Legal Case Summary

. That's not the plot. I'm not sure where that's a lot of the catchment. I think you pled October and November at one point and then came along later on maybe it was in a brief and argued November and December. We pled the research being that what we pled for both is that the price in the secondary market was driven up as a result of a statutory violation. That's what we pled. Stop right there because I am still, honestly, I am still trying to figure out what the theory of liability is here. Is it the loss of an opportunity to purchase a ticket? Just for Hodgeparker. That's it. And we acknowledge as we said on brief that the closest we can come to this theory is the loss of opportunity for those who fail to get jobs or fail to apply for jobs because of discriminatory practices. We decided the fifth circuit case and we decided the third circuit case. And there were cases in November of plaintiffs that you could have in a case like that with an number of hundreds of thousands. There's no question about that and these are issues that go to the classification level. And I don't disagree with that but in the context of class action practice that's exactly what happens at the claims process after case or so. We're not at the claims. I understand that but we settle cases all the time where claimants have to certify to positions to injury. This is what I bought this what I did without proof so too that can be done in this case. Now I can see. What where is the ascertainable loss for Hodgeparker? I mean, even if you've got even if where is it? I mean, he didn't the ascertained at least think that had an ascertainable loss. That's right. The chairman has an injury in fact. Exactly. And again, I've conceded right up front that it's a lot more troublesome than the Article 3 analysis. It's six page 60 of your brief. And I don't argue with that. I say it straight up front. It's a difficult issue. However, it's not an issue I'm going to concede fully. The ascertainable loss is an esoteric answer. It comes from his loss of the ability to attend the event. The Jersey case is interpreting ascertainable loss does not say it must be a monetary loss. So we would argue that the loss of the opportunity to attend the event that is ascertainable. Now. Is there any pain in the software or something like that? Which we quantify all the time and Jersey trials. So look, I'm clearly I'm clearly suggesting that I am five steps down the chess board in an unshorted area of the law. And quite frankly, if you don't if you don't mind as a pal, I'd like to move to other issues. We do very speaking for myself, I do very much mind. Okay. This court is constitutionally required to look at standing. And the decision is not decided standing as to think of it. That's right. That's correct. Judge Smith, I didn't suggest that we move off of the entire standing issue

. Just the Hodge Parker, which I've conceded is troublesome. So I apologize if you're on it, took that to mean I wasn't standing. And I'll address directly the Fickleman standing issue, which the judge did not address directly, Judge Barry, because he did so in the context of the causal connection, causal connection of the conservative report act, which by the way is all dictated because he'd already, already held in the case that the statute does not apply. Here's a matter of law. So all of the other observations are dictated. But getting back to the question, let me. Maybe we should send it back for him to make a finding on the other Fickleman has article three standing. I don't think so because I'm going to as I'm going to argue now, he clearly has standing. He suffered a direct asset to the law. He suffered the increased cost of the ticket, which was that injury in fact. But you have to show more than injury in fact. Yup. So show, show, show, which is really where I have some questions. Which we do, which we pled and on a 12 B6, it's accepted is true. And you have the Pollard decision where Judge Trekk Chessler addressed this exact issue. And he said in, he said in the Pollard one and two, he said it both times, there is the causation. There is a connection because the marketplace was affected by the restriction of the ticket availability. The prices went up and there is that in this case. There was a possibility that he could obtain a ticket that face value. Wasn't there? And if you, again, this is. If you didn't have the lottery, if you never did. Which is a matter of law we argue is in a relevancy. That's an irrelevant legal cause. It's irrelevant because he, there were, if I remember correctly, 1,000 lottery tickets for tickets made available through the lottery. A little less than a thousand. A little less than that. Yes. But even by the reply. Nor did he have to. And the reason he didn't have to is because the marketplace had already been affected by the breach. Once we established the breach, once we established the Stafford breach. Because the NFL made, did not make 5 percent of the breach. That's exactly what it's all I have to do. My first step is I need to establish the breach. I may not be following you. Are you suggesting that a naked violation of the statute with nothing more is enough to a standard of standing? Of course not. I'm suggesting that in this analysis, the fact that he didn't enter the lottery is irrelevant as a matter of law to an Article III issue. And the reason I say that. Can we say that he knew that at the time he chose not to enter the lottery? Did he know that the total volume of tickets was restricted by the NFL was holding back a certain number? Everybody knew it. It was in all of the press articles. And again, the NFL has done this for approximately 50 years in other jurisdictions. And it's fine in other jurisdictions

. But Jersey is the most protective consumer statute in the country. The consumer for acting in Jersey is broad and protective and has been this way since its past. And every case before the Supreme Court says the same thing. There we have to speculate, though, Mr. Nagle, that had had he applied he would have gotten a ticket because of the NFL having restricted the number of tickets available. The answer is, respectfully as a matter of law, I don't think that that relates to the standing issue, but I'll address it head on. We know that there is an enormous amount of applicants for approximately 900 tickets. The NFL has not disclosed the exact amount, but people know that you have a very, very little chance of ever getting that ticket at face value. So that is, we've argued below, if the enemy... That's really a function of the secondary market, right? No, it's not a function of the secondary. It's a functional lottery. If your wife's, sorry, you're talking solely about the lottery. Yes, if your concern is, as the judge below was concerned, again, indicted, the fact that he didn't enter the lottery is problematic on the causation analysis under the consumer thought out. So let's say the NFL offered 100% of its tickets via the lottery. You'd agree that's not a violation of the statute here, right? I haven't thought of that hypothetical. I would probably say if they offered 100%, it probably, without a lot of analysis, probably not a violation, because the statute requires offering it for sale. And that would get... And if they had done that, if the NFL hypothetically had offered 100%, it wouldn't have mattered here because the plaintiffs began looking for their tickets, not until November or December of 2013, and the lottery closes at the beginning of June 2013. They never would have had a chance anyway. Even if the NFL lottery offered all of its tickets, not just 1%. Judge Smith, the issue here is, did they offer to the public more than 5% after the show goes on? Their position is they offered no tickets for general sale to the public. They offered less than 1%. And they did it through a lottery, which is another mechanism. They offered not for sale to the general public. That's exactly right. They did it. In this 5.1, they're basically saying, well, you know... What they're saying is, and again, they're following these arguments that we think, as a matter of law, are not applicable. They're saying we didn't have to. We have the right to elect not to sell 95%. But that violates the facial clear statute. So we're back into plain meaning of the statute. Well, we're back there. We're into plain meaning, but of course, all the cases we briefed and all the, all the courts, every court that looked at this, including Judge Sheridan went to.

.. There's a couple of, a couple of, just two, three district court cases. That's all. There's one state court and two district court, but everybody, including Judge Sheridan, looked at... That's what one superior court decision was. Yes, one. That's it. Yeah, one superior court decision, again, brought by the Attorney General and the Division of Consular Affairs, which interpreted the act exactly as we did. No state apology. No, there's no apology. And that is why we suggested to this court... A cursory opinion by Judge Sheridan. And he never did decide the Article 3 standing issue as to think of it. That's correct. And that's why we've suggested to this court to certify the question of law back to... Can we certify credibly an issue where we have so little here? I mean, we don't know facts. We don't, because there's been no discovery. We have no, no state court experience to speak of, one superior court opinion. And the opinions that are out there are all on granting motions to dismiss. So there, you know, no one's really going through this whole analysis. And we have a very limited opinion out of the district. Can we credibly certify this? The answer is yes, because in response to Judge Smith's concern, the Article 3 standing issue is tied directly into the causal factor under the Consumer Foredeck. In order for me to succeed under Consumer Foredeck in Jersey, I need to show really the same elements as an Article 3 standing analysis. If you look at them side by side, they're virtually identical. So in effect, what you say to the New Jersey Supreme Court is as follows. Under these circumstances where the NFL has elected not to release 95% of the tickets, which is what the statute requires, is there in your analysis, is there the requisite elements on the pleadings level to sustain a motion to dismiss? Let them tell us because what you've had a judge do is bizarre. You've had a judge basically turn the clock back. The reason why this statute was passed, and you see it over and over again, again, even Judge Sheridan, who looked at the committee report. There's two areas of this. You're going into legislative history now. No, see, this is where you both, both sides, beef up your argument really with, with, of course, with facts as you would think they should be. Although I must say your friends across the aisle don't touch legislative history. Whether they touch it or not, there's not a single opinion that you see in this case. There's three other charges that are viewed at one state to federal, both of which refer to legislative history. And so did Judge Sheridan, two separate occasions? As long as we get to legislative history, don't you, with the meaning of the statute, is clear. No, no, and we briefed that

. And holy Trinity, back in the 1890s, the Supreme Court of the United States said, the meaning of a statute is found in the evil, which it is designed to remedy. And that's exactly why we need to first define what it is, what the evil is. You can't define it without anything coming from the district judge relevant to this issue. You had it in the poverty case. No, no, I'm talking about district, district judge. The district is fought as far as the legislative history. He looked at it. He actually looked at it, and you see it cited in two separate occasions. First of all, at page 20 of his opinion, he actually said, I'm reading the statement from the Senate Commerce Committee, statement to the bill, and it just says in one paragraph if the bill is amended, address practices of ticket brokers. That's the only thing your friends mentioned in terms of legislative history, but a lot more was presented to me. Except the problem with my friends overlooked is that at J.H. Jordan, page 27, Judge Serredin says, but you know what I'm trying to find out is what was the legislature thinking about when they enacted the statute. And I'm not so certain they were thinking about the NFL in this context. So even Judge Serredin is onto it. And look at what Judge Chester did, what was exactly correct in this, and consistent with both the third circuit standard and the New Jersey standard on basically defining the ill. What was it in the marketplace? Is it the case that a person, the NFL makes certain amount of tickets available for the public? Let's say in violation of the statute, they only make 50,000 tickets available for sale to the public. And you can pick up the tickets at the game. Supposing there are several people that line up to get those tickets. And the first, let's say, first four people in line by 49,999 tickets. And the next person buys that last ticket. Mr. Finkleman is behind those five purchasers. No more tickets. Does he have standing? The answer is yes. If the NFL does not, yes, because the staff, we're looking at a simple one-status statute which says it's a violation to withhold more than 5%. 50,000 tickets is, I'm sorry, Judge. We did. Let's say there is a violation of the statute, but you still have to satisfy the enemy. And there's no answer to your loss. Mr. Finkleman, all the tickets were sold out. Even though there's a violation of the statute. In this case, less than 1 percent was released. That violates the statute. Now, let's look at step number two. Let's see if we can get respect. But the district judge found, quote, 35.1 does not, doesn't apply to the NFL. Exactly. Because it does apply, because, as the judge said, and the judge ingrathed into the statute of condition that does not exist. Because the NFL, according to the judge, was permitted to decide themselves what portion of the tickets they would release

. What the judge did. The free is a pre-allocation. It's, this is, been done for a long time. Which is precisely to exclude, I mean, to insulate the NFL from... Not just the NFL, not just the NFL. The reason, and if you look at the brokerage commission, which is in the record, and you look at the Pollard Statement about that commission, the report basically says there has been a, basically, a holdback and a diversion of tickets that venues, or as promoters, sponsors, and other insiders get choice seats for less money. And that's not good. So we're going to, we're going to remedy that by passing the statute. On a little sympathetic point that there was a violation of the statute. That there was a violation. There was clearly a violation. But you've got to get from that to that. I will, I will, I will. So there's a violation statute. So now logically. Are we well today or are we well later on down? No, I will in response. I've briefed it and I will address it now, Judge Fuentes. So there's, as soon as a violation statute, which has been conceded, that's why I move for partial summary judgment below the judge deferred that. There was. This is a very interesting case. The only case because there's others pending below against the concert promoters. See, only case where they conceded the breach. Now let's get to the second piece. What is the, what's the answer to the law again under the consumer product? Once, once they violate the statute that establishes respectfully the article three standing because, according to the pleading and according to Judge Chester in the powered case, that resulted in the increased price of tickets in the marketplace. Judge Chester agreed with us. Pollard wanted to agree with us. That case is now pending. So now, what is the asset to animals? It's easy. When, when thick omen paid 2000 for tickets that had face value around figures 800 to 1000, he suffered a loss. The reason why I had to pay a thousand, a two thousand ticket is because there was a restriction of available tickets to the public because the statute had been violated. But there were available tickets at face value. Less than 900. Through the lottery. Through the lottery. Again, that is in a, respectfully, that's in a relevant legal analysis that you require him to partake in the illegal scheme. There's an ill, there's a breach. The marketplace is restricted as far as access. And then in order for us to sue, you require us to go into a lottery which is a nullity. They won't even release to us the amount of people that apply. We can't get the information

. When did Mr. Finkleman begin looking for a ticket? I can't tell you that on the screen. I don't believe it is now. I can't tell you because there's been no discovery. I would bet that if all 95,000 tickets, I don't know if that number is correct. I think it's about 80 to 90,000 tickets. Has it been made available online at face value? They've gone to it all. It's been under a hard time. I'm about to say it was 80,000 at the moment. It was roughly, yeah. We don't need to know what the available seating is for purposes. What sure we do. You say it's the, you don't know, that's disputed here. You say it is the entire venue, the number of seats in the entire venue. I think your friends say it's the amount of tickets available to the general public for sale. Now according to them, that's not what the statute says. I get so one set in statute, it says you cannot hold more than 5% of available seatings to the event, which means it's in the metal lens. But what's available? You see, available, what is available? To the event. It's simple. To the event. We have a stadium. People went in with tickets, approximately 80,000 people are there, and they concede. Whatever, maybe in this case, for this record is an easy answer. They only let out to the public less than 1%. That's easy. So we know there's about 80,000, we know 80,000 people are there, plus or minus. We know the public only in access to less than 900 tickets. Now that's the breach, that's the breach of the statute. From there, what's the ascertainable loss? We say, Judge, Judge Chester, Paul, it was right. The ascertainable loss, as we've pled, and again, is a 12b6. We've pled this increase the price of tickets in the secondary market, and he paid for it. That's the ascertainable loss. That is traceable to the NFL. That's traceable, yes, to the breach by restricting the tickets, by violating the statute. It's traceable, and I've engaged, even before I filed suit, a Harvard economist to do it jackaly that. He's going to testify, hopefully at some point, issue report, that the reason why the ticket prices went up is because it was a highly restricted access to the public. It went from around, because 80,000 tickets to under 900 tickets. That's a problem. Let's say there are 80,000 tickets that were made available. All 80,000 tickets would be posted, would be available online to the general public. All 80,000. I've no problem with that

. There's no violation. That's fine. There's no violation. But there's no violation. And then the reseller is what we'd be charging $2,000, $3,000. There's no violation of the act. I wouldn't be here. The reason why we're here is because they concede we restricted the sale of 1%. That's what we're here. That's the, they made 70,000 tickets available online. And that's a violation of the statute. Because it's less than, because it's less than, it's more than 5%. All of those tickets would be brought by ticket resellers. Once they violated the act, it's not difficult through export testimony to establish the fact that the reason why the price in the secondary market went up is because of the violation. The price rose because the tickets were restricted, supply and demand raised the price. That's through economics 101 if I remember my first year at college. So the reality is, the reality is, yes, that's the ascertainable loss. And again, in an article three standing concept, those issues are once again virtually co-extensive identical with the elements I must prove under the New Jersey Consumer Product. So if there's any concern you have, I suggest as we argued, certify it. Certify it because again, every opinion out of the New Jersey Supreme Court on this issue is it's an act that's got to be liberally construed and it is the most protective consumer act in the country. And again, I suggest that it is the judge's very, it's critical, it's critical to identify the evil. Why turn the clock back on a statute that remedied the evil? Yes, the time under, but I'm sorry. I'm sorry, yes. Press. Mr. Press, you don't dispute that you violated the statute. We absolutely dispute that. It is. Absolutely, your honor. If you look at the plain language, and as this court has written, the first canon of statutory interpretation is to look at the plain language of the statute. And if the language is plain and unambiguous, as both parties agree. You live or die on plain meaning, right? Not at all. We can get to the statute to reissue past. If we get to the statute. Correct. If you get to the statute, we do not live and die on plain meaning. The plain meaning supports our position and only our position. But your honor, if you get to the legislative history, that also supports our position. Because what they talk about. I don't know if you mention it in your brief. You mention only the title of the committee report or something. But you avoid the legislative history like the plague

. And those portions out of that I've read in the appendix, I can see why. I mean, I have to hide the emphasis you wanted the demonstrative evidence. That's what the meaning of this one sentence statute. And you gave slides to the district court on the plain meaning of this one sentence. You really want to win on plain meaning. You don't want to see this go back. And you don't want to see this certified. This is a very, you say, simple issue for us to decide. Or to seek, you know, not to seek certification. We shouldn't waste the time of the Duke Jersey Supreme Court. An issue as simple as this. The plain meaning of 35. In Judge Barry, I agree. I think it is a simple case. Let's walk through the plain line. Because we're obligated to do that in the first instance. We only turn, or should we turn to legislative intent in the form of legislative history, if the plain meaning doesn't reveal to us the answer that we're looking for. So walk us through the statute. And in doing so, I'm sure we all have some questions. In the first phrase, H.O.B. and Unlawful Practice for a person comma. I have no idea why there's a comma there for a person who has access. But there is. The NFL is a person. The NFL is the defendant here. They're a person, right? For the purposes of the statute. For the purposes of the statute. Correct. They have access to tickets also. Correct? Correct. To an event. The Super Bowl is an event. Correct. Let me ask you now. If the clause that begins prior to. Look at that. Prior to the tickets release, we're sailed to the general public. A comma. Imagine that's deleted. Just take that out

. If you have the statute before you take that. So that it reads, it should be an unlawful practice for a person who has access to tickets to an event. To withhold those tickets from sale of the general public in an amount exceeding 5% of all available seating for the event. If we took that clause out, that wouldn't change anything for purposes of what this statute intends as far as the point of. As far as the point of this theory is concerned. Does it? I think it does change it. In fact, I think that's exactly your honor. What the plaintiff is trying to do is to take out that qualifying language. All right. So what does that language mean? That language qualifies what tickets were talking about. Because it makes clear that the tickets the statute is addressing are tickets that are in the ordinary course to be made available for public sale. This is the intent issue that the district court was talking about. The tickets intended. That's correct. Why doesn't why doesn't your construction of that put all the power then into the hands of the person who has access to the tickets to determine through his or that entities consent. What's going to go to the public and what isn't? That can't be the intent of the statute. Can it? Well, it's certainly your honor allows somebody who creates an event to decide that that event is not going to be open to the general public. It absolutely allows that. You can withhold 97% of the tickets. Your honor, if you want to. Yes. If you don't put any on sale. And that's absolutely allows to person your position. If you don't put any on sale, the general's a sale to the general public then by definition you have it withheld. Absolutely. And that happens all the time. A subscription theater company that decides that it's not going to put all the tickets on sale to the general public. So by creating a lottery, have you hosted yourself on your own, Picard? Not at all your honor because the ticket, this law or no pertains to those that are released to the general public. The lottery tickets are not tickets that are released to the general public and that you get from the free definition of general public. Going back to Judge Smith's point of fight if I get your argument correctly, you can pretty much gain the system. You can just decide. You can withhold 99% of the tickets because you say I'm not going to put them on sale. I'm going to divvy them out, even give them to resellers who will then sell them three times value. I will only have 1% of the tickets and I'm going to release them in a lottery format. You can do that. And of course you, you are, you can do that. You means everybody, every person covered by this statue because we recognize NFL's ticket allocation system is existing. Absolutely. So one of the facts, your question, Judge Point, is and let me tell you why you could not do the system. Because the system is not designed to affect tickets that are never intended from the get-go to be available to the general public. The system is designed and in fact works with respect to those events for which tickets are unquestionably to be made available through a public sale and it prevents somebody from coming in the 11th hour and saying, you know, this looks like a popular concert. I understand they're going to be made available to the general public, but I want to scoop up a percentage of these tickets to profit on the aftermarket. It works for that. Are you giving some thought to the what the legislature had in mind with the legislature crafting this statue? The number of thousands of people show up at an event where they divide tickets. We have online only to find out that they're all gone. And the people that show up at the gate can stay there for hours and hours and hours and finally get to the gate and the sign sold out comes down. Because the event coordinators are determining what they're going to hold back and what they're not going to hold back. Actually, your honor and your your honor's question you seize upon a key point. They're showing up the gates. They're showing up at the box offices. What the material submitted by a balance demonstrate and describe is the diversion of tickets from initial public sales. And in fact, at page 17 of the record, that is what a balance council says. It says time and time again. They repeat the same concept. The initial diversion of tickets away from the initial public sale. It follows that if there is no public sale, the statue does not trigger. Actually, under your theory, you could have with 100.000 of the tickets. Absolutely. In fact, that is our position. Is that one of the superbowl tickets are released by the NFL to the general public. In fact, I agree with that. The only distinction is they think 1% through the lottery is released to the general public. But I decide that no tickets, no tickets are released to the general public. And then the district judge says that at page 39 of the joint appendix, 35.1 doesn't apply to the NFL. Period. I think what Judge Sheridan meant there was it didn't apply to the NFL's distribution, not that it didn't apply to the NFL. That the NFL didn't qualify as a person. It seems to me you're in charge here. I mean, and your blame and some other guy did it, but it was enough. I have a feeling if we validate your position, if an coordinate is what always you as your model, they would never have tickets available for public purchase. That's not correct, Your Honor. Okay. Because what that overlooks is the economic reality. The Super Bowl is not a typical event. It's not like the concerts that have been viewed in the other cases where they have to go to every different market. And certainly if they decided they're not putting tickets on sale to the general public, they're going to lose a lot of money. The Super Bowl, as your Honor says, if you put them on sale to the general public, they sell out like that. What this statute says is what it doesn't do is it doesn't require that anyone holding a ticket event New Jersey, regardless of the nature of that event, make the tickets available to that event to the general public. Can I return to your position that none of your tickets are made available to the general public? Because I'm still not clear on why the participants or applicants in the lottery process are not members of the general public. The reason why Judge Smith is this, when you look at the definition of general public and we offer McMillan's dictionary, they don't offer any response to that. It says members of the public at large, a concept examined by the District of New Jersey in the Cantor case, public at large, people in ordinary society who are not members of a select group. Now McMillan's gives an example of that

. It works for that. Are you giving some thought to the what the legislature had in mind with the legislature crafting this statue? The number of thousands of people show up at an event where they divide tickets. We have online only to find out that they're all gone. And the people that show up at the gate can stay there for hours and hours and hours and finally get to the gate and the sign sold out comes down. Because the event coordinators are determining what they're going to hold back and what they're not going to hold back. Actually, your honor and your your honor's question you seize upon a key point. They're showing up the gates. They're showing up at the box offices. What the material submitted by a balance demonstrate and describe is the diversion of tickets from initial public sales. And in fact, at page 17 of the record, that is what a balance council says. It says time and time again. They repeat the same concept. The initial diversion of tickets away from the initial public sale. It follows that if there is no public sale, the statue does not trigger. Actually, under your theory, you could have with 100.000 of the tickets. Absolutely. In fact, that is our position. Is that one of the superbowl tickets are released by the NFL to the general public. In fact, I agree with that. The only distinction is they think 1% through the lottery is released to the general public. But I decide that no tickets, no tickets are released to the general public. And then the district judge says that at page 39 of the joint appendix, 35.1 doesn't apply to the NFL. Period. I think what Judge Sheridan meant there was it didn't apply to the NFL's distribution, not that it didn't apply to the NFL. That the NFL didn't qualify as a person. It seems to me you're in charge here. I mean, and your blame and some other guy did it, but it was enough. I have a feeling if we validate your position, if an coordinate is what always you as your model, they would never have tickets available for public purchase. That's not correct, Your Honor. Okay. Because what that overlooks is the economic reality. The Super Bowl is not a typical event. It's not like the concerts that have been viewed in the other cases where they have to go to every different market. And certainly if they decided they're not putting tickets on sale to the general public, they're going to lose a lot of money. The Super Bowl, as your Honor says, if you put them on sale to the general public, they sell out like that. What this statute says is what it doesn't do is it doesn't require that anyone holding a ticket event New Jersey, regardless of the nature of that event, make the tickets available to that event to the general public. Can I return to your position that none of your tickets are made available to the general public? Because I'm still not clear on why the participants or applicants in the lottery process are not members of the general public. The reason why Judge Smith is this, when you look at the definition of general public and we offer McMillan's dictionary, they don't offer any response to that. It says members of the public at large, a concept examined by the District of New Jersey in the Cantor case, public at large, people in ordinary society who are not members of a select group. Now McMillan's gives an example of that. Members of the Board of Directors may be members of the public, but all members of the public are not members of the Board of Directors, it's a subset. With respect to the lottery, lottery tickets are not distributed just to the general public. You can't walk off the street and say I'm buying a lottery ticket. You have to go through three steps. You have to enter the lottery between February 1st and June 1st to the year prior to the Super Bowl. I don't see how those steps affect who the pool of applicants or interested applicants are and why that is not open to every Tom Dick and Harry, Jane, Joan, and I give up on other. You're right, Judge Smith. You're absolutely right. The lottery process is open to the general public. Anybody, any Tom Dick or Harry, can enter the lottery. At the number of tickets that you determine. Thousand tickets are released through the lottery. Correct. Thousand tickets are released through the lottery. That's this case, but you can determine the size of the tickets available through the lottery. Correct. Correct. And by the way, that's why available seating is more than to me and then even. It is more than the total number of seats in the venue. It's less than the total number of seats. Correct, Judge Smith. It could be the total or it could be zero. Correct. If you release 100% of the tickets through a public sale and you're saying zero. I'm saying zero, but here's the thing. Who's the consumer being protected here by in this in this statute? Is there who's being protected? The consumers who wish to purchase tickets through initial public sales. And who are able to do so? And there are none here. There are none here because there was no initial public sale. Well, they're the general public according to the legislature, I think. Isn't that who's being protected? It's absolutely the general public. But it is what are they being protected with respect to? They are being protected with respect to their ability to purchase tickets that are available through an initial public sale. Absent with the holding of any of those tickets in an amount of excess, 5% of the amount available through the public sale. In fact, that's what you get. I want to proceed with something that your owner brought up originally, which is reading through the statute. That is what you get when you read the statute. It should be an unauthor practice for a person who has access to tickets to an event, prior to the tickets released for sale to the general public, to an withhold the various tickets, those tickets, tickets that ought to be released for sale to the general public. Still gets respect to the question all three have asked, which is that leaves it within the power of the person with access to the tickets to define what those tickets are, whether they're reserved. What it allows for somebody to determine is the character of the event. It allows for the person who creates the event to decide if it is going to be an event open to the general public, or an event which is not open to the general public. But once that the termination is made that it is an event open to the general public, the statute keeps thin to prevent anybody from withholding tickets to be made available to the general public in an amount of access to 5%. The superbowl is not an event open to the general public. The superbowl is not an event for which tickets are available to the general public

. Members of the Board of Directors may be members of the public, but all members of the public are not members of the Board of Directors, it's a subset. With respect to the lottery, lottery tickets are not distributed just to the general public. You can't walk off the street and say I'm buying a lottery ticket. You have to go through three steps. You have to enter the lottery between February 1st and June 1st to the year prior to the Super Bowl. I don't see how those steps affect who the pool of applicants or interested applicants are and why that is not open to every Tom Dick and Harry, Jane, Joan, and I give up on other. You're right, Judge Smith. You're absolutely right. The lottery process is open to the general public. Anybody, any Tom Dick or Harry, can enter the lottery. At the number of tickets that you determine. Thousand tickets are released through the lottery. Correct. Thousand tickets are released through the lottery. That's this case, but you can determine the size of the tickets available through the lottery. Correct. Correct. And by the way, that's why available seating is more than to me and then even. It is more than the total number of seats in the venue. It's less than the total number of seats. Correct, Judge Smith. It could be the total or it could be zero. Correct. If you release 100% of the tickets through a public sale and you're saying zero. I'm saying zero, but here's the thing. Who's the consumer being protected here by in this in this statute? Is there who's being protected? The consumers who wish to purchase tickets through initial public sales. And who are able to do so? And there are none here. There are none here because there was no initial public sale. Well, they're the general public according to the legislature, I think. Isn't that who's being protected? It's absolutely the general public. But it is what are they being protected with respect to? They are being protected with respect to their ability to purchase tickets that are available through an initial public sale. Absent with the holding of any of those tickets in an amount of excess, 5% of the amount available through the public sale. In fact, that's what you get. I want to proceed with something that your owner brought up originally, which is reading through the statute. That is what you get when you read the statute. It should be an unauthor practice for a person who has access to tickets to an event, prior to the tickets released for sale to the general public, to an withhold the various tickets, those tickets, tickets that ought to be released for sale to the general public. Still gets respect to the question all three have asked, which is that leaves it within the power of the person with access to the tickets to define what those tickets are, whether they're reserved. What it allows for somebody to determine is the character of the event. It allows for the person who creates the event to decide if it is going to be an event open to the general public, or an event which is not open to the general public. But once that the termination is made that it is an event open to the general public, the statute keeps thin to prevent anybody from withholding tickets to be made available to the general public in an amount of access to 5%. The superbowl is not an event open to the general public. The superbowl is not an event for which tickets are available to the general public. I thought you conceded that the lottery portion of it is a general public. I did not. What I said was the lottery tickets are not given to members of the general public. The lottery tickets are given to winners of the lottery. Now what I said was the lottery itself is open to the general public, but you have to submit an entry, win, and then exercise the option to purchase the tickets. Here's the thing with. With argument as a statute has no applicability to you at all. So this function of this event correct to the superbowl. It does not affect the superbowl because superbowl tickets are never subject to initial public. So and here's the thing just superbowl is super that's because you decided that's right for your own. This pre pre allocation scheme with my colleagues indulgence. Could we could we turn to the standing issue at one point with respect to the analysis or absolutely. If this court is to accept the reading of the statute as it puts off it. It would outlaw you could have seasoned tickets for a sporting team at all in New Jersey. And yet in 35.3 two sections below 35.1 there is a procedure by which event venues must allow seasoned ticket holders specifically to sell their tickets back for games they can attend. So if you accept their position and they send it this on page 17 of the appendix they say it would outlaw seasoned tickets. If you accept that position. Oh, you have to leave the season tickets exceeded 5% correct. Correct. If you did that. Why would you legislate a section in the very same statute on the very same page that provides a means by which seasoned ticket holders can sell those tickets back. And would outlaw any events ability to have a function not open to the general. You couldn't have a subscription theater group Pope Francis comes to visit New Jersey. The parish couldn't devote tickets to people out. No, the only parishes for a church member. I have to comment that Pope Francis ignored New Jersey and he came to Pennsylvania. Could we turn to the standing correct. It was he had New Jersey. It was hard. He flew over it. That was enough. I think the point is. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it

. I thought you conceded that the lottery portion of it is a general public. I did not. What I said was the lottery tickets are not given to members of the general public. The lottery tickets are given to winners of the lottery. Now what I said was the lottery itself is open to the general public, but you have to submit an entry, win, and then exercise the option to purchase the tickets. Here's the thing with. With argument as a statute has no applicability to you at all. So this function of this event correct to the superbowl. It does not affect the superbowl because superbowl tickets are never subject to initial public. So and here's the thing just superbowl is super that's because you decided that's right for your own. This pre pre allocation scheme with my colleagues indulgence. Could we could we turn to the standing issue at one point with respect to the analysis or absolutely. If this court is to accept the reading of the statute as it puts off it. It would outlaw you could have seasoned tickets for a sporting team at all in New Jersey. And yet in 35.3 two sections below 35.1 there is a procedure by which event venues must allow seasoned ticket holders specifically to sell their tickets back for games they can attend. So if you accept their position and they send it this on page 17 of the appendix they say it would outlaw seasoned tickets. If you accept that position. Oh, you have to leave the season tickets exceeded 5% correct. Correct. If you did that. Why would you legislate a section in the very same statute on the very same page that provides a means by which seasoned ticket holders can sell those tickets back. And would outlaw any events ability to have a function not open to the general. You couldn't have a subscription theater group Pope Francis comes to visit New Jersey. The parish couldn't devote tickets to people out. No, the only parishes for a church member. I have to comment that Pope Francis ignored New Jersey and he came to Pennsylvania. Could we turn to the standing correct. It was he had New Jersey. It was hard. He flew over it. That was enough. I think the point is. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. Correct. Correct. Correct. Absolutely. Because the T. David's a ticket. So if you read their breath, and you accept their position, We'll hopefully Mr. Negal will address that when he returns on the board. You couldn't have a record. Homecoming football game and tickets too. Let's get to the standing issue. Well, I don't know what to stand, Mr. Brezman. Why you're not just chomping at the bed to get to the standing issue. Let's get to the standing issue. I guess I missed something. No. I think I am your honor. I apologize. Standing. Clearly, neither clean up has standing. Clean-up hot parker has no standing because he has no injury. There's no causation and there's nothing to redress. If I think Judge Smith, you put it right in Judge Wences, you also said the same thing. If hot parker has standing, everybody who ever gave a moment's thought to attending a Super Bowl would have standing. Mr. Nagel has conceded that there is a profound difference between Mr. Hot Parker and Mr

. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. We're used to it. Correct. Correct. Correct. Absolutely. Because the T. David's a ticket. So if you read their breath, and you accept their position, We'll hopefully Mr. Negal will address that when he returns on the board. You couldn't have a record. Homecoming football game and tickets too. Let's get to the standing issue. Well, I don't know what to stand, Mr. Brezman. Why you're not just chomping at the bed to get to the standing issue. Let's get to the standing issue. I guess I missed something. No. I think I am your honor. I apologize. Standing. Clearly, neither clean up has standing. Clean-up hot parker has no standing because he has no injury. There's no causation and there's nothing to redress. If I think Judge Smith, you put it right in Judge Wences, you also said the same thing. If hot parker has standing, everybody who ever gave a moment's thought to attending a Super Bowl would have standing. Mr. Nagel has conceded that there is a profound difference between Mr. Hot Parker and Mr. Finklman. So let's talk about Mr. Finklman. Sure. Mr. Finklman also does not have standing. Mr. Finklman certainly has shown no causation as Judge Wences pointed out. He never even tried to enter the lottery. He is essentially trying to equate a failure to try with a trial that results in the tickets. It's for standing purposes. I'm trying to add article three standing purposes. We could say that he can demonstrate an injury in fact, candy. I mean, we can monetize the difference in the ticket price. Absolutely. So we can get past that particular first hurdle. Certainly, with respect to standing, he's... Let's focus on causation as one of the standing hurtists. What's the respect to causation on Finklman? Finklman admits he never even attempted to enter the NFL lottery. They submit the article, they provided the deadline by which lottery tickets will do, or lottery entries will do. He never even tried. Never even tried. And therefore, because he never tried, he can't say that he wouldn't have gotten tickets at face value. I believe he has, with the plaintiffs, have made reference to several of the employment cases. Have they registered? Two cases. Two cases. Are there... Yeah, there's... Are those two cases at... No, they're not. Why not? No, they're not. Because first is Phillips. In Phillips, the statement could not turn on the loss of employment opportunities. It turned on a question of the ability to represent a class under federal civil procedure 23

. Finklman. So let's talk about Mr. Finklman. Sure. Mr. Finklman also does not have standing. Mr. Finklman certainly has shown no causation as Judge Wences pointed out. He never even tried to enter the lottery. He is essentially trying to equate a failure to try with a trial that results in the tickets. It's for standing purposes. I'm trying to add article three standing purposes. We could say that he can demonstrate an injury in fact, candy. I mean, we can monetize the difference in the ticket price. Absolutely. So we can get past that particular first hurdle. Certainly, with respect to standing, he's... Let's focus on causation as one of the standing hurtists. What's the respect to causation on Finklman? Finklman admits he never even attempted to enter the NFL lottery. They submit the article, they provided the deadline by which lottery tickets will do, or lottery entries will do. He never even tried. Never even tried. And therefore, because he never tried, he can't say that he wouldn't have gotten tickets at face value. I believe he has, with the plaintiffs, have made reference to several of the employment cases. Have they registered? Two cases. Two cases. Are there... Yeah, there's... Are those two cases at... No, they're not. Why not? No, they're not. Because first is Phillips. In Phillips, the statement could not turn on the loss of employment opportunities. It turned on a question of the ability to represent a class under federal civil procedure 23. In the case that even talks about a loss of job opportunity as a potential basis for standing is Howard. Now, in Howard, the court found that there was no standing, but it also talked about whether or not a loss of opportunity could first standing. But... In an instance where somebody had attempted... The women had already flaunt the written... Correct. The women... The women... The women had a physical test and that that was administered in a discriminatory manner. Right, but they didn't have an opportunity. Correct. And... They had already flaunt the written... Absolutely correct, Judge Barry. And so, at the end of the day, the court's analysis in Howard is, yeah, if you attempt to partake as an end-of-the-knight of an opportunity, somebody interjects to deny you a job opportunity, that loss of job opportunity may confer standing, but there's no fundamental way to go see the Super Bowl. So, there's a distinct difference between Howard, in this case in a number of respects. Again, there's nobody... There's not even a claim here that the NFL interceded to prevent Fickleman from entering the lottery. He simply shows not to do it. The NFL's restriction of the amount of tickets available for the public that resulted in Fickleman not being able to get a ticket. No, you're on it. Yeah, I want to talk about what respect to the lottery. I'm on the $2,000 rate positive community. You know, Honor, I think you're going back to the analogy or the exam they used earlier. If the Super Bowl was put on sale to the general public, tickets would sell like that. I think where the points are blinded to is the natural forces of supply and demand

. In the case that even talks about a loss of job opportunity as a potential basis for standing is Howard. Now, in Howard, the court found that there was no standing, but it also talked about whether or not a loss of opportunity could first standing. But... In an instance where somebody had attempted... The women had already flaunt the written... Correct. The women... The women... The women had a physical test and that that was administered in a discriminatory manner. Right, but they didn't have an opportunity. Correct. And... They had already flaunt the written... Absolutely correct, Judge Barry. And so, at the end of the day, the court's analysis in Howard is, yeah, if you attempt to partake as an end-of-the-knight of an opportunity, somebody interjects to deny you a job opportunity, that loss of job opportunity may confer standing, but there's no fundamental way to go see the Super Bowl. So, there's a distinct difference between Howard, in this case in a number of respects. Again, there's nobody... There's not even a claim here that the NFL interceded to prevent Fickleman from entering the lottery. He simply shows not to do it. The NFL's restriction of the amount of tickets available for the public that resulted in Fickleman not being able to get a ticket. No, you're on it. Yeah, I want to talk about what respect to the lottery. I'm on the $2,000 rate positive community. You know, Honor, I think you're going back to the analogy or the exam they used earlier. If the Super Bowl was put on sale to the general public, tickets would sell like that. I think where the points are blinded to is the natural forces of supply and demand. One of the other points we raised with respect to causation on standing and otherwise is that there is absolutely no showing here that even if the NFL released all of its tickets for free, that Fickleman wouldn't have still had to pay $2,000 or more. And in fact, and this perhaps gets to the ascertainable loss and I don't want to get off standing, but in fact, the record shows that at the time Fickleman purchases his ticket for $2,000, Hawk Parker saw the tickets and the cheapest tickets he saw in the market were $4,300. Fickleman got a bargain. Fickleman got his tickets for less than half of what Hawk Parker saw them advertised for. Fickleman don't leave standing. Fickleman would have to show that his loss is traceable to the NFL. Correct. Correct. And he can't do that. He can't do that because of two things. Very clearly, he never entered the lottery so as Judge Sharrick and correctly decided, he can't show that he wouldn't have gotten tickets at face value. And two, And you say no other tickets were available, period because none were put to say it. No other tickets available to the members of the general public. Is he not a member of the general public? Correct. Correct. No other tickets were available. There was the only way for Mr. Fickleman to obtain the ticket to the suitable, apart from the secondary market, was to the end of the NFL lottery, something he chose not to do. And then of course, because there's no causation, you don't even get to redressability. But I think what Judge Sharrick did was he said, well, as Judge Smith identified, there's certainly an allegation of an injury here. That allegation of an injury certainly at least addresses that component of standing analysis. And certainly at the motion to dismiss stage. But he didn't decide Article 3, he explicitly did not decide Article 3 standing. He said it's appropriate to decide this issue under the causation element of the prime of phase case of the CFA. But he explicitly did not decide the standing issue. He said that think of one's conduct raises clear implications of standing. It is another exam and we'll look at that. It is another exam and under the prime of phase case. Correct. Correct. That was the conclusion. He said it under Article 3. Correct. Correct. What he essentially said was I'm not going to decide on the Article 3. There's no prime of phase sheet claim here because they haven't demonstrated violation of the statute for causation. Clauseation for the same reasons we've discussed with respect to standing. And then ascertainable loss he never got to. But they can't show ascertainable loss either. And I think that's something that Judge Pointless indicated during your questioning of Mr. Nagel. That's the ascertainable loss

. One of the other points we raised with respect to causation on standing and otherwise is that there is absolutely no showing here that even if the NFL released all of its tickets for free, that Fickleman wouldn't have still had to pay $2,000 or more. And in fact, and this perhaps gets to the ascertainable loss and I don't want to get off standing, but in fact, the record shows that at the time Fickleman purchases his ticket for $2,000, Hawk Parker saw the tickets and the cheapest tickets he saw in the market were $4,300. Fickleman got a bargain. Fickleman got his tickets for less than half of what Hawk Parker saw them advertised for. Fickleman don't leave standing. Fickleman would have to show that his loss is traceable to the NFL. Correct. Correct. And he can't do that. He can't do that because of two things. Very clearly, he never entered the lottery so as Judge Sharrick and correctly decided, he can't show that he wouldn't have gotten tickets at face value. And two, And you say no other tickets were available, period because none were put to say it. No other tickets available to the members of the general public. Is he not a member of the general public? Correct. Correct. No other tickets were available. There was the only way for Mr. Fickleman to obtain the ticket to the suitable, apart from the secondary market, was to the end of the NFL lottery, something he chose not to do. And then of course, because there's no causation, you don't even get to redressability. But I think what Judge Sharrick did was he said, well, as Judge Smith identified, there's certainly an allegation of an injury here. That allegation of an injury certainly at least addresses that component of standing analysis. And certainly at the motion to dismiss stage. But he didn't decide Article 3, he explicitly did not decide Article 3 standing. He said it's appropriate to decide this issue under the causation element of the prime of phase case of the CFA. But he explicitly did not decide the standing issue. He said that think of one's conduct raises clear implications of standing. It is another exam and we'll look at that. It is another exam and under the prime of phase case. Correct. Correct. That was the conclusion. He said it under Article 3. Correct. Correct. What he essentially said was I'm not going to decide on the Article 3. There's no prime of phase sheet claim here because they haven't demonstrated violation of the statute for causation. Clauseation for the same reasons we've discussed with respect to standing. And then ascertainable loss he never got to. But they can't show ascertainable loss either. And I think that's something that Judge Pointless indicated during your questioning of Mr. Nagel. That's the ascertainable loss. There is no ascertainable loss. I think Mr. Nagel says this is at a 12-B6 stage and he has an expert online operating to show that there is an ascertainable loss. But here's what is pleading shows your honors. Page 90 paragraph 49 of the complaint. What Mr. Nagel says and this is the allegation upon which his claim is based. Violation of the statute is a violation of the New Jersey Consumer Product per say. And the end of the vote is strictly reliable for that violation. That does not appear in the under in the statute. Nowhere. In fact, the statute says just to the contrary. Under section 19 you must show violation of the statute, ascertainable loss, inculcation. And what the New Jersey Supreme Court said in Weinberg and what was found in New Jersey's citizen action was. But the courts are trying to do and what other opponents have tried to do and other claimants have tried to do. Unless you've viscerated the distinction between the attorney general's right of action. The attorney general could take a action regardless of ascertainable loss with no showing of causation. Just on the basis of the statute. They're trying to eviscerate the distinction between what the attorney general can do under the act. And what a private litigant can do. But the private litigant is held to a higher standard. Here, the only way they try to meet that standard is by claiming that this is a strict viability statute. I'm going to move back to Mr. Hable. Mr. President. Thank you. Thank you very much. Mr. Hable. I'd like to just move through this really with a logical chain if I could very briefly. The statute remedied the very thing that the NFL did. The NFL determined what they're going to release. The NFL determined what, in quote, the available seats would be. The dressing touch battery. That's exactly what the statute stopped. And every place you go, you see the same thing. We are stopping the power of the promoters to withhold and determine for the public what you're going to be allowed to buy. That's done in New Jersey. When this statute was passed, it was passed to specifically eliminated its author, my brief. Number two, if that's the case, why turn the clock back and give to the NFL the option to determine what seats are available, which the statute eliminated and determine what amount the public's going to get. We've revert back to the question of law

. There is no ascertainable loss. I think Mr. Nagel says this is at a 12-B6 stage and he has an expert online operating to show that there is an ascertainable loss. But here's what is pleading shows your honors. Page 90 paragraph 49 of the complaint. What Mr. Nagel says and this is the allegation upon which his claim is based. Violation of the statute is a violation of the New Jersey Consumer Product per say. And the end of the vote is strictly reliable for that violation. That does not appear in the under in the statute. Nowhere. In fact, the statute says just to the contrary. Under section 19 you must show violation of the statute, ascertainable loss, inculcation. And what the New Jersey Supreme Court said in Weinberg and what was found in New Jersey's citizen action was. But the courts are trying to do and what other opponents have tried to do and other claimants have tried to do. Unless you've viscerated the distinction between the attorney general's right of action. The attorney general could take a action regardless of ascertainable loss with no showing of causation. Just on the basis of the statute. They're trying to eviscerate the distinction between what the attorney general can do under the act. And what a private litigant can do. But the private litigant is held to a higher standard. Here, the only way they try to meet that standard is by claiming that this is a strict viability statute. I'm going to move back to Mr. Hable. Mr. President. Thank you. Thank you very much. Mr. Hable. I'd like to just move through this really with a logical chain if I could very briefly. The statute remedied the very thing that the NFL did. The NFL determined what they're going to release. The NFL determined what, in quote, the available seats would be. The dressing touch battery. That's exactly what the statute stopped. And every place you go, you see the same thing. We are stopping the power of the promoters to withhold and determine for the public what you're going to be allowed to buy. That's done in New Jersey. When this statute was passed, it was passed to specifically eliminated its author, my brief. Number two, if that's the case, why turn the clock back and give to the NFL the option to determine what seats are available, which the statute eliminated and determine what amount the public's going to get. We've revert back to the question of law. Mr. Hable. Mr. President makes the pretty, pretty good example of provides pretty good example. He says, well, we can put all the tickets, 80,000 tickets out to the public at $100 a piece, or we can offer them for free. You still have to show us. We're not dealing with offering for free. We're not dealing with for free again. The statute only deals with tickets that are sold. One supermoder decides to sell that he's bound by the statute. Again, this statute isn't on its own. It's not laying in a different area of the statute book. It was put in the Consumer Foredeck. Why? We need to protect you. It's there for a reason. Protect against what? Protect against exactly what the NHL NFL did. I have to assume there's a violation of this. Okay. Now go to that. And I want to quote to you, page 5, two things on that issue. Page 13 of the Pollard opinion addressed my argument precisely, and I strangely argue that it should be followed. Judge Chessler in the Pollard opinion said, we did establish, as a tangible law and causal connection, why? Because the withholding of the tickets triggered, according to him, damage, in quote, based upon the economic reality of supply and demand. We addressed this very issue. The causal link to the statutory violation is that the market place is restricted. The public has access to few tickets, and economically the price goes up. So that causal connection has already, by at least one federal judge in this district, has already accepted that argument. You don't hear anything at all from the NFL, they don't, they don't address it at all. And nor is there any suggestion whatsoever in anything that we have, we are obligated to partake in the violation itself in order to have standing. They violated the act by putting 1% in a lottery to the public. No wear, nowhere, can, has anybody said that I have to partake in the statutory violation in order to then say you breached. They breached by not permitting the access to 95% of the tickets. That's the breach, the damage is established through an economic theory. And if your, if this panel affirms this case, it says to every promoter in New Jersey, you do not have to follow the act. It gives back to the promoters exactly what the legislator took away from them when they passed the act. And that is the option and the power to decide who gets what. That has been outlawed and I suggest that you reverse and send it back. Thank you. Thank you, Mr. President. Thank you very much. Very well presented arguments and we'll take the case of your advice. We'll release this