Missouri Merchandising Practices Act: Missouri Supreme Court Approves New Jury Instructions
On August 16, 2013, the Missouri Supreme Court adopted jury instructions for Missouri Merchandising Practices Act (MMPA) actions, which take effect on January 1, 2014. Until now, there were no MAI instructions for submitting an MMPA violation, and it was incumbent upon counsel to draft either a modified MAI or non-MAI instruction setting forth the elements of the cause of action. See Peel v. Credit Acceptance Corp., No. WD75409, 2013 Mo. App. LEXIS 655, at *9 (Mo. Ct. App. May 28, 2013).
Missouri courts have held that the purpose of the MMPA is “to preserve fundamental honesty, fair play and right dealings in public transactions.” Schuchmann v. Air Services Heating & Air Conditioning, Inc., 199 S.W.3d 228, 233 (Mo. Ct. App. S.D. 2006) (internal quotations omitted). As such, the prohibitions of the MMPA are meant to be construed more broadly than common-law fraud in order to reach any deception or unfair practice. “[T]he MMPA supplements the definition of common law fraud, eliminating the need to prove an intent to defraud or reliance. . . . The statute and the regulation paint in broad strokes to prevent evasion thereof due to overly meticulous definitions.” Id.
As discussed in the Committee Comments, the new MAI instruction focuses on the four elements of an MMPA claim, i.e.: plaintiffs must demonstrate that they (1) purchased merchandise (which includes services) from defendants; (2) for personal, family or household purposes; and (3) suffered an ascertainable loss of money or property; (4) as a result of an act declared unlawful under the Merchandising Practices Act. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 773 (Mo. banc 2007); Edmonds v. Hough, 344 S.W.3d 219 (Mo. App.2011). The Committee also notes that the MMPA “prohibits ‘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,’ by defining such activity as an unlawful practice. Section 407.020.1.”
The Commentary also emphasizes that “[t]he statute does not contain a scienter requirement for civil liability for actual damages. It is the defendant's conduct, not his intent, which determines whether a violation has occurred. State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635 (Mo.App.1988).” (internal quotations omitted). Moreover, “[a] consumer’s reliance on an unlawful practice is not required under the MMPA. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 774 (Mo. banc 2007).” Finally, the Committee also warns that “[t]he Supreme Court of Missouri has cautioned that terms used in the MMPA may have a broader meaning than similar terms used in common law. The court noted that MMPA regulations define ‘material fact’ as ‘any fact which a reasonable consumer would likely consider to be important in making a purchasing decision . . . .’ 15 C.S.R. 60-9.010(1)(C). This definition of material is broader than the materiality requirement of common law fraud.’ See Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d at 773.”
Although the new MMPA jury instruction—MAI 39.01—does not take effect until January 1, 2014, any attorney who has an MMPA case that is likely to go to a jury before the end of calendar year 2013 would be well-advised to take the Supreme Court’s new guidance to heart, in propounding proposed jury instructions.
The full Missouri Supreme Court Order adopting jury instructions for MMPA actions, may be found here.
About Missouri Law Blog
Baker Sterchi's Missouri Law Blog examines significant developments, trends and changes in Missouri law on a broad range of topics of interest to Missouri practitioners and attorneys and businesses with disputes subject to Missouri law. Learn more about the editor, David Eisenberg.
Subscribe via email
Subscribe to rss feeds
RSS FeedsABOUT baker sterchi blogs
Baker Sterchi Cowden & Rice LLC (Baker Sterchi) publishes this website as a service to our clients, colleagues and others, for informational purposes only. These materials are not intended to create an attorney-client relationship, and are not a substitute for sound legal advice. You should not base any action or lack of action on any information included in our website, without first seeking appropriate legal or other professional advice. If you contact us through our website or via email, no attorney-client relationship is created, and no confidential information should be transmitted. Communication with Baker Sterchi by e-mail or other transmissions over the Internet may not be secure, and you should not send confidential electronic messages that are not adequately encrypted.
The hiring of an attorney is an important decision, which should not be based solely on information appearing on our website. To the extent our website has provided links to other Internet resources, those links are not under our control, and we are not responsible for their content. We do our best to provide you current, accurate information; however, we cannot guarantee that this information is the most current, correct or complete. In addition, you should not take this information as a promise or indication of future results.
Disclaimer
The Missouri Law Blog is made available by Baker Sterchi Cowden & Rice LLC for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. Your use of this blog site alone creates no attorney client relationship between you and the firm.
Confidential information
Do not include confidential information in comments or other feedback or messages related to the Missouri Law Blog, as these are neither confidential nor secure methods of communicating with attorneys. The Missouri Law Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.