The Missouri Merchandising Practices Act

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The Missouri Merchandi Remedies for Consumer BY DOUGLASS F. NOLAND1 & JENNIFER N. WETTSTEIN2

Douglass F. Noland

Jennifer N. Wettstein

210 / Journal of the MISSOURI BAR

The purpose of this article is to examine the Missouri Merchandising Practices Act, its scope, and the remedies that it provides to Missouri consumers in claims involving the purchase or lease of merchandise. Introduction   The Missouri Merchandising Practices Act (MPA), Chapter 407 of the Revised Statutes of Missouri (RSMo), was adopted in 1967 to supplement the common law action for fraud, create a distinct statutory fraud action, and provide consumers with a means to seek relief for deceptive and unfair practices.3 The MPA serves as “an attempt to preserve fundamental honesty, fair play and right dealings in public transactions.”4 The MPA is similar to many other Unfair Deceptive Act Practices (UDAP) statutes adopted in other states for the protection of consumer rights.   The MPA applies to acts committed “before, during or after the sale, advertisement or solicitation” of merchandise.5 It provides a cause of action for “[a]ny person who purchases or leases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 407.020.”6

  Section 407.010 sets out the definitions applicable to the MPA, defining terms such as “advertisement,” “merchandise,” “sale,” and “commerce.”7 Regulations issued by the attorney general supplement the definitions to provide guidance as to what is a deceptive and unfair practice.8 Sections 407.010-407.943 contain specific provisions relating to odometer fraud, pyramid schemes and other unlawful merchandising practices.9 Remedies for automobile fraud, including odometer fraud, are also included in the act.   When a civil enforcement action is filed by a private party, the clerk of the court is to inform the attorney general and mail a copy of the judgment or decree in the case to the attorney general.10 The notice provided to the attorney general is just informational, not jurisdictional.11 The attorney general is not required to take any action on receipt of the notice, and the failure to give notice does not require the court to dismiss the action. The notice merely serves as information to the attorney general of the action.12 Originally, only the attorney general could bring an action under the MPA, but later statutes provided private parties the right to bring actions in their own name.   The MPA has a criminal provision, in that anyone who knowingly violates the MPA with intent to defraud is subject to a class D felony.13 Prosecuting attorneys and the attorney general have concurrent criminal enforcement responsibilities.14

dising Practices Act: rs Scope of the Law   The scope of the act is set forth in § 407.020.1, which provides that it is unlawful to “act, use or employ . . . deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce … in or from the state of Missouri.”15   The MPA’s scope is based on the legislature’s clear policy to protect consumers. Section 407.020 is intended “to supplement the definitions of common law fraud … to preserve fundamental honesty, fair play and right dealings in public transactions.”16 Since the MPA was enacted, it has been viewed by courts as a way to protect consumers fundamentally.17

deemed in need of protection.”19 This very fact indicates that it is “a fundamental policy embodied in a statute which is … designed to protect persons against the oppressive use of superior bargaining power.”20   “The consumer who receives the product or services through a third party such as a builder … is included within the meaning of the statute as one for whom restitution shall apply[,]”21 in accordance with the fundamental purpose of the MPA, which is to protect consumers. The broad language of the statute — “‘any person who has suffered … loss’ contemplates that other parties, besides the direct purchaser or

contracting party… [are] eligible to receive restitution”22 — helps serve the fundamental purpose of the MPA: the protection of consumers. Who is Subject to the MPA?   Any person, firm or corporation employing deceptive merchandising practices in connection with sales or leases of merchandise for personal or household use may be a defendant in an action under the MPA.23 Privity of contract between the plaintiff and the defendant is not required. 24 A wholesaler or manufacturer can be sued by a plaintiff consumer as long as the consumer can allege that a prohibited act occurred and prove the elements of a claim under the MPA.

  The MPA “is designed to regulate the marketplace to the advantage of those traditionally thought to have unequal bargaining power as well as those who may fall victim to unfair business practices.”18 The Missouri Legislature “enacted paternalistic legislation … to protect those [consumers] that could not otherwise protect themselves,” signifying that it “would not want the protections of Chapter 407 to be waived by those July-August 2013 / 211

  Corporate officers, agents, or employees can be liable individually under the MPA, but only for their own conduct in violation of § 407.020.25 Real estate brokers are subject to the MPA if they provide services in a manner that violates the act.26   The MPA exempts publishers or broadcasters of advertising who act without knowledge or shared intent with the advertiser, as well as insurance companies.27 Carriers of advertising media (television stations, newspapers, magazines, etc.) are not liable unless they know of the advertiser’s intent or purpose.28 The MPA also exempts entities subject to licensing by “the department of insurance, financial institutions and professional registration[,] … the division of credit unions[,] … or … the division of finance” unless they “specifically authorize the attorney general to [use] the powers of this chapter.”29 Elements of a Claim   Sections 407.020 and 407.025 provide four elements to a MPA claim: (1) the “use or employment … of [a] deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression or omission of any material fact,”30 (2) the unlawful act must occur in connection “with the sale or advertisement of … merchandise[,]”31 (3) the unlawful act must result in “an ascertainable loss of money or … real or personal [property][,]32 and (4) the loss must occur to a “person who purchases or leases merchandise primarily for personal, family or household purposes.”33   While the purpose of the MPA is to “supplement the definitions of common law fraud in an attempt to preserve fundamental honesty [and] fair play” in consumer transactions,34 212 / Journal of the MISSOURI BAR

the MPA does not require proof of all the elements of common law fraud.35 Deceptive or Unfair Practices   Section 407.020 prohibits unfair and deceptive practices, but does not define the term “unfair practice.” The term, however, is construed broadly to address any deceptive or unfair practice, including the concealment of facts.36 In turn, the courts are left to determine what constitutes a deceptive practice on a case-bycase basis.37 Regulations issued by the attorney general define an “unfair practice” broadly to include any practice that “[p]resents a risk of, or causes, substantial injury to consumers.”38 Nevertheless, in Ports Petroleum Company, Inc. v. Nixon,39 the Supreme Court of Missouri held that a sale of gasoline below cost was not an unfair practice within the meaning of the MPA because such a sale causes no harm to the direct consumer, even though it was required by the Missouri Motor Fuel Marketing Act.40 This stands for the proposition that an actionable unfair practice under the MPA must actually mislead a consumer to the consumer’s detriment.41   Some examples of deceptive acts include actions for false representations by a contractor that defective work will be repaired,42 false representations concerning the value of goods sold to a consumer, false statements concerning “sale” prices, or false representations and deceptive practices in the sale and advertisement of a car. Ascertainable Loss   The plaintiff must suffer “an ascertainable loss of money or property, real or personal as a result of the” defendant’s unlawful conduct.43 If the plaintiff never pays anything to the defendant, the plaintiff cannot plead the essential element of ascertainable loss necessary to bring an action

under the MPA. Merely incurring an obligation to pay does not amount to an ascertainable loss; the plaintiff must part with at least some of the consideration.44 “Someone who seeks to purchase, but never receives the goods nor pays value, cannot claim to have been damaged by any unlawful practice.”45 Purchase or Lease of Merchandise for Family Use   An essential element of a claim under the MPA is that the plaintiff must have purchased or leased goods or services.46 An action for damages under the MPA is permitted in connection with the purchase or lease of merchandise.47 “Merchandise” is broadly defined in § 407.010(3) to include “any objects, wares, goods, commodities, intangibles, real estate or services.”48 The former exclusion of real estate transactions from private actions no longer exists.49   An attempted purchase that was never consummated does not give rise to a claim.50 It should be noted, however, that a defendant’s violation of the MPA can occur before, during or after the sale or lease of goods or services.51   The purpose to which goods or services are put is largely a factual issue, but it seems fairly clear that purchases or leases for direct use by a consumer, as compared to purchases for commercial resale, are within the purview of the MPA.52 Venue   The venue for a violation of the MPA is in “the circuit court of the county [where either] the seller or lessor resides or [where] the transaction … took place.”53 Section 508.010 provides that in tort actions, when the plaintiff is injured in the state of Missouri, the county where the action must be brought is “where the plaintiff was first injured by

wrongful acts or negligent conduct alleged in the action.”54 Filing of a Claim   When a private party brings an action for a violation of the MPA, the petition claiming the violation should contain the allegations and facts showing conduct sufficient to support a claim under the MPA (i.e., a transaction subject to the MPA and that meets all the elements of a claim) and additional claims if punitive damages are applicable. The petition should also show the expense of the legal action and attorney’s fees.55 The petition does not need to cite § 407.025 to be sufficient as long as it sets forth facts adequate to bring it within the statute and it is clear the plaintiff is invoking the statute.56 The specific requirements for pleading common law fraud are inapplicable to MPA actions.   The petition under the MPA should contain: • A description of the plaintiff and defendant; • An allegation regarding jurisdiction and venue; • An allegation showing that the plaintiff purchased or leased merchandise primarily for personal or household use; • An allegation showing a deceptive or unfair practice by the defendant, e.g., a false statement or promise in connection with the sale or lease, or concealment of a defect in goods sold or leased; • An allegation showing that, as a result of the deceptive practice of the defendant, the plaintiff sustained an ascertainable loss of money or property, e.g., the plaintiff paid money to the defendant as a result of the defendant’s false claim that an item was on sale and was really worth far more than the purchase price;

• An allegation showing actual damages, computed by determining, for example, the difference in value between purchased goods as represented and their actual fair market value, or expensive repairs made as a result of the defendant’s failure to make repairs in accordance with guarantee given. Damages   The MPA provides for actual damages, punitive damages, attorney’s fees and equitable relief.57 Claims for damages, actual or punitive, under § 407.025 are subject to trial by jury.58 A plaintiff need not elect between remedies under the MPA and common law fraud or other statutory remedies before submitting claims to the jury. The only limitation is that the plaintiff cannot seek inconsistent remedies, such as rescinding a contract and at the same time enforcing it by recovering damages for breach.59 The plaintiff also cannot secure a double recovery.60   Section 407.025 specifically authorizes recovery of actual damages by a plaintiff who has suffered an ascertainable loss as a result of deceptive or unfair merchandising practices.61 The “benefit of the bargain rule” is applied to measure damages unless the plaintiff elects to rescind the transaction and seek restitution.62 For example, an automobile dealer allows the plaintiff to recover “the difference between the actual value of the property and what [the] value would have been if it had been as represented.”63   Actual damages may include: • The cost of repairing the defective goods; • The difference in value between the goods as received and as represented; and • Any other losses directly

attributable to the defendant’s deceptive or unfair practices, including consequential damages.64   While MAI 4.03 “is ordinarily the correct measure of damages in a case of fraud . . . Missouri [law] permits the use of other [damage] measures … [when] the peculiar circumstances of the fraud make the benefit of the bargain rule an inadequate measure of damages.”65   The MPA is designed “to protect [Missouri] consumers from fraudulent business practices.”66 To remedy violations and to deter future prohibited conduct, the statute allows for injunctive relief, payment to the state for the cost of prosecution, punitive damages, restitution to injured consumers, and attorney’s fees.67 Punitive Damages under the MPA   Punitive damages may be awarded to the plaintiff in actions under § 407.025.1.68 “The well-established purpose of punitive damages is to inflict punishment and to serve as an example and a deterrent to similar conduct.”69 At times it may be necessary to award significantly higher punitive damages than compensatory damages to have a sufficient deterrent effect.70 To recover punitive damages, the plaintiff must prove “by clear and convincing evidence” the defendant’s “culpable mental state” by showing either a “wanton, willful, or outrageous act or reckless disregard for an act’s consequences (from which evil motive is inferred).”71 The punitive damages awarded are subject to limitations set by § 510.265 and constitutional due process constraints.72  In Krysa v. Payne, the court undertook an extensive analysis of the due process standards enunciated by the Supreme Court in affirming July-August 2013 / 213

an award of $500,000 in punitive damages in a case in which the jury found that the plaintiff had suffered economic damages of $18,449.53.73 Although the court stated that its review was de novo, the court nevertheless applied the standard rule of deference to a jury’s factual findings and emphasized the “financial vulnerability” of the plaintiffs.74 Kyrsa also noted that punitive awards are reviewable for abuse of discretion, independent of constitutional claims.75  In Estate of Max E. Overbey v. Chad Franklin National Auto Sales North, L.L.C., the Supreme Court of Missouri addressed the punitive damage limitation under § 510.265. In reviewing a $1million punitive damage award on an MPA claim that was reduced to $500,000, pursuant to § 510.265, the Court found that the punitive damage cap of $500,000 did not violate the separation of powers, the right to trial by jury, or due process because the MPA is a statutorily created cause of action and the legislature has the power to define the right it has created.76 The Court further held that the purchasers had presented sufficient evidence to permit claims under the MPA and that “[a] corporate officer [can] be held liable” under the MPA if they have “actual or constructive knowledge of the actionable wrong.”77 The Court further examined the due process requirements of a punitive damage award and found the $500,000 did not violate due process constraints.78   Section 510.265.1 sets forth the guidelines for punitive damages in Missouri:   1. No award of punitive damages against any defendant shall exceed the greater of: (1) Five hundred thousand dollars; or (2) Five times the net 214 / Journal of the MISSOURI BAR

amount of the judgment awarded to the plaintiff against the defendant. Such limitations shall not apply if the state of Missouri is the plaintiff requesting the award of punitive damages, or the defendant pleads guilty to or is convicted of a felony arising out of the acts or omissions pled by the plaintiff. 2. The provisions of this section shall not apply to civil actions brought under section 213.111 that allege a violation of section 213.040, 213.045, 213.050, or 213.070, to the extent that the alleged violation of section 213.070 relates to or involves a violation of section 213.040, 213.045, or 213.050, or subdivision (3) of section 213.070 as it relates to housing.

a foundation showing a connection between the fraud or prior suit and the facts of the case at issue.82 Attorneys’ Fees   Attorney fees can be recovered in actions under § 407.025.1 “based on the amount of time reasonably expended.”83 However, if the plaintiff elects to submit a fraud claim to a jury, rather than an MPA claim to the court, attorneys’ fees cannot be recovered.84 Attorneys’ fees are not automatically awarded under § 407.025.1, as the trial court has discretion to refuse an award. Denial of fees can be based on the consideration of actual and punitive damages awarded.85   Actual proof of attorneys’ fees does not need to be elaborate because the trial court is deemed to be an expert on the matter. However, the best practice is to present to the court a detailed time record and hourly rate in affidavit form.

Section 510.265.2 expressly provides that the statute does not apply to actions under specific antidiscrimination laws, suggesting that the General Assembly intended that § 510.265.1 would apply to all other actions involving punitive damages.79 Estate of Overbey addressed the issue of punitive damages and the limitations of punitive damages, and ultimately held that the legislature may set limits on statutory damages in statutory causes of action.80

Instructions   There are no MAI approved instructions for claims under the MPA. MAl 23.05, regarding fraudulent misrepresentations, can provide a partial guide for MPA claims because the elements of a fraudulent misrepresentation claim and the elements of an MPA claim are essentially the same. As to damages, MAI 4.01, 4.03, and 10.01 should be used unless the plaintiff only seeks restitution.86

  In MPA cases, evidence of the defendant’s conduct after the act that caused the alleged injury may be admissible for punitive damages if the act is “so connected with the particular acts as tending to show [the] defendant’s disposition, intention, or motive in the commission of the particular acts for which damages are claimed.”81 Evidence of other suits involving fraud claims against a defendant is inadmissible absent

Equitable Relief   A plaintiff may not obtain equitable relief in a private action under the MPA unless the plaintiff first succeeds on a claim for actual damages.87 Thus, equitable relief can be awarded only incidental to a damage recovery – a reversal of the ordinary “cleanup doctrine” that damages can be awarded as incidental to a claim for injunctive relief. But such relief does not include injunctive relief.

A private plaintiff cannot obtain an injunction against future use of the illegal practice.88 Section 407.025.1 is intended to provide an area for a private plaintiff who has suffered ascertainable loss, in violation of § 407.020, to bring a private cause of action seeking individual redress for wrongs perpetrated against him in violation of the act rather than relying on the attorney general to bring a cause of action pursuant to § 407.100.89 Joinder with Other Claims   An MPA claim is commonly joined with common law fraud claims and breach of warranty claims. The plaintiff may choose between the MPA and common law fraud in submitting the case to the jury. Reported cases do not reveal which affirmative defenses, other than the statute of limitations, are available in actions under the MPA, but it would appear that the standard affirmative defenses are available.90 However, due to the requirement that malice, intent, and reliance are not required under the act, those cannot be raised as affirmative defenses in MPA claims.   A party cannot recover under both MPA and common law fraud for the same act.91 If the plaintiff elects the statutory option, the judge may

award attorneys’ fees.92 If the plaintiff elects to pursue common law fraud, the plaintiff loses the right to have the judge award attorneys’ fees.93 Comparison to Common Law Fraud   “Unfair practices do not have to be proven by the establishment of the elements of common law fraud.”94 The MPA does not require a showing of intent, and intent is not “determinative” of an MPA action.95 However, to be safe, counsel may wish to plead both statutory and common law fraud in separate counts when applicable; but, by pleading common law fraud, the plaintiff may be assuming an unnecessary burden of proof.   The required elements for a submissible case of common law fraudulent misrepresentation are: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on

the representation being true; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximately caused injury.96   At common law, “scienter” or an intent to defraud must be proven.97 Mere proof that a statement is untrue does not prove an intent to defraud.98 The existence of a confidential or fiduciary relationship between parties, coupled with a misrepresentation of material fact, can be sufficient to supply the element of intent to defraud.99   A misrepresentation may result from concealment as well as from a false representation.100 Concealment of a material fact can constitute sufficient misrepresentation to constitute fraud, even if the concealed fact can be readily found in public records.101 Recklessly made (as opposed to intentionally made) misstatements are sometimes held to be sufficient to constitute fraud, but damages will be limited to actual damages only when the misrepresentations are recklessly made.102 A negligent misrepresentation (as opposed to an intentional misrepresentation) brings about a separate cause of action in Missouri.103 However, mere negligence of interference with a contract right is

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not sufficient for a cause of action; the misstatements must rise to the level of a misrepresentation.104 For a summary of cases dealing with negligent misrepresentation, see First National Bank of Sikeston v. Goodnight.105   Reliance, like other common law fraud elements, is not required to be proven for a defendant to be liable under the MPA. Defendants in fraud cases often attempt to introduce evidence of statements or representations made outside of the written purchase order or service agreement to limit liability, but those statements do not apply in the context of the MPA.106 Regulations promulgated under the MPA and by the attorney general include definitions that confirm the standards under the MPA are less rigorous than the standards of proof of fraud.107 Consequently, proof of common law fraud necessarily establishes liability under the MPA for the same conduct if the plaintiff further establishes that the purchase or lease in question was for personal or household use.108   Although fraud or intentional misrepresentation may not be present, an unlawful pyramid scheme or repeated breaches of similar contracts is evidence of a statutory violation of the MPA.109 For common law fraud, the damages recoverable are determined by the benefit of the bargain rule. See MAI 4.03 [2012], which provides as follows: If you find in favor of the plaintiff, then you must award plaintiff such sum as you believe was the difference between the actual value of the (describe property, such as “the furnace”) on the date it was sold to plaintiff and what its value would have been on that date had (describe property) been as represented by defendant.

216 / Journal of the MISSOURI BAR

  The article, Franchises: Statutory and Common Law Causes of Action in Missouri, discusses the overlap between statutory and common law fraud remedies in the franchise area.110 Relevant Case Law   The courts have interpreted the statutory language of Chapter 407 in many cases that have provided further guidance on the scope of the MPA.  In Gibbons v. J. Nuckolls, Inc., Gibbons purchased a vehicle from an automobile dealership and sued the wholesaler for violating the MPA.111 The wholesaler improperly claimed that privity of contract is required. Gibbons urged the Court to find that the MPA does not require privity in a contract and the act should apply to automobile wholesalers. The Court agreed and held that no privity was required under the act; however, in 2008 the General Assembly enacted § 407.558, which provides: Notwithstanding any other provision of law to the contrary, no person, as defined in section 407.010, may bring a private civil action seeking monetary damages or other relief against any licensed motor vehicle dealer with whom such person did not have a commercial relationship. For purposes of this section, “commercial relationship” shall mean a relationship between a person and a licensed motor vehicle dealer which thereby directly results in the retail sale or lease of a motor vehicle or other related merchandise from that motor vehicle dealer to the retail purchaser or lessee but shall not include any motor vehicle dealer in the chain of commerce with whom the purchaser or lessee did not directly

and personally negotiate or communicate. No provision in this section shall prohibit a person from pursuing against a manufacturer or seller of a new or used automobile any claim not arising under this chapter.  In Huch v. Charter Communications, Inc., the Court held that: [t]he legislature intended the declaration of unfair or deceptive practices … to supplement the definitions of common law fraud in an attempt to preserve fundamental honesty, fair play and right dealings in public transactions; it was done to give broad scope to the meaning of the statute and to prevent evasion because of overly meticulous definitions, and leaves [it] to the court in each … instance [to determine] whether fair dealing has been violated.” 112 “Because of the [MPA]’s broad scope and the [clear legislative] policy to protect consumers, certain legal principles are not available to defeat claims authorized by the act.”113 This was an act of “paternalistic legislation … to protect those [who cannot] otherwise protect themselves.”114   Hess v. Chase Manhattan Bank, USA was a decision in which the Court held that the “omission or concealment of material fact under the MPA … requires less proof than was required to prove comparable elements of … common law fraud. ”115   Several cases have addressed the MPA and debt collection activities. In State ex rel. Koster v. Professional Debt Management, L.L.C., the court addressed the issue of “whether the broad reach of the MPA extends to unfair or deceptive debt collection

activities alleged to have occurred after the initial sale or merchandise, and by a third-party debt collector who was not a party to the original consumer transaction.”116 The court dismissed the claim for failure to state a claim, holding the MPA applies to deceptive or unfair post-sale conduct but only when such conduct relates to “the sale or advertisement of merchandise.”117 The phrase “‘before, during or after the sale’ … does not eliminate, but [rather] modifies the requirement that the unfair practices be made ‘in connection with’ the sale.”118 The court refused to “read the plain language of the MPA to provide that debt collection by a third party as alleged in the [plaintiff’s] [p]etition is ‘in connection with’ the sale of merchandise, and is included among the activities prohibited by the MPA.”119 The Court rejects that argument that: unfair practices … made “in connection with” the sale or advertisement of merchandise, … [and occur] “before, during or after” the sale extends the reach of the MPA to third-party debt collectors who acquire the debt after the sale is completed, and who have no other involvement with the sales transaction under the MPA.120   In a similar case, State ex rel. Koster v. Portfolio Recovery Associates, L.L.C.,121 the court held that when determining whether a connection with the sale or advertisement is present, “the phrase ‘in connection with’ … is not statutorily defined,” so the dictionary definition of the word – which means “relationship in fact”122 – is applied. Looking back at the petition and record, there is a finding of a “relationship in fact” to state a cause of action under the MPA.  In Zmuda v. Chesterfield Valley Power Sports, Inc., the court held the

plaintiff sufficiently pleaded a cause of action for a violation of the MPA.123 The “petition alleges that charging a document preparation fee is a ‘deception and unfair practice’” under the terms provided in the MPA.124  In Estate of Overbey v. Chad Franklin National Auto Sales North, L.L.C., the Court held that the statutory punitive damages limitation did not violate the separation of powers doctrine, the right to a trial by jury or the due process clause.125 The Court also held that a corporate officer may be held liable under the MPA if it is shown by evidence of probative force that he had actual or constructive knowledge of the actionable wrongs and participated therein. Conclusion   The MPA is a significant statute for the Missouri consumer who has been the subject of deceptive and unfair practice in the purchase of merchandise. The scope of the MPA is broad and the Court’s interpretation of the act continues to create broad remedies for Missouri consumers. Endnotes

  1 Douglass F. Noland is a graduate of William Jewell College, Liberty, Missouri, and the University of Missouri-Kansas City School of Law. He is a former Chief Assistant Prosecuting Attorney in Clay County, Missouri. He is a member of The Missouri Bar Board of Governors. He is a member of the Noland Law Firm, L.L.C. in Liberty, Missouri.   2 Jennifer N. Wettstein is a graduate of Drake University, Des Moines, Iowa, and the University of Missouri-Kansas City School of Law. She is an associate with the Noland Law Firm, L.L.C., Liberty, Missouri.  3 State ex rel. Danforth v. Independence, Inc., 494 S.W.2d 362, 368 (Mo. App. W.D. 1973).  4 Id.  5 Schuchmann v. Air Servs. Heating & Air Conditioning, Inc., 199 S.W.3d 228, 232 (Mo. App. S.D. 2006). (Emphasis in original.)   6 Section 407.025.1, RSMo Supp. 2012.   7 See § 407.010, RSMo Supp. 2012.   8 15 C.S.R. § 60-8.020, Unfair Practice in General.   9 See Mikulich v. Wright, 85 S.W.3d 117 (Mo. App. W.D. 2002) (pyramid scheme).   10 Section 407.025.7, RSMo Supp. 2012.

 11 Pointer v. Edward L. Kuhs Co., 678 S.W.2d 836, 842 (Mo. App. E.D. 1984).  12 Id.   13 Section 407.020.3, RSMo Supp. 2012.   14 Section 407.020.4, RSMo Supp. 2012.   15 Section 407.020.1, RSMo Supp. 2012.  16 See Danforth, 494 S.W.2d at 368.  17 State ex rel. Nixon v. Continental Ventures, Inc., 84 S.W.3d 114 (Mo. App. W.D. 2002).  18 Huch v. Charter Commc’ns, Inc., 290 S.W.3d 721, 725 (Mo. banc 2009).  19 Id. at 725-26.  20 Id. at 726, quoting Restatement (Second) of Conflicts §187 cmt. g (1971).  21 Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669 (Mo. banc. 2007).  22 Id.   23 Sections 407.020.1 and 407.010.5, RSMo Supp. 2012.  24 Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667 (Mo. banc 2007); but see § 407.558, RSMo Supp. 2012, which appears to limit Gibbons in regard to licensed motor vehicle dealers.  25 State ex rel. Ashcroft v. Mktg. Unlimited of Am. Inc., 613 S.W.2d 440, 447 (Mo. App. E.D. 1981); see also Welch v. Contreras, 174 S.W.3d 53 (Mo. App. W.D. 2005) (suit against individual employee permissible; claim filed against employer in two different states based on identical facts constituted splitting of cause of action).  26 Pointer, 678 S.W.2d 836, 841.   27 Section 407.020.2(1), RSMo Supp. 2012.  28 Id.   29 Section 407.020.2(2), RSMo Supp. 2012.   30 Section 407.020.1, RSMo Supp. 2012.  31 Id.   32 Section 407.025.1, RSMo Supp. 2012.  33 Id.  34 Danforth, 494 S.W.2d at 368; Schuchmann, 199 S.W.3d 228, 233 (Mo. App. S.D. 2006) (statute and regulation not confined by “overly meticulous definitions.”).  35 Clement v. St. Charles Nissan, Inc., 103 S.W.3d 898, 899-900 (Mo. App. E.D. 2003); State ex rel. Webster v. Milbourn, 759 S.W.2d 862 (Mo. App. E.D. 1988).  36 State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635 (Mo. App. E.D. 1988).  37 Id.   3815 C.S.R § 60-8.020(1)(B).   39 37 S.W.3d 237, 239-40 (Mo. banc 2001).   40 Sections 416.600-416.640, RSMo 2000.  41 See also State ex rel. Nixon v. Telco Directory Publ’g, 863 S.W.2d 596, 604 (Mo. banc 1993). See Huch v. Charter Commc’ns, Inc. 290 S.W.3d 721, 724-25 (Mo. banc 2009) (where the court found that the purpose of the act was to provide fair dealings to consumers).  42 State ex rel. Webster v. Milbourn, 759 S.W.2d 862, 863-64 (Mo. App. E.D. 1988).   43 Section 407.025.1, RSMo Supp. 2012.   44 Compare Clement v. St. Charles Nissan, July-August 2013 / 217

Inc., 103 S.W.3d 898 (Mo. App. E.D. 2003) (loss sufficiently pleaded by allegations of continuing lease payments) with Freeman Health Sys. v. Wass, 124 S.W.3d 504 (Mo. App. S.D. 2004) (no loss pleaded, as consumer had never paid for merchandise in question).  45 Walsh v. Al West Chrysler, Inc., 211 S.W.3d 673, 675 (Mo. App. S.D. 2007) (evidence of “wasted time” in finding another vehicle to purchase did not support damage award; no evidence of monetary value of lost time).  46 Ziglin v. Players MH, L.P., 36 S.W.3d 786, 790 (Mo. App. E.D. 2001).   47 Section 407.025.1, RSMo Supp. 2012.   48 See Freeman Health Sys. v. Wass, 124 S.W.3d 504 (Mo. App S.D. 2004) (medical supplies included within definition).  49 Hess v. Chase Manhattan Bank, USA, 220 S.W.3d 758, 768-69 (Mo. banc 2007) (the services of a real estate broker in connection with a real estate transaction can come within the statute.) See Detling v. Edelbrock, 671 S.W.2d 265, 272-73 (Mo. banc 1984); and Pointer v. Edward L. Kuhs Co., 678 S.W.2d 836 (Mo. App. E.D. 1984).  50 Jackson v. Charlie’s Chevrolet, Inc., 664 S.W.2d 675 (Mo. App. E.D. 1984) (sale of automobile, though void for non-compliance with the title transfer law, was NOT actionable under the MPA).  51 Schuchmannn, 199 S.W.3d 228, 232 (repudiation of “lifetime” warranty was unfair practice notwithstanding lack of evidence of intent to repudiate when warranty was first given).  52 Pointer, 678 S.W.2d 836.   53 Section 407.025.1, RSMo Supp. 2012.   54 Section 508.101.4, RSMo Supp. 2012.   55 Section 407.025.1, RSMo Supp. 2012; Viene v. Concours Auto Sales, Inc., 787 S.W.2d 814, 816 (Mo. App. E.D. 1990); Ullrich v. CADCO, Inc., 244 S.W.3d 772, 779 (Mo. App. E.D. 2008).  56 See Lauria v. Wright, 805 S.W.2d 344, 346 (Mo. App. E.D. 1991).   57 Section 407.025.1, RSMo Supp. 2012.   58 See Scott v. Blue Springs Ford Sales, Inc., 176 S.W.3d 140, 141 (Mo. banc 2005).  59 Id. at 142-43 (discusses Trimble v. Pracna, 167 S.W.3d 706 (Mo. banc 2005) and “the election of remedies doctrine and the election of inconsistent theories of recovery.”).  60 Id.   61 Section 407.025.1, RSMo Supp. 2012.  62 Morehouse v. Behlmann Pontiac–GMC Truck Serv., Inc., 31 S.W.3d 55, 61-63 (Mo. App. E.D. 2000); Sunset Pools of St. Louis, Inc. v. Schaefer, 869 S.W.2d 883, 886 (Mo. App. E.D. 1994).  63 Morehouse, 31 S.W.3d at 61.  64 Ullrich v. CADCO, Inc., 244 S.W.3d 772, 779 (Mo. App. E.D. 2008); Viene v. Concours Auto Sales, Inc., 787 S.W.2d 814 (Mo. App. E.D. 1990); see also Pointer v. Edward L. Kuhs Co., 678 S.W.2d 836, 844-45 (Mo. App. E.D. 1984). 218 / Journal of the MISSOURI BAR

  65 See Kerr v. First Commodity Corp. of Boston, 735 F.2d 281, 285 (8th Cir. 1984); Strebler v. Rixman, 616 S.W.2d 876, 878-79 (Mo. App. E.D. 1981).  66 State ex rel. Nixon v. Telco Directory Publ’g., 863 S.W.2d 596, 601 (Mo. banc 1993).  67 Hess, 220 S.W.3d at 771; § 407.025.1, RSMo Supp. 2012.  68 Hess v. Chase Manhattan Bank, USA, 220 S.W.3d 758, 771 (Mo. banc 2007); Cohen v. Express Fin. Servs., Inc., 145 S.W.3d 857, 86263 (Mo. App. W.D. 2004).  69 Hess, 220 S.W.3d at 771.   70 See Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir. 2003) (upholding punitive damages of $186,000 to $5,000 in compensatory damages).  71 Werremeyer v. K.C. Auto Salvage Co., 134 S.W.3d 633, 635 (Mo. banc 2004); see also Walsh v. Al West Chrysler, Inc., 211 S.W.3d 673 (Mo. App. S.D. 2007) (mere breach of contract not sufficient to support an award of punitive damages).  72 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-19 (U.S. 2003). See also: Philip Morris USA v. Williams, 549 U.S. 346, 353-54 (2007) (limits on jury consideration of evidence of harm to third persons caused by defendant’s conduct); Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433-34 (2001); BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996); Estate of Overbey v. Chad Franklin Nat’l Auto Sales North, LLC, 361 S.W.3d 364, 372-74 (Mo. banc 2012).   73 176 S.W. 3d 150 (Mo. App. W.D. 2005).  74 Id. at 157.  75 Id. at 156; see also Cohen, 145 S.W.3d at 863-64.   76 361 S.W.3d 364, 376 (Mo. banc 2012); § 510.265, RSMo Supp. 2012.  77 Id. at 371-72.  78 Id. at 374.   79 Section 510.265, RSMo Supp. 2012; see also Hervey v. Mo. Dep’t of Corrections, 379 S.W.3d 156 (Mo. banc 2012).   80 361 S.W. 3d 364 (Mo. banc 2012).  81 Maugh v. Crysler Corp. 818 S.W.2d 658, 663 (Mo. App. W.D. 1991), citing Charles F. Curry & Assocs. v. Hedrick, 378 S.W.2d 522 (Mo. 1964). See Cohen v. Express Fin. Servs., Inc., 145 S.W.3d 857, 868 (Mo. App. W.D. 2004); Ullrich v. Cadco, Inc., 244 S.W.3d 772, 780-81 (Mo. App. E.D. 2008).  82 Ullrich, 244 S.W.3d at 780-81.   83 Section 407.025.1, RSMo Supp. 2012.  84 Gollwitzer v. Theodoro, 675 S.W.2d 109, 111 (Mo. App. E.D. 1984).  85 Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 167 (Mo. App. W.D. 2006).   86 215 S.W.3d at 178-79.  87 Freeman Health Sys. v. Wass, 124 S.W.3d 504, 509 (Mo. App. S.D. 2004).   88 215 S.W.3d at 162.  89 Id. at 161.  90 See State v. Polley, 2 S.W.3d 887, 892 (Mo. App. W.D. 1999) (mitigation defense

waived when it was not pleaded).  91 Gollwitzer, 675 S.W.2d at 111.  92 Id. (interpreting § 407.025).  93 Id.; Hoffman v. Quality Chrysler Plymouth Sales, Inc., 706 S.W.2d 576, 581 (Mo. App. E.D. 1986); Kawin v. Chrysler Corp, 636 S.W.2d 40, 45 (Mo. banc 1982).  94 State ex rel. Webster v. Cornelius, 729 S.W.2d 60, 64 (Mo. App. E.D. 1987).  95 Id.  96 Hess, 220 S.W.3d 758, 765; Clark v. Olson, 726 S.W.2d 718, 719 (Mo. banc 1987).  97 Cohen v. Metro. Life. Ins. Co., 444 S.W.2d 498, 505 (Mo. App. E.D. 1969).  98 Id.  99 McKeehan v. Wittels, 508 S.W.2d 277, 280-81 (Mo. App. E.D. 1974); Schimmer v. H. W. Freeman Constr. Co., 607 S.W.2d 767, 770 (Mo. App. E.D. 1980).  100 Hutchings v. Tipsword, 363 S.W.2d 40, 45 (Mo. App. E.D. 1962).  101 Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 228 (Mo. App. E.D. 1980); Fairmont Foods Co. v. Skelly Oil Co., 616 S.W.2d 548, 550 (Mo. App. W.D. 1981).  102 White v. Superior Trailer Sales, Inc., 604 S.W.2d 812, 814 (Mo. App. W.D. 1980).  103 Gerich v. Gen. Motors Corp., 588 S.W.2d 107, 115 (Mo. App. W.D. 1979).  104 J. Louis Crum Corp. v. Alfred Lindgren, Inc., 564 S.W.2d 544, 551 (Mo. App. W.D. 1978).   105 721 S.W.2d 122, 124-25 (Mo. App. S.D. 1986).   106 See Slusher v. Jack Roach Cadillac, Inc., 719 S.W.2d 880 (Mo. App. W.D. 1986) (court held that under the MPA the plaintiff does not need to prove that the defendant specifically intended to violate the statute).   107 15 C.S.R. § 60-8.020.   108 See Hess, 220 S.W.3d 758, 773-74.  109 State ex rel. Ashcroft v. Wahl, 600 S.W.2d 175, 181-82 (Mo. App. W.D. 1980).   110 Dennis D. Palmer & John C. Monica, Franchises: Statutory and Common Law Causes of Action in Missouri, 45 Mo. L. Rev., 42, 5364 (1980).   111 216 S.W.3d 667 (Mo. banc 2007).   112 290 S.W.3d 721 (Mo. banc 2009) (West Headnote 6).  113 Id. at 725.  114 Id. at 725-26.   115 220 S.W.3d 758, 774 (Mo. banc 2007).   116 351 S.W.3d 668, 671 (Mo. App. E.D. 2011).  117 Id.  118 Id. at 674.  119 Id. at 675.  120 Id. at 674 (emphasis in original).   121 351 S.W.3d 661 (Mo. App. E.D. 2011).  122 Id. at 665.   123 267 S.W.3d 712 (Mo. App. E.D. 2008).  124 Id. at 716.   125 361 S.W.3d 364, 369 (Mo. banc 2012).