NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1640-24
THOMAS PACIORKOWSKI, individually and on behalf of those similarly situated,
Plaintiff-Appellant, APPROVED FOR PUBLICATION v. February 17, 2026 APPELLATE DIVISION JETSON ELECTRIC BIKES LLC, d/b/a JETSON and JETSON ELECTRIC,
Defendant-Respondent. ___________________________
Submitted November 18, 2025 – Decided February 17, 2026
Before Judges Gilson, Firko, and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0051-24.
Thomas Paciorkowski, self-represented appellant.
Respondent has not filed a brief.
The opinion of the court was delivered by
GILSON, P.J.A.D.
Plaintiff Thomas Paciorkowski purchased three electric bikes
manufactured by defendant Jetson Electric Bikes, LLC (Jetson). He contends Jetson made misrepresentations and engaged in several unconscionable
commercial practices in advertising and marketing its electronic bikes.
Plaintiff is an attorney, and he sued defendant alleging various causes of
action, including violations of the New Jersey Consumer Fraud Act (CF Act),
N.J.S.A. 56:8-1 to -233. The complaint asserted individual claims and sought
to certify a class action.
Plaintiff appeals from an order denying his motion to certify a class and
dismissing his claims for lack of standing. The trial court reasoned plaintiff did
not have standing to bring any of his claims because he had not suffered a
personal injury from using the Jetson electric bikes.
Having reviewed the record and law, we determine plaintiff has alleged
damages and ascertainable losses. Thus, he had standing to bring his individual
claims. Accordingly, we reverse the order to the extent it dismissed plaintiff's
individual claims. Plaintiff cannot, however, represent the proposed class while
he is also serving as the proposed representative plaintiff. Those dual roles
involve inherent conflicts of interest. We, therefore, affirm the portion of the
order that denied certifying a class action. On remand, plaintiff can only pursue
his individual claims.
A-1640-24 2 I.
We discern the facts from the motion record. In doing so, we note the
record before us is limited because defendant never appeared and plaintiff
represents that a default judgment was entered against defendant. 1 Plaintiff then
moved for class certification, relying on the allegations in his complaint to
satisfy his claims of numerosity, commonality, typicality, and adequacy of
representation.
On January 9, 2020, plaintiff purchased a Jetson Bolt electric bike (Bolt)
for $199.97 at a Costco in Bayonne, New Jersey. Three days later, plaintiff
bought a second Bolt at the same Costco for the same price. Eight months later,
on August 21, 2020, plaintiff purchased a third bike, a Jetson Bolt Pro (Bolt Pro)
at the same Costo for $299.99. Plaintiff alleges that he purchased the bikes for
personal use, primarily to be used on vacations. He represents that he did not
use the bikes for over a year and first became aware they were defective when
he went to inflate the bike tires and discovered the tires would not support his
weight or the weight capacity listed on the bikes.
1 The record does not include an order defaulting defendant. Instead, plaintiff filed a certification making that representation, but he did not include the court order. A-1640-24 3 On January 5, 2024, almost four years after purchasing his first bike,
plaintiff filed a complaint against defendant asserting individual claims and
seeking to certify a class action. In his complaint, plaintiff asserted seven causes
of action: two violations of the CF Act; common law fraud; breach of express
warranties; breach of implied warranties of merchantability; violations of the
Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312; and unjust enrichment.
In his prayers for relief, plaintiff seeks individual and class damages, treble
damages, punitive damages, declaratory relief, injunctions, and attorney's fees.
Plaintiff alleges that defendant made misrepresentations and engaged in
unconscionable commercial practices in advertising and marketing its Bolt and
Bolt Pro electric bikes. In that regard, plaintiff asserts four main contentions.
First, he claims the Bolt had a maximum rider-weight limit of 250 pounds and
the Bolt Pro had a maximum rider-weight limit of 265 pounds, but both bikes
were equipped with tires that could not support those weights. Specifically,
plaintiff contends that when he inspected the bike tires, he discovered the Bolt
tires could support a rider weighing only up to 142 pounds and the Bolt Pro tires
could support a rider weighing only up to 201 pounds. Moreover, plaintiff
asserts the bikes were marketed for use by adults only, but the bikes cannot
A-1640-24 4 support the average weight of an adult and, therefore, the bikes are public health
and safety hazards.
Second, plaintiff alleges that Jetson advertised the Bolt and Bolt Pro tires
as being made from rubber. The tires, however, were actually made from nylon,
which he alleges is cheaper and inferior to rubber.
Third, plaintiff contends that defendant advertised the Bolt and Bolt Pro
as being made from rust-proof aluminum, but the bike frames were actually
made from cheaper steel or iron that could rust. In support of that claim, plaintiff
alleges he tested the bike frames with a magnet, and the strong magnetic
attraction demonstrated the frames were composed of steel or iron but not
aluminum, which does not have a magnetic attraction.
Fourth, plaintiff asserts that both the Bolt and Bolt Pro are effectively
illegal to use in New Jersey. He contends that although the Bolt is motorized, it
lacks pedals and, therefore, should be classified as a motorcycle under New
Jersey law and cannot be used on bike paths or bike lanes in New Jersey.
Additionally, plaintiff alleges the labels on the Bolt are inconsistent. The labels
state the Bolt should "never [be] use[d] near motor vehicles" but then state that
the Bolt is "not designed . . . for off-road use." Concerning the Bolt Pro, plaintiff
A-1640-24 5 asserts that it suffers from the same problems. Therefore, plaintiff contends that
both bikes are illegal to use in New Jersey.
Plaintiff represents that the complaint was personally served on defendant
in New York, but the record does not contain the affidavit of service. On April
8, 2024, plaintiff moved for entry of default, and he represents that on May 10,
2024, an order of default was entered against defendant.
On September 18, 2024, plaintiff moved to certify a class, which he
defined as: "All purchasers of Jetson Bolts and Bolt Pros who purchased the
products at Costco stores in New Jersey or who purchased online at Costco and
had the product shipped to a New Jersey address. The class excludes everyone
who returned the product to Costco." In his supporting papers, plaintiff
contended that he obtained information from Costco, and represented there are
230 potential plaintiffs who purchased Bolts and 4,863 potential plaintiffs who
purchased Bolt Pros. Plaintiff has not explained if he has the ability to identify
the members of the proposed class.
In addition to certifying a class, plaintiff moved for other relief against
defendant. In that regard, he sought a default money judgment, permanent
injunctions, declaratory judgments, and the right to pursue attorney's fees and
punitive damages.
A-1640-24 6 Plaintiff represents that he served his motion papers on defendant, but
there is no proof of service apart from his certification. The record does reflect
that defendant did not respond to the motion. On October 25, 2024, the trial
court heard plaintiff's oral argument in support of the motion. Thereafter, on
December 24, 2024, the trial court entered an order denying defendant's motion.
In a brief written statement attached to the order, the trial court determined
plaintiff lacked standing to bring the claims. In that regard, while the court
accepted plaintiff's representation that he had purchased Jetson bikes, the court
reasoned he had "suffered no personal injury from the product," and, therefore,
lacked standing to bring any claim.
Plaintiff now appeals from the December 24, 2024 order. We accept the
appeal as an appeal from a final order. Although the December 24, 2024 order
does not state it is a final order, it effectively dismissed all of plaintiff's claims.
II.
On appeal, plaintiff makes five arguments. He contends (1) he presented
a prima facie case under the CF Act and has standing to pursue his CF Act
claims; (2) he satisfied the requirements for certifying a class and the class
should have been certified; (3) he satisfied the requirements for a default
judgment and a default judgment should have been entered; (4) he satisfied the
A-1640-24 7 requirements for a declaratory judgment and a declaratory judgment should have
been granted; and (5) he satisfied the requirements for an injunction and
defendant should have been enjoined from distributing Jetson Bolt and Bolt Pros
in New Jersey.
Plaintiff's arguments are dependent on his standing to bring his individual
claims and whether he has satisfied the criteria for certifying a class.
Accordingly, we begin our analysis by examining those two issues.
A. Standing.
"Standing 'refers to the plaintiff's ability or entitlement to maintain an
action before the court.'" In re Adoption of Baby T., 160 N.J. 332, 340 (1999)
(quoting N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409
(App. Div. 1997)). New Jersey courts liberally grant litigants standing to sue .
Jen Elec., Inc. v. County of Essex, 197 N.J. 627, 645 (2009). Generally, courts
recognize standing when the party seeking relief demonstrates a sufficient
personal stake to guarantee adversity and presents a controversy capable of
judicial resolution. State v. Lavrik, 472 N.J. Super. 192, 204 (App. Div. 2022)
(citing Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 436-37 (App. Div. 2011)).
"A litigant with a financial interest in the outcome of the litigation will
A-1640-24 8 ordinarily have standing." Courier-Post Newspaper v. County of Camden, 413
N.J. Super. 372, 381 (App. Div. 2010).
"Standing is a threshold requirement for justiciability." Watkins v.
Resorts Int'l. Hotel & Casino, Inc., 124 N.J. 398, 421 (1991). A trial court's
determination of standing is reviewed de novo as a question of law. Petro v.
Platkin, 472 N.J. Super. 536, 558 (App. Div. 2022).
The trial court did not analyze plaintiff's specific alleged causes of action
in making its standing determination. Before us, plaintiff focuses on his
standing under the CF Act. Accordingly, we begin our analysis with the CF Act.
A plaintiff can bring a claim under the CF Act if he or she "suffers any
ascertainable loss of moneys or property, real or personal, as a result of the use
or employment by another person of any method, act, or practice declared
unlawful under [the CF Act]." N.J.S.A. 56:8-19. An ascertainable loss is one
that is "quantifiable or measurable." Robey v. SPARC Grp. LLC, 256 N.J. 541,
548 (2024) (quoting Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234,
248 (2005)). An out-of-pocket loss or a loss in value of the product received
relative to what was promised is sufficient to establish damage under the CF
Act. Thiedemann, 183 N.J. at 248. In other words, "[a] plaintiff can establish
A-1640-24 9 an ascertainable loss by demonstrating either an out-of-pocket loss or a
deprivation of the benefit of one's bargain." Robey, 256 N.J. at 548.
"A consumer suffers an immediate, out-of-pocket loss or expense when
an item purchased is essentially unusable for its intended purpose or causes
buyers to incur additional costs." Id. at 556. Additionally, if a plaintiff loses
money because of defendant's unconscionable commercial practices, that loss
also establishes an ascertainable loss under the CF Act. D'Agostino v.
Maldonado, 216 N.J. 168, 192-93 (2013).
In this matter, plaintiff alleged ascertainable losses under the CF Act.
Plaintiff purchased three Jetson bikes for just under $700. He alleges that those
bikes are defective and unusable and, therefore, he has asserted losses of
approximately $700.
Moreover, plaintiff has also alleged facts establishing a prima facie claim
under the CF Act. In addition to proving ascertainable loss, a plaintiff asserting
a CF Act claim must establish evidence of (1) "unlawful conduct by defendant;"
and (2) "a causal relationship between the unlawful conduct and the
ascertainable loss." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009).
In terms of unlawful conduct by defendant, plaintiff has alleged that
defendant (1) misrepresented the Bolt's and Bolt Pro's weight capacity; (2)
A-1640-24 10 falsely stated that the bike tires were made of rubber when they were made of
nylon; (3) falsely stated that the Bolt and the Bolt Pro were made of aluminum
when they were made from steel or iron; and (4) sold bikes that are illegal to use
in New Jersey. If found to be true, those misrepresentations could constitute
unlawful conduct by defendant within the meaning of the CF Act.
Plaintiff has also sufficiently pled a causal relationship between the
unlawful conduct and his ascertainable loss. Plaintiff alleges that defendant
marketed the Bolt and Bolt Pro to adults and contends the tires on the bikes
cannot support the average weight of an adult. He also alleges the Bolt and Bolt
Pro cannot be operated legally in New Jersey. He has, therefore, shown a causal
link between what he alleges as false advertising, which induced him to purchase
the bikes, and his loss in that he cannot safely use the bikes.
In dismissing all of plaintiff's claims, the trial court determined that
plaintiff lacked standing because he had not suffered a personal injury. Personal
injury is not a requirement for standing under the CF Act. See N.J.S.A. 56:8-
19. Indeed, the New Jersey Supreme Court has clarified that the CF Act only
allows the recovery of economic damage and does not permit the recovery of
non-economic damages. Gennari v. Weichert Co. Realtors, 148 N.J. 582, 613
(1997); see also Cole v. Laughrey Funeral Home, 376 N.J. Super. 135, 144 (App.
A-1640-24 11 Div. 2005) (explaining Gennari made it "clear[,] that non-economic damages are
not recoverable under the CF [Act]").
The same losses that satisfy the ascertainable loss under the CF Act would
also constitute damages and give plaintiff standing to bring his other claims. In
that regard, plaintiffs do not need to plead or demonstrate a personal injury to
pursue claims for fraud, see Gennari, 148 N.J. at 594-600, 610 (holding that
defendants were liable for common-law fraud despite the absence of any
personal injury); breaches of implied or express warranties, see Ford Motor
Credit Co., LLC, v. Mendola, 427 N.J. Super. 226, 240-41 (App. Div. 2012)
(explaining "[p]urely economic damages are addressed by the . . . relevant
sections of the Uniform Commercial Code" that pertain to express and implied
warranties); or unjust enrichment, see Thieme v. Aucoin-Thieme, 227 N.J. 269,
288 (2016) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007))
(explaining that to seek a claim for unjust enrichment, a party need only
demonstrate the defendant "received a benefit and that retention of that benefit
without payment would be unjust").2
2 In the record before us, plaintiff has not demonstrated a violation of the Magnuson-Moss Warranty Act. That federal Act requires consumers to demonstrate that they provided the seller with an opportunity to cure the defect. 15 U.S.C. § 2310(e). A-1640-24 12 Consequently, the trial court erred in concluding that plaintiff did not have
standing to pursue his alleged individual claims. Nevertheless, standing to
pursue individual claims does not mean that plaintiff has satisfied the criteria
for certifying a class.
B. The Criteria for Class Certification.
A class action allows "one or more individuals to act as plaintiff or
plaintiffs in representing the interests of a larger group of persons with similar
claims." Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496, 517 (2010). "A class
action can create an incentive for a large number of individuals who may have
similar valid claims to 'band together' when 'those claims in isolation are "too
small . . . to warrant recourse to litigation."'" Baskin v. P.C. Richard & Son,
LLC, 246 N.J. 157, 172 (2021) (quoting Lee, 203 N.J. at 517).
"Rules 4:32-1 and -2 govern class actions in New Jersey." Id. at 173. Rule
4:32-1 sets forth four general prerequisites for maintaining a class action. Those
prerequisites are:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
A-1640-24 13 [R. 4:32-1(a).]
Those prerequisites are "frequently termed 'numerosity, commonality,
typicality[,] and adequacy of representation.'" Dugan v. TGI Fridays, Inc., 231
N.J. 24, 47 (2017) (quoting Lee, 203 N.J. at 519).
In addition to the prerequisites of subsection (a), a plaintiff seeking to
certify a class must also satisfy one of the three requirements of subsection (b) .
R. 4:32-1(b). Among those requirements, the plaintiff usually must also
establish predominance and superiority. See Lee, 203 N.J. at 526-29. In that
regard, Rule 4:32-1(b)(3) states:
An action may be maintained as a class action if the prerequisites of paragraph (a) are satisfied, and in addition:
....
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The factors pertinent to the findings include:
(a) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
A-1640-24 14 (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) the desirability or undesirability in concentrating the litigation of the claims in the particular forum; and
(d) the difficulties likely to be encountered in the management of a class action.
[R. 4:32-1(b)(3).]
A trial court's decision to grant or deny class certification is reviewed for
abuse of discretion. Dugan, 231 N.J. at 50 (citing In re Cadillac V8-6-4 Class
Action, 93 N.J. 412, 438-39 (1983)). In this matter, the trial court never
addressed whether a class should be certified. Normally, we would remand for
a development of the record on whether the criteria for class certification
existed. We do not do that in this matter, however, because we hold that plaintiff
cannot serve both as the class representative and counsel for the class.
Over forty years ago, the New Jersey Supreme Court adopted a general
rule prohibiting a lawyer from serving in the dual capacities of class
representative and attorney for the class. In re Cadillac, 93 N.J. at 439-40. The
Court identified three concerns. The first was the appearance of impropriety.
Ibid. The second was a "potential" conflict of interest because attorneys' fees
are drawn from the fund that also provided compensation to class members.
A-1640-24 15 Ibid. The third concern was the prohibition against an attorney acting as counsel
in a case where he or she might also be a witness. Id. at 440.
The New Jersey Supreme Court did not adopt a per se rule prohibiting a
lawyer from serving in the dual roles. Instead, it identified one limited
exception, and held that an attorney might serve as both the counsel and class
representative in certain public interest litigations. Ibid.
Plaintiff argues that changes in both the law and court rules suggest the
rule announced in In re Cadillac is no longer valid. First, plaintiff contends that
the Supreme Court abolished the appearance of impropriety rule when it adopted
new ethics standards in 2006. Plaintiff also points out that usually only actual
conflicts of interest bar representation as compared to potential conflicts.
Finally, plaintiff argues that Rule 4:32-2 has been amended to add subsection
(h), which requires both court approval and notice to the class before counsel
fees in a class action can be awarded. R. 4:32-2(h).
We reject plaintiff's arguments for several reasons. First, plaintiff has not
cited, and we are not aware of, any case questioning the validity of the rule
established in In re Cadillac. Indeed, the Court in In re Cadillac cited a rule
adopted by the United States Courts of Appeals for the Third Circuit that
prohibited per se a lawyer from serving in the dual roles. See Kramer v.
A-1640-24 16 Scientific Control Corp., 534 F.2d 1085, 1090 (3d Cir. 1976) (stating "we agree
that a plaintiff class representative [can] not . . . serve as class counsel"). The
Third Circuit continues to adhere to its per se prohibition. See Fechter v. HMW
Indus., 117 F.R.D. 362, 364-65 (E.D. Pa. 1987) (recognizing the continuing
validity of Kramer); City Select Auto Sales, Inc. v. David Randall Assocs., Inc.,
296 F.R.D. 299, 320 n.11 (D.N.J. 2013) (same).
We recognize that there are no recent cases discussing the rule set forth in
In re Cadillac, as well as the Third Circuit's per se prohibition. We interpret that
silence as acceptance of the well-established rule and its continued validity.
Moreover, we are not persuaded that the changes cited by plaintiff support
abandoning the rule established in In re Cadillac. While the changes identified
by plaintiff have been made, they do not resolve all the conflicts identified by
the Court in In re Cadillac. Class actions are unique, and as the Court
recognized, they present unique challenges for adequate representation. We are
convinced the concerns that led the Court to adopt a general rule prohibiting
attorneys from serving in dual roles in class actions still apply. Furthermore,
this action is not the type of public interest action the Court identified as an
exception to the general rule. See In re Cadillac, 93 N.J. at 440.
A-1640-24 17 Consequently, we affirm the portion of the order denying class
certification on the alternative grounds that plaintiff cannot serve in the dual role
as class representative and class counsel.
III.
In summary, we reverse the portion of the December 24, 2024 order that
dismissed plaintiff's individual claims. We remand with direction that the
individual claims be reinstated and plaintiff be permitted to pursue those claims.
The current record is insufficient to establish what relief plaintiff is entitled to
in an individual capacity on his claims for damages, declaratory judgment s,
injunctive relief, fees, and costs. Those issues will have to be developed on a
more complete record. We affirm the portion of the order that denied class
certification.
Reversed in part, affirmed in part, and remanded. We do not retain
jurisdiction.
A-1640-24 18