., Inc. v. Magnesium
Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997).
13
connection between the injury and the conduct complained of,
and (3) a likelihood that the injury will be redressed by a
favorable decision.”38
To allege the first element, injury-in-fact, a plaintiff
must claim “the invasion of a concrete and particularized
legally protected interest” resulting in harm “that is actual or
imminent, not conjectural or hypothetical.”39 To be
“concrete,” an injury must be “real, or distinct and palpable,
as opposed to merely abstract.”40 To be sufficiently
“particularized,” an injury must “affect the plaintiff in a
personal and individual way.”41 Plaintiffs do not allege an
injury-in-fact when they rely on a “chain of contingencies” or
“mere speculation.”42
38
Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353,
358-59 (3d Cir. 2015) (internal quotation marks omitted and
punctuation modified) (quoting Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2341 (2014)).
39
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d
Cir. 2014) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992)), cert. denied, 135 S. Ct. 1738 (2015).
40
N.J. Physicians, Inc. v. President of the United States, 653
F.3d 234, 238 (3d Cir. 2011) (quoting City of Los Angeles v.
Lyons, 461 U.S. 95, 102 (1983), and Whitmore v. Arkansas,
495 U.S. 149, 155 (1990)).
41
Defenders of Wildlife, 504 U.S. at 560 n.1.
42
Constitution Party of Pa. v. Aichele, 757 F.3d 347, 364
(3d Cir. 2014) (quoting Clapper v. Amnesty Int’l USA, 133
S. Ct. 1138, 1148 (2013)).
14
The second element of Article III standing is causation.
This element requires the alleged injury to be “fairly traceable
to the challenged action of the defendant, and not the result of
the independent action of some third party not before the
court.”43 This requirement is “akin to ‘but for’ causation” in
tort and may be satisfied “even where the conduct in question
might not have been a proximate cause of the harm.”44 An
“indirect causal relationship will suffice,” provided that “there
is a ‘fairly traceable connection between the alleged injury in
fact and the alleged conduct of the defendant.’”45
Finally, the plaintiff must establish redressability. This
requires the plaintiff to show that it is “likely, as opposed to
merely speculative,” that the alleged injury will be redressed
by a favorable decision.46
The burden to establish standing rests with the
plaintiffs.47 The manner in which plaintiffs go about
43
Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131,
137-38 (3d Cir. 2009) (quoting Defenders of Wildlife, 504
U.S. at 560).
44
Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406,
418 (3d Cir. 2013) (citing The Pitt News v. Fisher, 215 F.3d
354, 360–61 (3d Cir. 2000)).
45
Toll Bros., 555 F.3d at 142 (quoting Vt. Agency of Natural
Res. v. United States ex rel. Stevens, 529 U.S. 765, 771
(2000)).
46
Defenders of Wildlife, 504 U.S. at 561 (internal quotation
marks omitted).
47
Berg v. Obama, 586 F.3d 234, 238 (3d Cir. 2009).
15
satisfying that burden depends on the posture of the case. The
Supreme Court has said that “each element [of standing] must
be supported in the same way as any other matter on which
the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of
the litigation.”48 When assessing standing on the basis of the
facts alleged in a complaint, this means we apply the same
standard of review we use when assessing a motion to dismiss
for failure to state a claim.49
We have described this inquiry as a three-step process.
First, we “tak[e] note of the elements a plaintiff must plead to
state a claim”—here, the three elements of Article III
standing.50 Second, we eliminate from consideration any
allegations that, “because they are no more than conclusions,
are not entitled to the assumption of truth.”51 Third, “where
there are well-pleaded factual allegations, [we] assume their
veracity and then determine whether they plausibly” establish
the prerequisites of standing.52 In conducting this analysis,
we are mindful of the Supreme Court’s teaching that all
aspects of a complaint must rest on “well-pleaded factual
48
Defenders of Wildlife, 504 U.S. at 561.
49
In re Schering Plough Corp. Intron/Temodar Consumer
Class Action, 678 F.3d 235, 243 (3d Cir. 2012).
50
Id. (quoting Santiago v. Warminster Twp., 629 F.3d 121,
130 (3d Cir. 2010)).
51
Id.
52
Id.
16
allegations” and not “mere conclusory statements.”53 Thus, to
survive a motion to dismiss for lack of standing, a plaintiff
“must allege facts that affirmatively and plausibly suggest that
it has standing to sue.”54 Speculative or conjectural assertions
are not sufficient.55
53
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009)
(discussing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
54
Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140,
145 (2d Cir. 2011).
55
Schering Plough, 678 F.3d at 248 (rejecting the
sufficiency of an allegation that rested on “pure conjecture”).
Some of our sister circuits have questioned how well the
“plausibility” standard of Iqbal and Twombly maps onto
standing doctrine. See, e.g., Maya v. Centex Corp., 658 F.3d
1060, 1068 (9th Cir. 2011) (“We simply note that Twombly
and Iqbal deal with a fundamentally different issue, and that
the court’s focus should be on the jurisprudence that deals
with constitutional standing.”); Ross v. Bank of Am., N.A.
(USA), 524 F.3d 217, 225 (2d Cir. 2008) (“However,
plausibility is not at issue at this point, as we are considering
only Article III standing.”).
17
Absent standing on the part of the named plaintiffs, we
must dismiss a putative class action for lack of subject matter
jurisdiction.56 As will become apparent, we have no choice
but to do so here.
B. Hoch-Parker Does Not Allege an Article III
Injury
The District Court concluded that Hoch-Parker lacks
Article III standing because he never purchased a ticket to the
Super Bowl, meaning that he suffered no out-of-pocket loss
and, in the District Court’s view, no injury-in-fact. This is
Without wading too deeply into this particular thicket, we
are content to say that, even when reviewing only the bare
allegations of a complaint, Iqbal and Twombly teach that
standing cannot rest on mere “legal conclusions” or “naked
assertions.” David v. Alphin, 704 F.3d 327, 333
(4th Cir. 2013); see also Maya, 658 F.3d at 1068 (a plaintiff
cannot “rely on a bare legal conclusion to assert injury-in-fact,
or engage in an ingenious academic exercise in the
conceivable to explain how defendants’ actions caused his
injury”) (internal quotation marks omitted); Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (“[A]
court need not credit a complaint’s ‘bald assertions’ or ‘legal
conclusions’ when deciding a motion to dismiss.”).
56
Neale, 794 F.3d at 362 (“[T]he ‘cases or controversies’
requirement is satisfied so long as a class representative has
standing.”).
18
plainly correct.57 Injuries-in-fact must be “particularized” in
the sense of “affect[ing] the plaintiff in a personal and
individual way.”58 Because Hoch-Parker never purchased a
ticket on the secondary market, he suffered no more injury
than any of the possibly tens of thousands of people who
thought about purchasing a ticket to the Super Bowl and
chose not to. Nor does Hoch-Parker allege an “actual” injury,
as opposed to one that is “conjectural or hypothetical.”59
Because he chose not to purchase any tickets, the amount of
any damages Hoch-Parker might have suffered due to the
NFL’s alleged misconduct is completely indeterminate.
Perhaps sensing the weakness of his claim to have
suffered an injury-in-fact, Hoch-Parker tries to recast his
injury as the “lost opportunity” he suffered when he was
unable to attend the Super Bowl. He cites our decision in
Howard v. New Jersey Department of Civil Service in support
of that assertion.60 We find this “lost opportunity” argument
completely unpersuasive. Indeed, any analogy between
Howard and the circumstances here is, at best, extremely
strained.
57
Even plaintiffs’ counsel “conceded” at oral argument that
the question of whether Hoch-Parker has standing is a
“troubling,” “troublesome,” and “difficult issue.” Oral Arg.
Recording at 1:42, 5:35, 6:46, available at
http://www2.ca3.uscourts.gov/oralargument/audio/15-
1435Finkelmanv.NationalFootball.mp3.
58
Defenders of Wildlife, 504 U.S. at 560 n.1.
59
Id. at 560 (quotation marks omitted).
60
667 F.2d 1099 (3d Cir 1981).
19
The Howard plaintiffs alleged that the physical agility
test then required of applicants to become police officers in
Newark discriminated on the basis of sex.61 In assessing
whether the plaintiffs had standing, the Court concluded that
the alleged loss of the opportunity to obtain a job with the
police force was sufficient to make out an injury-in-fact.62 Of
course, the Howard plaintiffs had already entered a
competitive application process that they claimed was
derailed by unconstitutional conduct on the part of state
actors. Hoch-Parker, by contrast, merely “researched the
availability of tickets” for the Super Bowl.63 He took no
meaningful action to pursue the “opportunity” to attend the
game at all.
Moreover, Hoch-Parker completely glosses over the
Howard Court’s actual resolution of the standing issue in that
case. Since the Howard plaintiffs “were refused employment
because they failed the initial written examination, not
because they failed the physical agility test,” the Court
concluded that they lacked standing because they could not
show any “causal connection between the claimed injury (loss
of job opportunity) and the challenged conduct (use of the
physical agility test).”64 Hoch-Parker faces the same
causation problem. Demand for Super Bowl tickets was so
great that Hoch-Parker might have been unable to obtain any
tickets at his preferred price even if the NFL had made all
61
Id. at 1100–01.
62
Id. at 1101.
63
First Am. Compl. ¶ 34.
64
667 F.2d at 1101.
20
tickets to the Super Bowl available to members of the general
public. As in Howard, there is thus an insufficient connection
between Hoch-Parker’s claimed injury (the loss of an
opportunity to attend the Super Bowl) and the challenged
conduct (withholding of tickets).
Our conclusion that Hoch-Parker lacks standing is not
a hard call. If the Court were to credit Hoch-Parker’s concept
of injury, everyone who contemplated buying a Super Bowl
ticket but decided against it would have standing to bring a
claim under the Ticket Law. Article III is simply not that
expansive.65
65
Hoch-Parker suggests that the Supreme Court may decide
in Spokeo, Inc. v. Robins that “naked statutory violations” are
sufficient to confer Article III standing and encourages us to
consider the “direct application” of Spokeo to this case.
(Appellants’ Ltr. to Ct. at 6 (Sept. 29, 2015).) The Supreme
Court there granted certiorari to address the question of
“[w]hether Congress may confer Article III standing upon a
plaintiff who suffers no concrete harm, and who therefore
could not otherwise invoke the jurisdiction of a federal court,
by authorizing a private right of action based on a bare
violation of a federal statute.” Supreme Court, No. 13-1339,
Question Presented, http://www.supremecourt.gov/qp/13-
01339qp.pdf (last visited Nov. 16, 2015). We need not wait
for an opinion in Spokeo to decide that Hoch-Parker lacks
standing.
21
Accordingly, we will uphold the District Court’s
dismissal of Hoch-Parker’s Ticket Law claim for lack of
As an initial matter, Spokeo involves the assertion of
standing absent a showing of “concrete harm.” The question
presented does not address the separate requirement that an
Article III injury must be sufficiently “particularized.”
Having chosen not to purchase a Super Bowl ticket, Hoch-
Parker asserts no particularized harm at all.
Second, Spokeo concerns the limits that Article III places on
Congress’s ability to create a statutory cause of action. It
does not address the separate issue of whether a state
legislature can elevate harms to the status of Article III
injuries in the context of diversity jurisdiction. That issue
raises serious federalism concerns absent from the Spokeo
case.
Third, Hoch-Parker’s Spokeo argument is ultimately futile.
Whatever the contours of Article III, the New Jersey
Consumer Fraud Act only permits a private plaintiff to sue
when that plaintiff has suffered an “ascertainable loss of
moneys or property.” N.J. Stat. Ann. § 56:8-19. Although we
do not reach the merits of Hoch-Parker’s claims, we
nonetheless observe that Hoch-Parker nowhere explains how,
even if constitutional standing can rest on a bare statutory
violation, he would have statutory standing absent the kind of
injury that New Jersey law requires.
22
Article III standing.66
C. Finkelman Does Not Allege an Article III
Injury
We also conclude that Finkelman has failed to allege
facts which, if true, would be sufficient to establish Article III
standing.
The complaint purports to bring a class action on
behalf of “all persons who paid for . . . tickets to Super Bowl
XLVIII in excess of the printed ticket price” and alleges that
class members “suffered ascertainable losses consisting of the
purchase price of the ticket in excess of the face value.”67
Whereas Hoch-Parker never purchased any tickets, we will
assume that Finkelman purchased two $2,000 tickets with an
original face price of $800 each.68 The question is whether
this $2,400 difference—or any portion of it—amounts to an
injury-in-fact caused by the NFL’s alleged misconduct.
66
The complaint is somewhat ambiguous as to whether
plaintiffs’ unjust enrichment claim is brought in the name of
Finkelman, Hoch-Parker, or both. Because that claim alleges
that “[p]laintiffs and the putative Class paid an amount for
tickets that exceed [sic] the value of the tickets” (First. Am.
Compl. ¶ 53), and since Hoch-Parker paid nothing for any
tickets, we will construe the unjust enrichment claim as being
brought by Finkelman as the sole class representative.
67
Id. ¶¶ 38, 50.
68
See supra note 16.
23
In exploring this question, we are cognizant of the fact
that “[t]he choice among alternative definitions of the injury
may control the determination of causation.”69 We will
therefore examine the allegations in the complaint from a
number of different angles to see if Finkelman’s purported
injury can be framed in a way that satisfies Article III.
1. Theory One: The NFL’s Alleged
Misconduct Prevented Finkelman
from Purchasing a Face-Price Ticket
One way to understand Finkelman’s claim is that, but
for the NFL’s withholding of more than 5% of Super Bowl
tickets from sale to the general public, he would have been
able to buy such a ticket at face price. In view of the facts
alleged in the complaint, however, Finkelman has not
adequately asserted that his inability to buy a face-price ticket
is fairly traceable to any actions by the NFL.
In order to explain why causation is such a difficult
issue in this case, it is helpful to start with an example.
Imagine that there are ten people in line to attend a concert at
a venue with only ten seats. It turns out, unbeknownst to the
would-be ticket buyers, that the event organizer has violated
the Ticket Law by withholding 50% of tickets for corporate
insiders. The first five people in line are able to buy a ticket
at face price, but just as the sixth person reaches the ticket
counter, the clerk puts a “SOLD OUT” sign in the window
and turns off the lights. The sixth person in line then (i) buys
69
13A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure: Jurisdiction § 3531.5
(3d ed. 2008).
24
a ticket from one of the five insiders in the resale market at a
price higher than face value, and (ii) sues the event organizer
under the Ticket Law. She seeks, as damages, the difference
between the face price of the ticket and the higher price she
actually paid.
In this scenario, our plaintiff should have no trouble
alleging that she suffered an injury-in-fact fairly traceable to
the defendant’s conduct. But for the defendant’s illegal
withholding, our plaintiff—as the sixth person in line—would
have been able to buy a ticket at face price.70
This example reflects the same theory that Finkelman
proffers here. He seeks as damages the difference between
the $800 face price of Super Bowl tickets and the $2,000
price he paid in the resale market.71 But while this theory of
recovery works very well as applied to our hypothetical, it
completely falls apart in relation to Finkelman.
The problem is that Finkelman failed to enter the
70
One might also ask whether the eleventh person in line
would have standing. It seems clear to us that if the defendant
in such a case could show that (i) there were only ten tickets
available, and (ii) the plaintiff was the eleventh person in line,
and then moved for dismissal on causation grounds, the
district court would have no choice but to dismiss the case for
lack of standing.
71
Indeed, presumably Finkelman actually seeks more than
this difference as damages. The Consumer Fraud Act
mandates that successful plaintiffs receive treble damages and
attorneys’ fees and costs. See N.J. Stat. Ann. § 56:8–19.
25
NFL’s ticket lottery. Irrespective of whether the NFL
withheld tickets in violation of the Ticket Law—a question
we do not reach here—Finkelman chose to buy his tickets on
the secondary market. As a result, there was always a zero
percent chance that he could procure a face-price ticket. In
this sense, any harm that Finkelman suffered is properly
attributed not to the NFL, but rather to his own decision not to
enter the ticket lottery.72
72
We note that Finkelman’s inability to obtain a face-price
ticket in the resale market is itself a consequence of the
incredibly high demand for Super Bowl tickets. Since 95% of
entertainment events in New Jersey do not sell out, see supra
note 6, it is almost never clear ahead of time whether buying
tickets to an event with the plan to resell them for a profit will
be a good investment. Ticket brokers therefore “assume the
risk of not being able to sell [their] tickets.” Stephen Happel
& Marianne M. Jennings, The Eight Principles of the
Microeconomic and Regulatory Future of Ticket Scalping,
Ticket Brokers, and Secondary Ticket Markets, 28 J.L. &
Com. 115, 129 (2010).
Thus, for most events, a fan might be able to obtain a ticket
for face price (or less!) from a broker desperate to recoup
some portion of his or her investment in the waning moments
before an event begins. Here, by contrast, plaintiffs assert
that the demand for Super Bowl tickets is so overwhelming
that, once in the secondary market, a fan “must pay
substantially more than the ticket’s face value.” (First Am.
Compl. ¶ 1 (emphasis added).) Plaintiffs therefore agree:
once Finkelman chose not to enter the lottery, it was
impossible for him to pay face price for a ticket.
26
Finkelman tries to rebut this view by arguing that it
would be unfair to require him to have entered the lottery in
order to assert standing. As Finkelman puts it, such a ruling
would “amount to no less than conditioning Plaintiffs’
standing to seek redress for Defendants’ unlawful conduct
upon their participation in the very wrongdoing they seek to
challenge.”73 Though this argument may have some intuitive
appeal, it ultimately misses the mark.
Finkelman is of course correct that the law does not
always require a plaintiff to participate in some allegedly
unlawful practice in order to bring a lawsuit challenging that
practice.74 Even so, the obstacle facing Finkelman is more
fundamental. The causation element of standing requires a
plaintiff to allege facts sufficient to show that his or her injury
is “fairly traceable” to the alleged wrongdoing of the
defendant.75 We have explained that traceability requires, at a
minimum, that the defendant’s purported misconduct was a
“but for” cause of the plaintiff’s injury.76 And, if we treat
Finkelman’s injury-in-fact as his inability to obtain face-price
tickets to the Super Bowl, that injury is simply not traceable
73
Appellants’ Br. at 36.
74
See, e.g., Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477, 489–91 (2010) (describing
circumstances in which district courts have subject matter
jurisdiction to consider a challenge to an administrative
adjudication even when the agency action has not yet
terminated).
75
Toll Bros., 555 F.3d at 142.
76
See Edmonson, 725 F.3d at 418.
27
to the NFL’s withholding of tickets given that Finkelman
sought tickets only in the resale market.77
Any other conclusion is untenable. Were we to adopt
Finkelman’s view of standing, anyone who bought a Super
Bowl ticket from a reseller could sue the NFL to recover
three-times the difference between the purchase price and
face price.78 One might ask: what if the only ticket
Finkelman could find was on sale for $10,000? Or $15,000?
Or $20,000? No matter. On the theory of injury articulated in
plaintiffs’ complaint, everyone who bought a resold ticket
could sue the NFL for any costs above face price, irrespective
of having chosen not to enter the ticket lottery. Because this
theory of standing fails to account for the need to show a
causal connection between plaintiffs’ alleged injury and the
NFL’s conduct, we have no choice but to reject it.
Indeed, Finkelman’s standing difficulties would likely
be insuperable even if the NFL had committed only a de
minimis violation of the Ticket Law by distributing 6% of
tickets to League insiders and selling 94% of tickets to
members of the general public on a first-come, first-served
77
One might argue that, even if Finkelman cannot allege
that the NFL prevented him from obtaining a face-price ticket,
the NFL’s alleged withholding of tickets perhaps diminished
his chances of acquiring a face-price ticket. Here again,
though, Finkelman runs into the problem that he failed to
enter the ticket lottery. His chance of obtaining a face-price
ticket was always zero.
78
See supra note 71 (discussing mandatory damages under
the Consumer Fraud Act).
28
basis. Unless Finkelman could allege facts indicating that, as
in our hypothetical, he was one of the “next people in line,”
demand for Super Bowl tickets so far exceeds supply that
Finkelman’s probability of obtaining a face-price ticket in a
public sale would have been effectively nil regardless of the
NFL’s ticketing practices. Any argument that Finkelman
could have procured a face-price ticket to the Super Bowl—at
least on the facts alleged in the complaint before us—is
ultimately conjectural and speculative. It is, in short,
precisely the kind of allegation that cannot sustain Article III
standing.79
Consequently, Finkelman has failed to allege standing
on the theory that, but for the NFL’s alleged withholding, he
would have been able to purchase a face-price ticket.
2. Theory Two: Finkelman Paid a
Higher Price in the Resale Market Due
to the NFL’s Withholding of Tickets
We will also consider another way of framing the
Article III injury in this case—one emphasized by plaintiffs’
counsel at oral argument. Instead of thinking of Finkelman’s
injury as his inability to acquire a face-price ticket, we might
focus instead on the increased price he allegedly paid for his
tickets on the resale market. In other words, it may be the
case that, but for the NFL’s alleged wrongdoing, the price
Finkelman paid for a resold ticket would have been cheaper.
This argument relies on the basic principle that “[a] reduction
79
See Blunt, 767 F.3d at 278; Aichele, 757 F.3d at 364.
29
in supply will cause prices to rise.”80 One might suppose that
if the NFL were withholding Super Bowl tickets, its behavior
would have had the effect of decreasing the supply of tickets
in the resale market and driving up those tickets’ prices.
To give a concrete example, imagine that, for a given
event, the face price of a ticket is $100 and its price on the
resale market is $200. If we assume that an event organizer’s
illegal withholding drives up the price on the resale market, it
may be that, but for the withholding, the price on the resale
market would have been $180. In this example, a plaintiff’s
injury-in-fact is not $100 (the difference between the face
price and the resale price), but $20 (the difference between
the resale price with and without the defendant’s illegal
withholding).
In conceptualizing Finkelman’s injury this way, we
recognize that the First Amended Complaint did not allege
this theory of harm as clearly as it could have. Indeed,
Finkelman primarily sought as damages “the purchase price
of the ticket in excess of the face value.”81 Nonetheless,
drawing all reasonable inferences in Finkelman’s favor, we
find that he sufficiently raised this price-inflation theory of
injury below. We will therefore consider the argument that
his Article III injury is not the $1,200 premium he paid per
ticket, but rather some unspecified portion of that amount
attributable to the NFL’s alleged withholding.
80
In re Linerboard Antitrust Litig., 305 F.3d 145, 152
(3d Cir. 2002).
81
First Am. Compl. ¶ 50.
30
At first blush, this might seem to be a promising way
for Finkelman to establish standing. But there is a problem.
Demand for tickets to the Super Bowl is so high that those
tickets command, on plaintiffs’ own telling, several times
their face price in the resale market.82 Assuming that
Finkelman is correct that the NFL allocated some 99% of
Super Bowl tickets to League insiders, those insiders had the
same incentive to resell their tickets as the unnamed broker
who sold Finkelman his two tickets: they could make an
enormous profit by doing so. Thus, while it might be the case
that the NFL’s withholding increased ticket prices on the
resale market, it might also be the case that it had no effect on
the resale market.83
Indeed, on the facts alleged here, withholding tickets
from the general public and distributing them to League
insiders might have even increased the supply of tickets on
the resale market, leading to lower prices. The complaint
never specifies whether the NFL insiders who received the
vast majority of Super Bowl tickets had to pay for those
tickets in the first instance. Now, compare two potential
ticket resellers. The first, an individual fan, could resell his or
her ticket and pocket as profit the difference between the
82
See id. ¶ 27 (alleging that tickets for the 2013 Super Bowl
with a face price of $600 sold in the secondary market for
$3,000); id. ¶ 35 (alleging that Hoch-Parker could not find a
ticket to the 2014 Super Bowl for less than $4,200).
83
See Happel & Jennings, The Eight Principles of the
Microeconomic and Regulatory Future of Ticket Scalping, 28
J.L. & Com. at 162 (explaining that held-back tickets “do
make their way into secondary markets”).
31
resale price and the up-front cost of the ticket. The second, a
League insider who received a ticket for free, could make
even more money by pocketing the entire resale price of the
ticket as profit. For this reason, League insiders might have
been especially eager to resell their tickets—meaning that the
NFL’s ticket distribution practices may have actually
increased the number of ticket sellers in the secondary
market. Since an increase in supply leads to lower prices, it is
entirely possible that Finkelman was able to a buy a ticket for
less money than if members of the general public had been
able to purchase 95% of all tickets in the first instance.
To state the problem succinctly: we have no way of
knowing whether the NFL’s withholding of tickets would
have had the effect of increasing or decreasing prices on the
secondary market. We can only speculate—and speculation is
not enough to sustain Article III standing.
This conclusion may seem counterintuitive. After all,
Finkelman is pursuing a simple price inflation theory based on
the relationship between supply and demand in the ticket
resale market, and federal courts typically credit allegations of
injury that involve no more than “application of basic
economic logic.”84 But there is a difference between
allegations that stand on well-pleaded facts and allegations
that stand on nothing more than supposition.
In explaining that difference, it may be helpful to
compare failure to allege an Article III injury with failure to
state a plausible claim under Rule 12(b)(6). The Supreme
84
United Transp. Union v. I.C.C., 891 F.2d 908, 912 n.7
(D.C. Cir. 1989).
32
Court’s decision in Bell Atlantic v. Twombly is the touchstone.
The plaintiffs there, who purported to represent a class of
telephone and high-speed Internet service subscribers, alleged
that the companies that provided these services had conspired
to minimize competition and to inflate service charges.85 So
far, so good: a person who claims to have paid inflated prices
resulting from an antitrust conspiracy clearly alleges an
Article III injury. Where plaintiffs fell short was in alleging
facts that would lead to the plausible inference that the
defendants had entered a conspiracy at all. The complaint
focused only on defendants’ “parallel conduct,” and parallel
conduct, standing alone, is not necessarily “suggestive of
conspiracy.”86 Because plaintiffs’ allegations were not
sufficient to “nudge[] their claims across the line from
conceivable to plausible,” they failed to state a claim under
Rule 12(b)(6).87
It is thus fair to say that, in Twombly, the plaintiffs
looked around and saw conduct consistent with a conspiracy,
but they saw no facts that indicated more plausibly that a
conspiracy actually existed. Finkelman’s situation is
different. Given the NFL’s ticket distribution practices, he
knows precisely how the NFL allegedly violated the law. But
when it comes to injury, he looks only to the difference
between a ticket’s $800 face price and the price he paid and
says, “I have a strong suspicion that this ticket would have
been cheaper if more tickets had been available for purchase
85
550 U.S. at 550.
86
Id. at 568.
87
Id. at 570.
33
by members of the general public.” That claim rests on no
additional facts at all. It is pure conjecture about what the
ticket resale market might have looked like if the NFL had
sold its tickets differently. Article III injuries require a firmer
foundation.
The D.C. Circuit’s decision in Dominguez v. UAL
Corp. provides a helpful point of comparison.88 The plaintiff
there sued United Air Lines under the federal antitrust laws,
asserting that United’s prohibition on reselling airplane tickets
deprived him of a secondary market in which he might have
been able to purchase tickets for less money than he paid
United.89 While the district court granted summary judgment
in favor of the defendant, the D.C. Circuit concluded that the
district court should have dismissed the case for lack of
Article III standing.
The D.C. Circuit reached this conclusion even though
the plaintiff had introduced testimony from an expert who
surveyed United’s customers and concluded that “a high
percentage of respondents would consider using a feature that
allowed them to legally sell or give away airline tickets they
are unable to use.”90 In the plaintiff’s view, this was
sufficient to show that United’s prohibition on a secondary
market for airplane tickets caused him an injury-in-fact. The
D.C. Circuit disagreed. It noted that the plaintiff’s expert had
failed to take into account the costs of changing United’s
88
666 F.3d 1359 (D.C. Cir. 2012).
89
Id. at 1360–61.
90
Id. at 1363.
34
reservation system, the possible introduction of new, seller-
imposed fees, and myriad other factors that might influence
prices in a hypothetical resale market. Thus, the plaintiff
could not show “that any secondary market would have led to
a lower price than what [the plaintiff] paid,” and the absence
of a plausible injury-in-fact required dismissal.91
Dominguez illustrates the intractable standing
problems that may arise when a lawsuit rests on allegations
about a hypothetical resale market. Like the plaintiff in that
case, Finkelman only can speculate as to whether, absent the
NFL’s withholding, the prices he paid in the resale market
would have been cheaper. He has to guess. In the final
analysis, Article III requires more than this kind of
conjecture.92
To be fair, one might point out that Dominguez was
handed down after discovery had concluded, whereas
Finkelman has not had a chance to introduce evidence that
might more fully flesh out his theories of injury and causation.
91
Id.
92
We emphasize that Finkelman’s standing issues arise from
an unusual combination of factors, including reliance on
claims about a hypothetical resale market and the NFL’s
idiosyncratic ticketing practices. In the mine run of cases,
where a complaint alleges that the defendant committed an
unlawful act that caused a traditional injury, the most
plausible inference will be that the plaintiff sustained an
Article III injury. The amount of damages is then a question
of proof. Here, by contrast, the complaint does not permit the
plausible inference that Finkelman suffered any injury at all.
35
Indeed, at oral argument, his counsel suggested that he had an
economist ready to testify that the NFL’s withholding of
tickets increased the price that Finkelman paid in the resale
market.93
We are of course mindful that, “[a]t the pleading stage,
general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss
we presume that general allegations embrace those specific
facts that are necessary to support the claim.”94 But we have
been careful to note that, even at the pleading stage, “we need
not accept as true unsupported conclusions and unwarranted
inferences.”95 Insofar as we construe the complaint to allege
that Finkelman paid more for his tickets than he would have
absent the NFL’s alleged misconduct, that contention is a
“bald assertion” unsupported by well-pleaded facts.96 Nor are
we persuaded by plaintiffs’ counsel’s promises of future
expert testimony when no facts supporting plaintiffs’ theory
93
Oral Arg. Recording at 23:26–24:07.
94
Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249,
256 (1994) (quoting Defenders of Wildlife, 504 U.S. at 561).
95
Maio v. Aetna, Inc., 221 F.3d 472, 500 (3d Cir. 2000)
(internal quotation marks omitted).
96
Morse, 132 F.3d at 906.
36
of injury appear within the four corners of the complaint.97
We conclude that Finkelman’s difficulties in alleging
an injury-in-fact are insurmountable. Because the District
Court lacked subject matter jurisdiction to reach the merits of
plaintiffs’ claims, we will therefore vacate its dismissal of
Finkelman’s Ticket Law and unjust enrichment claims under
Rule 12(b)(6).98
97
In its current posture, this case does not require us to
consider the correct result if plaintiffs’ counsel had included
allegations about his proffered expert in the complaint itself.
We simply note that, in circumstances where the sufficiency
of an allegation regarding an injury-in-fact is contested at the
motion to dismiss stage, district courts have numerous
procedural devices available to them to satisfy themselves of
their Article III jurisdiction. See In re Rockefeller Ctr. Props.,
Inc. Sec. Litig., 184 F.3d 280, 288 (3d Cir. 1999) (explaining
that a district court may convert a motion to dismiss into one
for summary judgment, provided that all parties receive a
“reasonable opportunity” to present relevant evidence);
Doherty v. Rutgers Sch. of Law-Newark, 651 F.2d 893,
898 n.6 (3d Cir. 1981) (district courts, when assessing pre-
discovery challenges to standing, may consider plaintiffs’
affidavits or conduct preliminary evidentiary hearings).
98
While standing arises on a claim-by-claim basis,
Finkelman alleges the same injury for purposes of his Ticket
Law and unjust enrichment claims. We therefore need not
engage in a “claim-by-claim” discussion of standing. Toll
Bros., 555 F.3d at 138 n.5.
37
IV. Conclusion
The threshold requirements of standing are “moored in
the constitutional principle that the judiciary’s power only
extends to cases or controversies.”99 In reaching our
conclusions in this case, we neither interpret the Ticket Law’s
meaning nor pass judgment on future Ticket Law claims. The
New Jersey Attorney General can always sue to enforce the
Law, and the courts of New Jersey remain open to such suits.
But Hoch-Parker and Finkelman chose to sue in federal court,
and their failure to allege the elements of standing means that
we lack jurisdiction to adjudicate their claims.
We will therefore affirm the District Court’s judgment
with respect to Hoch-Parker and vacate the District Court’s
judgment with respect to Finkelman. Because the NFL did
not raise the issue of Finkelman’s Article III standing before
the District Court,100 we will dismiss this appeal without
prejudice for lack of jurisdiction and remand to the District
Court for further proceedings consistent with this Opinion.101
99
Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223,
232 (3d Cir. 2013) (internal quotation marks omitted).
100
See NFL Mem. of Law, Case No. 14-cv-96 (PGS), ECF
No. 19-1 (discussing standing in relation to Hoch-Parker but
not Finkelman); NFL Reply Mem., ECF No. 50 (same).
101
See Pa. Prison Soc’y v. Cortes, 508 F.3d 156, 169 (3d
Cir. 2007) (dismissing an appeal without prejudice for lack of
jurisdiction when, “[b]ecause the issue of standing was raised
for the first time on appeal, none of the plaintiffs have had the
opportunity to present evidence or to litigate this issue.”).
38
On remand, the District Court may exercise its discretion as to
whether plaintiffs should be granted leave to amend their
complaint.102
102
See Newark Branch, N.A.A.C.P. v. Town of Harrison,
907 F.2d 1408, 1418 (3d Cir. 1990) (holding that a district
court may consider a motion to file an amended complaint
when the earlier complaint fails to adequately allege
standing).
39