MISSOURI MERCHANDISING PRACTICES ACT

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Our office gets calls everyday from home purchasers who discover after taking possession that there is a Material Defect to the property purchased – defective sewer line, defective foundation, defective roof, defective mechanical systems, defective plumbing, and the remedy in these cases usually falls under the Missouri Merchandising Practices Act.

The Missouri Merchandising Practices Act (MMPA) exists to protect consumers.

Missouri’s Supreme Court has observed that the unfair practices declared unlawful by the MMPA are exceedingly broad and, for better or worse, cover every practice imaginable, and every unfairness to whatever degree. Because attorneys may recover attorneys’ fees if a defendant is held liable for an MMPA action, it may be easier to find a lawyer to take your case, even if the damages are not significant.
The elements of an MMPA Claim

There are four elements to an MMPA claim: (1) the plaintiff purchased, or attempted to purchase, merchandise (which includes services) from a defendant in the state of Missouri; (2) the plaintiff’s purchase of, or attempt to purchase, merchandise (or services) was for personal, family, or household purposes; (3) the plaintiff suffered an ascertainable loss of money or property; and (4) the plaintiff’s ascertainable loss was a result of an action by a defendant that has been declared unlawful by § 407.020 RSMo.

The MMPA statute declares many things to be unlawful. For example, the MMPA specifically prohibits “any deception, fraud, … [or] misrepresentation.” It also prohibits “the concealment, suppression, or omission of any material fact.” However, reliance is expressly not an element of the MMPA. Thus, the fourth element requires the plaintiff to establish that his or her ascertainable loss was the result of either deception or fraud or a misrepresentation or the concealment or suppression or omission of any material fact by a defendant. Any one of these acts is sufficient to satisfy this element. Importantly, the MMPA specifically states that these acts can be before, during, or after the sale. The only requirement for this fourth element is that the ascertainable loss be the result of the unlawful act. There is no requirement that the ascertainable loss occur before the sale. Thus, damages which arise after the sale are also recoverable (as they would be in other cases).

If these elements are satisfied, then the plaintiff may recover his or her actual damages. Importantly, actual damages are not limited to the ascertainable loss. For instance, emotional distress damages may be recoverable.
Reliance is not an element

The MMPA is a strict liability statute. As such, it does not require intent on the part of the actor, but it also does not require reliance. Indeed, even a consumer who admits that they did not believe the false statements may still recover damages arising from those false statements. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 774 (Mo. banc 2007) (“a fraud claim requires both proof of reliance and intent to induce reliance; the MPA claim expressly does not.”) (citing 15 C.S.R. § 60-9.110(4)).

Likewise, the MMPA does not contain an intent requirement for civil liability for actual damages. Thus, even if the defendant does not know whether a representation is not truthful or otherwise know that it is committing an unlawful act, that does not defeat a plaintiff’s claim under the MMPA. See State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635 (Mo. App. 1988) (“It is the defendant’s conduct, not his intent, which determines whether a violation has occurred.”).
Damages recoverable under the MMPA

Upon a showing of the four elements of the MMPA claim, a plaintiff is permitted to recover all of his or her “actual damages.” The statute does not define what constitutes “actual damages.” There is little question that out-of-pocket losses and diminution of value damages are recoverable. But these are not the only types of actual damages which may be recovered under the MMPA. In addition, to the damages discussed below, a plaintiff may in certain circumstances recover punitive damages.
Inconvenience damages

The law is clear that inconvenience damages are recoverable under an MMPA claim. Crank v. Firestone Tire & Rubber Co., 692 S.W.2d 397, 408 (Mo. App. 1985) (“when the inconvenience is coupled with a compensable element of damage, the inconvenience occasioned by the breach may be compensated where it is supported by the evidence and shown with reasonable certainty.”).
Garden variety emotional distress damages

These types of emotional distress damages are recoverable in MMPA cases. In Lewellen v. Franklin, the Missouri Supreme Court En Banc affirmed a judgment in an MMPA case which awarded a consumer damages for “damage to her good credit”, “stress of being unable to make her loan payments” and “fear that she would go to jail.” 441 S.W.3d 136, 147 (Mo. banc 2014) (emphasis added). Likewise, in Dierkes v. Blue Cross & Blue Shield of Mo., the Missouri Supreme Court recognized that in fraud cases the benefit of the bargain rule can be inadequate, in which case “other measures of damages may be used.” 991 S.W.2d 662, 669 (Mo. banc 1999)
Garden variety emotional distress damages do not require medical diagnosis

Garden variety emotional distress damage are “ordinary or common place emotional distress, which [are] simple or usual.” Recently, the Missouri Court of Appeals, Western District has held that garden variety emotional distress damages such as “humiliation may be established by testimony or inferred from the circumstances. Intangible damages, such as pain, suffering, embarrassment, emotional distress, and humiliation do not lend themselves to precise calculation.” Soto v. Costco Wholesale Corp., 502 S.W.3d 38, 55 (Mo. App. 2016). Specifically, these damages do not require medical testimony, and may be supported solely based upon testimony of the plaintiff and lay witnesses.

In conclusion, the MMPA is very broad and can be used against parties who use any unlawful act or deceptive practice in connection with the sale or services of a product for personal, family, or household purposes. You will see the MMPA asserted a lot of the time in Missouri class action cases where the damages may be minor but the defendant deceived hundreds or even thousands of consumers. You will also have a better chance of a lawyer taking your case because the MMPA allows for attorneys’ fees if you win your case.

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