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 st