Category: Consumer Fraud Class Actions

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Courtney Baird

Duane Morris Takeaway: For more than seven decades, class actions have been one of the most effective procedural tools employed by consumers who, had they attempted to vindicate their rights individually, may have been unsuccessful for a variety of reasons. Consumer fraud class actions typically involve a group of consumers who believe they participated in legitimate business transactions, but, due to alleged deceptive or fraudulent practices by a retailer, merchant, or manufacturer, the defendant defrauded the consumers or violated their statutory rights.

Every state has consumer protection laws, and consumer fraud class actions require courts to analyze these statutes both with respect to plaintiffs’ claims, and also with respect to choice of law analyses when a complaint seeks to impose liability upon multiple states’ consumer protection laws.

To that end, the class action team at Duane Morris is pleased to present a new publication – the 2026 edition of the Consumer Fraud Class Action Review. We hope it will demystify some of the complexities of consumer fraud class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues.  We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with consumer fraud class action litigation.

Click here to bookmark or download a copy of the Duane Morris Consumer Fraud Class Action Review – 2026 eBook.

Stay tuned for more consumer fraud class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

By Gerald L. Maatman, Jr., Gregory S. Slotnick, Gregory D. Herrold, and Elizabeth G. Underwood

Duane Morris Takeaways: On February 17, 2026, in Paciorkowski v. Jetson Electric Bikes LLC, No. A-1640-24, 2026 WL 438086, at *1 (N.J. App. Div. Feb. 17, 2026), the New Jersey Appellate Division reversed a trial court’s dismissal of a plaintiff’s individual consumer fraud claims against an electric bike manufacturer, holding that a plaintiff need not demonstrate personal injury to establish standing under the New Jersey Consumer Fraud Act (“CFA”).  However, the Appellate Division affirmed the denial of class certification, holding that an attorney cannot serve in the dual role of class representative and class counsel due to inherent conflicts of interest, reaffirming a general rule established over forty years ago that remains valid today.  Id. at *6.

This decision underscores that economic losses, such as purchasing defective products, are sufficient to establish standing under the CFA, while also reinforcing the longstanding prohibition against attorneys wearing two hats in class action litigation.

Case Background

Plaintiff Thomas Paciorkowski, an attorney proceeding pro se, purchased three electric Bolt bikes manufactured by defendant Jetson Electric Bikes, LLC (“Jetson”) over the course of eight months in 2020.  Id. at *1.  Plaintiff alleged that he purchased the bikes for personal use, primarily for vacations, and did not use them for over a year after purchase. Id.  He stated he first became aware the bikes were defective over a year after purchase when he went to inflate the bike tires and discovered they would not support his weight or the weight capacity listed on the bikes.  Id.

On January 5, 2024, nearly four years after purchasing his first bike, Plaintiff filed a complaint against Jetson asserting individual claims and seeking to certify a class action.  Id.  The complaint asserted seven causes of action: two violations of the CFA; 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.  Id.

Plaintiff alleged that Jetson made misrepresentations and engaged in unconscionable commercial practices in advertising and marketing its electric bikes.  Id. at *2.  Specifically, plaintiff asserted four main contentions.  Id.  First, plaintiff claimed 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.  Id. Second, plaintiff alleged that Jetson advertised the bike tires as being made from rubber when they were actually made from cheaper nylon.  Id.  Third, plaintiff contended that Jetson advertised the bikes as made from rust-proof aluminum, but the frames were made from cheaper steel or iron that could rust.  Id.  Fourth, plaintiff asserted that both bikes are illegal to use in New Jersey because the Bolt, being motorized but lacking pedals, should be classified as a motorcycle under New Jersey law and cannot be used on bike paths or bike lanes.  Id.

Jetson did not appear in the trial court, and on May 10, 2024, a default was entered against it.  Id. at *1.  On September 18, 2024, plaintiff moved to certify a class, which he defined as “[A]ll 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.”  Id. at *2.  Plaintiff represented that there were 230 potential plaintiffs who purchased Bolts and 4,863 potential plaintiffs who purchased Bolt Pros.  Id.

On December 24, 2024, the trial court entered an order denying plaintiff’s motion to certify a class.  Id. at *3.  In a brief written statement, the trial court determined plaintiff lacked standing to bring any claims because he had “suffered no personal injury from the product.”  Id.

The Appellate Division’s Ruling

On appeal, the Appellate Division reversed the dismissal of plaintiff’s individual claims, holding that the trial court erred in concluding plaintiff lacked standing.  Id. at *6.

The Appellate Division explained that a plaintiff can bring a claim under the CFA if he “suffers any ascertainable loss of moneys or property” as a result of unlawful conduct.  Id. at *3.  According to the Appellate Division, an ascertainable loss is one that is “quantifiable or measurable,” and can be established by demonstrating either an out-of-pocket loss or a deprivation of the benefit of one’s bargain.  Id. (citing Robey v. SPARC Grp. LLC, 256 N.J. 541, 548 (2024)).

The Appellate Division found that plaintiff alleged ascertainable losses under the CFA because he purchased three Jetson bikes for just under $700 and alleged they are defective and unusable.  Id. at *4.  It emphasized that personal injury is not a requirement for standing under the CFA, noting that the New Jersey Supreme Court has clarified the CFA only allows recovery of economic damages and does not permit recovery of non-economic damages.  Id. at *4.

However, while the Appellate Division reversed on standing grounds regarding plaintiff’s individual claims, the court affirmed the denial of class certification on alternative grounds, holding plaintiff cannot serve in the dual role of class representative and class counsel.  Id. at *5.

The Appellate Division relied on the New Jersey Supreme Court’s decision in In Re Cadillac V8-6-4 Class Action, 93 N.J. 412 (1983), which adopted a general rule prohibiting a lawyer from serving in the dual capacities of class representative and attorney for the class.  Id. at *6.  The ruling in In Re Cadillac identified three concerns: (1) the appearance of impropriety; (2) a potential conflict of interest because attorneys’ fees are drawn from the fund that also provides compensation to class members; and (3) the prohibition against an attorney acting as counsel in a case where he or she might also be a witness.  Id.

Moreover, the decision noted that the U.S. Court of Appeals for the Third Circuit continues to adhere to a per se prohibition against a plaintiff class representative serving as class counsel.  Id. (citing Kramer v. Scientific Control Corp., 534 F.2d 1085, 1090 (3d Cir. 1976)).  The court noted that it was unaware of any case questioning the validity of the rule established in In re Cadillac, and interpreted the lack of recent cases questioning this rule as “acceptance of the well-established rule and its continued validity.”  Id. 

Of note, it acknowledged the single narrow exception to the rule adopted by In Re Cadillac, which potentially allows for an attorney to serve as both counsel and class representative in certain public interest litigation.  The Appellate Division held that the instant case did not qualify as the type of action covered by the public interest except

Implications For Employers

This decision reinforces New Jersey’s (and the Third Circuit’s) longstanding prohibition against attorneys serving as both class counsel and class representative.  While this may seem to limit class action exposure in situations when a plaintiff-attorney brings suit, employers should recognize that this procedural bar does not eliminate potential individual claims or prevent a class from proceeding with separate counsel and representative plaintiffs.

By Gerald L. Maatman, Jr., Brett Bohan, and Andrew Quay

Duane Morris Takeaways: On November 25, 2025, in Coleman, et al. v. Burger King Corp., Case No. 22-CV-20925, 2025 U.S. Dist. LEXIS 231422 (S.D. Fla. Nov. 25, 2025), Judge Roy K. Altman of the U.S. District Court for the Southern District of Florida denied a motion for class certification of three nationwide classes of consumers against one of the Burger King after the lawsuit narrowly survived two motions to dismiss.  The Court held that due to the predominance of individual questions between the proposed classes, and plaintiffs’ lack of class-wide evidence to support certification, the plaintiffs failed to establish the prerequisites for class certification from the sale of “Whoppers” and “Big Kings” across the country.  The opinion illustrates the hurdles plaintiffs face when attempting to certify multi-state, let alone nationwide, classes, and the fundamental, yet effective arguments corporate counsel can raise to defeat them.

Case Background

Plaintiffs, a group of Burger King consumers alleging that Burger King materially overstates the size of its burgers in advertisements, sought certification of three nationwide classes.  Id. at *2.  Plaintiffs sought certification under Rule 23(b)(3), which allows a district court to certify a class only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”  Id. at *6-7 (quoting Fed. R. Civ. P. 23(b)(3)).  Plaintiffs insisted that they each purchased a burger because of the advertising and would not have if the size of the burgers had been portrayed accurately.  Id. at *3.  Notably, the plaintiffs did not offer any substantive analysis on variations between state laws despite their request for certification of nationwide classes.

Burger King responded that plaintiffs’ motion could not satisfy predominance and superiority under Rule 23(b)(3) and commonality and typicality under Rule 23(a).  Id. at *8.  Burger King argued that plaintiffs’ lack of class-wide evidence, coupled with Burger King’s affirmative defenses that raise additional individualized questions, was fatal to their motion for class certification.  Id. at *33.  Also weighing against predominance, Burger King argued, the proposed class members “were exposed to a wide variety of advertisements,” and “[n]o single photograph of a burger . . . can represent the appearances of the burgers every other class member received.”  Id. at *23, 28. 

The Court’s Opinion

In a 35-page opinion, Judge Roy K. Altman denied plaintiffs’ motion for class certification for failing to carry their Rule 23 burden.  Explaining that plaintiffs are not entitled to “a mere pleading standard” on a motion for class certification, and that they must “affirmatively demonstrate” their compliance with each element of Rule 23, the Court held that plaintiffs failed to establish predominance and superiority under Rule 23(b)(3) and, at minimum, commonality under Rule 23(a).  Id. at *5 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)).

As for predominance, the Court explained that Plaintiffs needed to be able to prove “the relative smallness of the burgers [they bought compared to the burgers in the advertisements] with a few pieces of common evidence that apply with equal force to everyone.”  Id. at *30.  Plaintiffs could not do that, the Court held, because each putative class member saw a particular advertisement and received a specific burger.  Id.  Plus, by seeking certification of nationwide or multi-state classes, plaintiffs bear the heavy burden to demonstrate that “variations in state law” do not threaten to “swamp any common issues and defeat predominance.”  Id. at *10 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1261 (11th Cir. 2004)).  Plaintiffs’ motion for certification did not provide “any analysis of potential state-law conflicts,” thus “utterly fail[ing]” to meet their burden of showing that common issues of law predominate.  Id. at *12.

The Court further agreed that Burger King’s affirmative defenses raised additional individualized inquiries.  If the Court were to grant certification, a “potentially significant percentage” of the putative class members may be precluded from pursuing their claims by virtue of an arbitration clause and class action waiver that loyalty rewards program users had agreed to, and with respect to at least one class, numerous plaintiffs and putative class members did not properly notify Burger King of the alleged breaches within a reasonable time after they discovered the alleged breaches.

For similar reasons, the Court rejected plaintiffs’ proffered method of calculating class-wide damages by subtracting the price of the burger from the value of the item as determined by the jury.  Id. at *45.  Burger King menu items vary by location, and the prices likely differed throughout the class period, so the Court would need to confirm when and where each individual plaintiff purchased a burger in order to compute damages.  Id. at *46. 

Turning to superiority, the Court held that plaintiffs’ proposed classes “would create an administrative nightmare.”  Id. at *51.  Plaintiffs contended that “there are no significant or unusual difficulties in managing this case” because Burger King’s liability “can be proven by its uniform advertisements and photographs of the actual Menu Items served to customers, which are common to the entire class.”  Id. at *50.  The Court rejected plaintiffs’ conclusory argument because the proposed class involves millions of consumers stretching to 2018, “very few of whom are likely to have retained proof of (or even remember) their fast-food purchases.”  Id. at *52.

Finally, though not necessary for denying class certification, the Court held that plaintiffs failed to show that common questions they raised, such as whether Burger King’s advertisements are materially misleading, can be raised through class-wide evidence.  Id. at *54.  While plaintiffs offered questions common to the class, they failed to show that a class-wide proceeding would “generate common answers apt to drive the resolution of the litigation.”  Id. at *55 (quoting Dukes, 564 U.S. at 350).

In sum, after narrowly surviving two motions to dismiss, plaintiffs were unable to surmount their burden at the class certification stage, and the Court denied their motion for class certification.

Implications For Companies

The Court’s holding in Coleman demonstrates the burden that plaintiffs must overcome when seeking to certify a class.  Coleman shows that plaintiffs cannot rest on the allegations in their complaints to satisfy the elements of class certification and must instead put forth evidence from which courts may determine commonality and predominance.

In cases involving allegations of consumer fraud, it may not be sufficient for plaintiffs to establish that they were all deceived by the same allegedly fraudulent behavior.  Instead, to certify a nationwide class, plaintiffs may also need to overcome differences between locations; difficulties in supplying reliable, supporting proof; and variations between state laws. 

Additionally, Coleman represents a reminder of the continued utility of an arbitration agreement for defeating class certification, even where the agreement may not extend to all members of the class.

By Gerald L. Maatman, Jr., George J. Schaller, and Jeremy H. Salinger

Duane Morris Takeaways: On June 23, 2025, in Rowe, et al. v. Skyway Concession Company LLC, et al., No. 24-CV-6313, 2025 U.S. Dist. LEXIS 118449 (N.D. Ill. June 23, 2025), Judge Mary M. Rowland of the U.S. District Court for the Northern District of Illinois dismissed a putative class action based on allegations of increased toll charges and instances of double-billing by Defendants who controlled and collected revenue from the Chicago Skyway’s tolls. 

The ruling in Rowe illustrates consumers alleging consumer fraud claims stemming from an asserted breach of contract must first show they are beneficiaries to the underlying contract.  And even if the consumers are beneficiaries, then they must plead specific facts demonstrating deceptive acts or unfair practices to survive dismissal for Illinois Consumer Fraud Act claims.

Case Background

In January 2025, the City of Chicago transferred control of the Chicago Skyway (a toll road that connects the Indiana Toll Road to the Dan Ryan Expressway in Chicago) to Skyway Concession Company LLC (“Skyway Concession”) under the Chicago Skyway Concession and Lease Agreement (“Agreement”).  Id. at 2.  The Agreement granted Skyway Concession the right to set tolls and collect all toll revenue from the Chicago Skyway.  Id.  The Agreement also contained a provision that “nothing contained in the Agreement . . . [shall] be construed in any way to grant, convey or create any rights or interests in any Person not a Party to this Agreement.”  Id. 

Plaintiffs Rockwell Rowe, Jr., and Michelle Rowe (“Plaintiffs”) brought a putative class action against Skyway Concession and its indirect equity holder Calumet Concession Partners, Inc. (“Calumet Concession”) (collectively “Defendants”). 

Plaintiffs alleged that Defendants charged more for certain tolls than allowed under the Agreement, charged a $0.03 surcharge above the maximum tolls to drivers who use the electronic tolling E‑ZPass system, and double-billed some drivers for the E-ZPass surcharge.  Id. at 3. 

Plaintiffs asserted multiple causes of action, including (i) deceptive acts and unfair practices in violation of the Illinois Consumer Fraud Act (“ICFA”) (Counts I and II); (ii) breach of contract (Count III); and (iii) unjust enrichment (Count IV).  Id. at 4.  Defendants moved to dismiss.

The District Court’s Order

The Court granted Defendants Motion to Dismiss on all Counts. 

The Court began its analysis with Plaintiffs’ breach of contract claim because it was “relevant to all remaining claims.”  Id. at 4.  The Court explained that “only a party to a contract, or one in privity with a party, may enforce a contract, except that a third party beneficiary may sue for breach of a contract made for his benefit.”  Id. at 5. Because Plaintiffs were “not parties to the Agreement and the Agreement expressly provides that it does not benefit non-parties to the agreement,” id., and “Plaintiffs have not identified any provision of the [Agreement] that provides rights or specific benefits to putative class members,” id. at 6, the Court dismissed Count III.  For clarity, the Court added “[the fact] that Skyway users may indirectly benefit from [Skyway Concession’s] compliance — or indeed be indirectly harmed by [Skyway Concession’s] non-compliance—does not give them the right to enforce the contract.”  Id. 

The Court then similarly concluded that the purported ICFA claims were insufficient to survive dismissal.  The Court determined that “Plaintiffs failed to allege an actionable deceptive act” because “Plaintiffs nowhere allege that Defendants charged any toll greater than Defendants posted or otherwise communicated to the public the toll prices would be” and “putative class [members] paid the tolls that Defendants communicated they would charge.”  Id. at 9.  In sum, the Court determined, “Defendants advertised the cost to drive on the Skyway, and armed with that knowledge, Plaintiffs paid the advertised price to drive on the Skyway.”  Id. at 10.  Furthermore, the Court held that Plaintiffs double-billed EZ-Pass allegations failed to establish any deceptive act because Plaintiffs did “not allege that the charges occurred as a result of any deception.”  Id.  The Court therefore dismissed Plaintiffs’ Count I deceptive acts ICFA claim.

The Court next determined Plaintiffs “fail[ed] to allege any unfair practice that violate the ICFA.” Id.  First, Plaintiffs argued that “the charges violated 815 ILCS 510/2(a)(11) concerning misleading statements regarding price reductions,” but the Court disagreed because “the underlying alleged misconduct has nothing to do with price reductions.”  Id. at *11.  Second, plaintiffs point to a “well-established public policy that parties uphold their [contractual] obligations,” but the Court opined Plaintiffs cited no case law standing for such a policy under the ICFA.  Id.  Third, the Court reasoned Plaintiffs’ double-billed EZ-Pass surcharge allegations “likewise fail because it is not immoral, oppressive, unethical, or unscrupulous to mistakenly charge a fee.” Id. at 12.  Accordingly, the Court dismissed Plaintiffs’ Count II unfair practices ICFA claim as well. 

Given Plaintiffs’ unjust enrichment allegations involved “the same conduct underlying Counts I and II,” the Court also dismissed Count IV concerning unjust enrichment.  Id. at 12.

Accordingly, the Court granted Defendants’ Motion to Dismiss and terminated Plaintiffs’ case.

Implications For Companies

With Rowe, Illinois-based companies can rest easier knowing that consumers cannot sustain breach-of-contract claims on the theory that they are indirectly benefitted by a contract.  Moreover, the decision reaffirms that consumer discontent does not amount to a deceptive act or unfair practice required to state a claim under the Illinois Consumer Fraud Act. 

By Gerald L. Maatman, Jr. and Jennifer A. Riley

Duane Morris Takeaway: Within the vast realm of class action litigation, consumer fraud class actions remain at the forefront. Consumer fraud class actions typically involve a class of consumers who believe they were participating in a legitimate business transaction, but, due to a merchant or company’s alleged deceptive or fraudulent practices, the consumers were actually being defrauded. A wide variety of conduct gives rise to consumer fraud claims. For example, if a business or merchant makes misleading statements about a retail product’s origin, quality, or potential use, over-exaggerates a product’s benefits, imposes classic bait-and-switch tactics on consumers – wherein consumers are forced to make decisions based on inaccurate or incomplete information – or charges fees or surcharges that are unrelated to the subject of the merchant’s transaction with the consumer, a claim for consumer fraud will arise because these actions may harm consumers.

Every state has consumer protection laws, and consumer fraud class actions require courts to analyze these statutes both with respect to plaintiffs’ claims, and also with respect to choice of law analyses when a complaint seeks to impose liability upon multiple states’ consumer protection laws.

To that end, the class action team at Duane Morris is pleased to present a new publication – the 2024 edition of the Consumer Fraud Class Action Review. We hope it will demystify some of the complexities of consumer fraud class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues.  We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with consumer fraud class action litigation.

Click here to download a copy of the Duane Morris Consumer Fraud Class Action Review – 2024 eBook.

Stay tuned for more consumer fraud class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.