NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3561-23
TAHISHA ROACH and EMELIA JACKSON, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants,
v.
BM MOTORING, LLC, and FEDERAL AUTO BROKERS, INC., both corporations d/b/a BM MOTOR CARS, BORIS FIDELMAN and MIKHAIL FIDELMAN,
Defendants-Respondents. _______________________________
Argued September 16, 2025 – Decided October 14, 2025
Before Judges Rose, DeAlmeida and Torregrossa- O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1333-14.
Henry P. Wolfe argued the cause for appellants (The Dann Law Firm, PC, attorneys; Henry P. Wolfe, Javier L. Merino and Andrew R. Wolf, on the briefs). Michael V. Gilberti argued the cause for respondents (Jardim, Meisner, Salmon, Sprague & Susser, PC, attorneys; Michael V. Gilberti, on the brief).
PER CURIAM
After years of discovery and pre-trial litigation, plaintiffs Tahisha Roach
and Emelia Jackson (collectively plaintiffs) appeal the June 12, 2024 Law
Division order, decertifying their previously-certified class action against
defendants, BM Motoring, LLC, and Federal Auto Brokers, Inc., both d/b/a BM
Motor Cars (BM), Boris Fidelman, and Mikhail Fidelman (collectively
defendants), enforcing class action waivers as to individual and potential
plaintiffs, and vacating the May 31, 2019 order barring defendants from seeking
enforcement of class action waivers.
We have considered the record in light of applicable legal principles and
conclude the trial court vacated its prior orders, enforced the class action
waivers, and decertified the class without sufficient factual findings and legal
determinations, and apparently misapplied our decision in Cerciello v. Salerno
Duane, Inc., 473 N.J. Super. 249 (App. Div. 2022). Accordingly, we vacate the
orders under review and remand for further proceedings in accordance with this
opinion.
A-3561-23 2 I.
A brief review of the protracted history of this litigation is warranted to
contextualize the issues presented. The early history is set forth in greater detail
in our prior opinion affirming the Law Division's dismissal of plaintiffs'
complaint in favor of arbitration, Roach v. BM Motoring, LLC, No. A-0749-14
(App. Div. Jan. 20, 2016) (slip op. at 2), and the Supreme Court's decision
reversing and restoring plaintiffs' complaint for further proceedings in the Law
Division after finding defendants breached the agreement to arbitrate, Roach v.
BM Motoring, LLC, 228 N.J. 163 (2017).
A. The Agreement and Initial Proceedings
Plaintiffs each separately purchased used cars from defendants, and each
signed identical dispute resolution agreements (DRA). The DRAs included a
mandatory arbitration provision, in bold capital lettering, that stated:
"AGREEMENT TO ARBITRATE ANY CLAIMS. READ THE FOLLOWING
ARBITRATION PROVISION CAREFULLY. IT LIMITS YOUR RIGHTS,
INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION." The DRAs
concluded with a similar notice stating, "THIS ARBITRATION PROVISION
LIMIT[S] YOUR RIGHTS, INCLUDING YOUR RIGHT TO MAINTAIN A
COURT ACTION. PLEASE READ IT CAREFULLY PRIOR TO SIGNING."
A-3561-23 3 Between the bolded notices, the following provision reflected the parties'
agreement to
arbitrate any claim, dispute, or controversy, including all statutory claims and any state or federal claims, that may arise out of or relating to the sale or lease [of the vehicle]. By agreeing to arbitration, the parties understand and agree that they are waiving their rights to maintain other available resolution processes, such as a court action or administration proceeding, to settle their disputes. Consumer Fraud, Used Car Lemon Law, and Truth-In-Lending claims are just examples of the various types of claims subject to arbitration under this agreement.
[(Emphasis added).]
It immediately continued:
The parties also agree to (i) waive any right [to] pursue any claims arising under this agreement including statutory, state or federal claims, as a class action arbitration, or (ii) to have an arbitration under this agreement consolidated with any other arbitration or proceeding. . . . If any part of this arbitration clause, other than waivers of class action rights, is found to be unenforceable for any reason, the remaining provisions shall remain enforceable. If a waiver of class action and consolidation rights is found unenforceable in any action in which class action remedies have been sought, this entire arbitration clause shall be deemed unenforceable.
A-3561-23 4 Alleging defendants engaged in consumer fraud and unfair practices in
violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -204 (CFA), plaintiff
Jackson filed an arbitration demand against defendants with the American
Arbitration Association (AAA). Roach, 228 N.J. at 166. Plaintiff Roach
initially filed a complaint in the Law Division raising similar allegations, which
the court dismissed after defendant moved to compel arbitration pursuant to the
DRA. The AAA dismissed both claims for nonpayment of filing fees by
defendants.
Thereafter, on March 5, 2014, plaintiffs Roach and Jackson, on behalf of
themselves and all others similarly situated, filed a class action complaint
against defendants asserting violations of the CFA, the Automotive Sales
Practices Regulations, N.J.A.C. 13:45A-26A.1 to -26B.4, the Truth-in-
Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14 to
-18 (TCCWNA), the New Jersey Uniform Commercial Code, N.J.S.A. 12A:9-
101 to -8 on behalf of Roach, and the Motor Vehicle Advertising Practices
Regulations, N.J.A.C. 13:45A-26A.1 to A.10, on behalf of Jackson.
Defendants moved to dismiss plaintiffs' complaint in favor of arbitration
and plaintiffs argued in opposition that defendants waived their right to compel
arbitration when they "materially breached the DRA by failing to advance filing
A-3561-23 5 and arbitration fees in response to plaintiffs' AAA arbitration demands." Roach,
228 N.J. at 167. The trial court dismissed plaintiffs' complaint, and this court
affirmed the trial court's decision. See Roach, slip op. at 2. The Supreme Court
ultimately reversed "find[ing] that plaintiffs' choice of the AAA as the arbitral
forum complied with the DRA and hold[ing] that defendants' failure to advance
arbitration fees was a material breach of that agreement." Roach, 228 N.J. at
167. Thus, the Court concluded defendants were barred from compelling
arbitration and plaintiffs' complaint could proceed in the Law Division. Ibid.
B. Proceedings After Remand
On remand, defendants filed an answer, asserting affirmative defenses. In
relevant part, defendants asserted "[p]laintiffs and members of the purported
class or collective action are not similarly situated. The potential claims of the
purported class members reflect variability." They also "reserve[d] the right to
assert such additional separate defenses as discovery may reveal."
1. Plaintiffs' Motion to Certify Class Action
On October 23, 2018, after completion of discovery, plaintiffs moved for
an order certifying a class pursuant to Rule 4:32-1. Defendants' opposition
relied on the class action waiver language in the DRAs and contended that any
potential plaintiffs had varying DRAs with differing terms and were not
A-3561-23 6 similarly situated. Defendants presented a certification of defendant Boris
Fidelman, president and CEO of Federal Auto Brokers, Inc., asserting that "[a]s
part of [their] discovery disclosures, [they] produced a list of customers who had
transactions that arguably fall within the parameters of plaintiffs' putative class,"
and
[e]ach customer (potential class member) signed a DRA that stated:
The parties also agree to (i) waive any right [to] pursue any claims arising under this agreement including statutory, state or federal claims, as a class action arbitration, or (ii) to have an arbitration under this agreement consolidated with any other arbitration or proceeding.
[(Second alteration in original).]
Defendants emphasized that the Supreme Court barred defendants from
compelling arbitration as to only the individual plaintiffs, Roach and Jackson.
Plaintiffs claimed defendants waived any belated invocation of class
action waivers by other potential plaintiffs because they never raised that
defense over four years of litigation. On May 31, 2019, the trial court entered
A-3561-23 7 an order granting plaintiffs' motion for class certification, after analyzing the
Rule 4:32-1(a) factors.1
2. Defendants' Initial Motion to Decertify the Class
Two weeks later, defendants moved to enforce class waivers and dismiss
class members.2 Defendants contended they had not waived the right to invoke
the waivers, as the newly-certified class of potential plaintiffs were not parties
to the case until the trial court's May 31 decision, and the Supreme Court's
decision finding defendants in breach "dealt [exclusively] with the efforts that
Roach and Jackson made to invoke the arbitration provision and facts specific
1 The order defined the class as follows:
All persons who, at any time during the Class Period purchased or leased a motor vehicle from [d]efendants and were charged a fee for registration and title that exceeded the actual official fees charged to timely register and title the vehicle purchased or leased.
The Class Period is the period beginning six years prior to the filing of the Complaint (to exclude consumers whose CFA and TCCWNA claims would be barred by the applicable six-year statute of limitations) and end continuing through the time of final judgment in this matter. 2 While defendants' motion was pending, we denied their motion for leave to appeal from the May 31 order.
A-3561-23 8 to them." Defendants argued that even if the trial court concluded the "new
plaintiffs" were previously parties, "there were not specific allegations or facts
relating to these other parts of the agreement," and therefore, "anything that
happened before[] from a substantive standpoint d[id] not apply to them."
Defendants argued that, as a result, the "new plaintiffs" should be dismissed and
the class waiver provisions in their DRAs should be enforced.
Plaintiffs countered "the class waiver [wa]s actually a class arbitration
waiver, not a class action waiver" applicable to class actions in court, and
defendants were raising identical arguments raised in their previous motion.
Plaintiffs again contended defendants waived any claim as they "never raised
the issue of [the waiver provision] applying to the class."
Following oral arguments on July 26, 2019, the court denied defendants'
motion, finding it was, in essence, a motion for reconsideration of its May 31
decision. The court concluded that "new parties . . . brought in by way of
amended new . . . represented plaintiffs d[id] not create a new basis for an
argument that should have been made earlier." The court further found, contrary
to defendants' argument, that the class action waiver clause in dispute "is a
different clause within th[e] arbitration provision," defendants "essentially
A-3561-23 9 waived" their argument and were seeking reconsideration of the court's prior
decision.
We denied defendants' motion for leave to appeal from that order,
determining, in part, "[d]efendants ha[d] not demonstrated why it [wa]s in the
interests of justice to grant interlocutory review over the discrete
issues . . . being presented by [defendants] in litigation that ha[d] already been
pending for over five years." We noted:
In addition, defendants did not seek Supreme Court review of this court's July 25, 2019 order denying leave to appeal the trial court's certification of the plaintiff class, an order that at this point should be left intact. Lastly, we are unpersuaded that defendants' interpretation of the DRA is correct. The motion judge reasonably determined that "[i]t's now time to move this case forward."
3. Defendants' Second Motion to Decertify the Class Based on Cerciello In late 2021, the trial court denied defendants' motion to stay all
proceedings pending the outcome of the appeal in Cerciello, 473 N.J. Super. at
249, which raised an argument that class action waivers may be enforceable
despite breach of another portion of an arbitration agreement. The court thus
permitted plaintiffs to issue class notice by way of publication.
A-3561-23 10 In August 2022, defendants again filed a "motion to enforce class waivers
and dismiss class members," seeking an order "(1) decertifying the class(es) in
this case; (2) reconsidering and vacating the order granting plaintiffs' motion to
certify the class(es) in this case; (3) reconsidering and vacating the order
denying defendants' motion to enforce the class waivers of each new/potential
class member and dismissing those new/potential class members from the case;
and (4) vacating all related orders."
Citing our decision in Cerciello during oral argument on their motion,
defendants asserted class waiver agreements are enforceable even when a
defendant has otherwise breached an arbitration agreement, thereby
"prevent[ing] this plaintiff from proceeding as a class."
Plaintiffs argued the facts in Cerciello were distinguishable as the class
action waiver language here, on its face, was critically different. Specifically,
the agreement in Cerciello contained an express waiver of class actions "in court
or in arbitration," but here the DRAs' language mentioned only "class action
arbitration," and the ability "to have an arbitration under th[e] [DRA]
consolidated with any other arbitration or proceeding." Plaintiffs contended
these were not identical provisions mandating identical outcomes.
A-3561-23 11 Following argument, the court reserved decision and rendered an oral
decision on June 12, 2024, granting defendants' motion in its entirety. First
finding that our decision in Cerciello addressed "[t]he same arguments[,]" the
court indicated Cerciello also involved a defendant seeking to enforce a class
action waiver in a DRA after that defendant had similarly breached its
arbitration agreement by failing to pay the arbitration filing fee. The court noted
that we affirmed the trial court's finding in Cerciello that "the class waiver
provision [in that agreement] still control[led] regardless of what happen[ed]
with the failure to arbitrate."
Next, the trial court, without referencing the language of the respective
class waiver provisions, or comparing the two, found this matter was "a
duplicate situation of Cerciello." The court then, without further findings,
granted defendants' motion, dismissing the class action and enforcing the class
waiver provision. The court did not address its prior determination that
defendants waived enforcement of the class action waivers by their own delay.
That same day, the court issued a memorializing order: (1) vacating its May 31,
2019 order certifying the classes; (2) vacating its July 26, 2019 order denying
defendants' motion to enforce the class waiver provisions with other potential
class members and enforcing the class waiver provisions; (3) vacating its March
A-3561-23 12 12, 2021 order directing class notice; (4) vacating its January 21, 2022 order
amending the class notice order filed on March 12, 2021; and (5) ordering
plaintiffs "to proceed only on their individual claims against [d]efendants." 3
II.
Plaintiffs appeal, first arguing the trial court erred in its "misassumption"
that the class action waiver provision in Cerciello mirrored the provision in the
parties' DRAs, without factual findings or "a single reference to the DRA" or
the comparable language in each agreement. Reprising their arguments before
the trial court, plaintiffs highlight the language in the Cerciello agreement
which, unlike the DRAs here, expressly stated the parties waived "the right to
maintain a court action or pursue a class action in court or in arbitration."
(Emphasis added).
Plaintiffs further argue that the court failed to conduct any analysis of the
DRA language to determine whether it provided "clear and unambiguous" notice
that plaintiffs were waiving their right to class actions in court. See Atalese v.
3 Plaintiffs moved for summary judgment while defendants' motion to dismiss was pending, and defendants cross-moved for summary judgment. The court heard arguments on all motions on January 20, 2023, and on June 12, 2024, the court granted plaintiffs' motion for summary judgment and denied defendants' cross-motion for summary judgment. Those summary judgment orders are not the subject of this appeal. A-3561-23 13 U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 447 (2014). They assert, had the
court done so, it would have found the agreement lacked the requisite clarity to
constitute a valid waiver of class actions in court. Finally, plaintiffs argue the
Cerciello decision had no bearing on the trial court's earlier finding here that
defendants waived enforcement of the class action provisions, and the court
erred in applying Cerciello to vacate that earlier order.
III.
We review the trial court's decision on a motion to decertify a class action
for abuse of discretion. See Dugan v. TGI Fridays, Inc., 231 N.J. 24, 50 (2017).
By contrast, we examine contracts and their enforceability de novo. See
Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316 (2019).
Indeed, whether a class action waiver provision is enforceable "is a question of
law, and we need not defer to the interpretative analysis of the trial . . . courts
unless we find it persuasive." Ibid.
Regardless of our standard of review, "[m]eaningful appellate review is
inhibited unless the judge sets forth the reasons for [the] opinion. In the absence
of reasons, we are left to conjecture as to what the judge may have had in mind."
Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990); see also Estate of
Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301, (App. Div. 2018) ("[E]ven
A-3561-23 14 when reviewing issues de novo, our function as an appellate court is to review
the decision of the trial court, not to decide the motion tabula rasa."). Indeed,
Rule 1:7-4(a) mandates that "the court shall . . . find the facts and state its
conclusions of law thereon . . . on every motion decided by a written order that
is appealable as of right."
Having reviewed the record here, we are constrained to vacate and remand
because we are unable to ascertain the basis of the court's decision regarding
three material issues. First, we are unable to determine the basis of the court's
naked conclusion that the waiver provision in Cerciello is a "duplicate" of that
at issue here, when a plain review of both readily reveals the verbiage varies.
Without more, it appears the court incorrectly found the language here mirrored
that in Cerciello.
Next, we discern nothing in the court's decision to reflect the court
independently considered the DRA's language as a whole to determine whether
it provided the requisite notice that parties waived class actions in court and in
arbitration. We note the court neither addressed the precise language of the class
action provision nor attempted to view it in the context of related language in
the DRA, which also expressly stated the parties waived their rights to bring any
action in court. We recognize "no prescribed set of words must be included in
A-3561-23 15 an arbitration clause to accomplish a waiver of rights," however, an enforceable
arbitration clause "at least in some general and sufficiently broad way, must
explain that the plaintiff is giving up [his or] her right to bring [his or] her claims
in court or have a jury resolve the dispute." Atalese, 219 N.J. at 447. The trial
court omitted this fundamental analysis when it enforced the class action waiver
provisions. The court further omitted any explanation of whether or why its
decision concerning the individual plaintiffs' DRAs was presumptively applied
to all potential plaintiffs.
We note the Supreme Court did not address the validity of the individual
plaintiffs' DRAs when it rendered its discreet decision barring defendants from
compelling arbitration. Thus, the trial court should have considered whether the
language of the DRAs sufficiently placed consumers on notice that they were
foreclosed from participating in class actions in courts and the arbitration forum.
Finally, plaintiffs correctly assert that the court's decision is silent on its
reasons for vacating its prior order precluding defendants from invoking the
class action waiver provisions for failing to timely raise that defense. We
discern nothing in the Cerciello decision that, alone, compels that determination,
nor can we identify any specific factual or legal findings supporting the court's
reversing its prior order and enforcing all class action waivers.
A-3561-23 16 Accordingly, given the court's apparent erroneous reliance on Cerciello as
a "duplicate" agreement to that at issue here, and its failure to make findings of
fact and conclusions of law supporting its decision, we vacate the June 12, 2024
order and remand for the court to reconsider the motion in accordance with this
opinion. Our decision should not be interpreted as expressing a view on the
merits of the issues raised. We note only that the language of the agreement
here does not duplicate that in Cerciello, and the DRAs must be assessed for
their own content and meaning, along with any issues surrounding the language
or enforceability of the class action waivers in these circumstances. Further, the
court must specifically consider and make findings as to whether or why its prior
order barring defendants from seeking to enforce the class action waivers based
on their own conduct and delay should be vacated.
Vacated and remanded. We do not retain jurisdiction.
A-3561-23 17