No Reliance Required Under Missouri's Merchandising Practices Act

Missouri consumers who have been victimized by deceptive marketing practices do not need to prove that they relied upon any particular misrepresentation or omission in purchasing a good or service to recover under Missouri's Merchandising Practices Act ("MMPA"). Rather, they simply must prove that the defendant engaged in deceptive or unfair marketing practices, and that they suffered ascertainable loss by purchasing the good or service. This is important not only in cases in which individual consumers have asserted claims, but also is particularly important in consumer fraud class actions, where defendants typically argue that individual issues of reliance preclude class certification.

The "fundamental purpose: of the MMPA is the "protection of consumers." Huch v. Charter Comm., Inc., 290 S.W.3d 721,724 (Mo. banc 2009) (quoting State ex rel. Nixon v. Continental Ventures Inc., 84 S.W.3d 114, 117 (Mo. App. 2002). "[T]o promote that purpose, the act prohibits false fraudulent or deceptive merchandising practices." Id. "The legislature intended section 407.020 to "supplement the definitions of common law fraud in an attempt to preserve fundamental honesty, fair play and right dealing in public transactions." Id. (quoting State ex rel. Danforth v. Independence Dodge, Inc., 494 S.W.2d 362, 368 (Mo. App. 1973)): see also Plubell v. Merck & Co., Inc ., 289 S.W.3d 707, 711 (Mo. App. 2009) (purpose of MMPA "is to preserve fundamental honesty, fair play and right dealings in public transactions.").

Mo. Rev. Stat. § 407.020.1 provides that "[t]he act, or use of employment by a person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice of the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise . . . is declared to be an unlawful practice." Mo. Rev. Stat. § 407.025.1 authorizes civil actions 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 or a method, act or practice declared unlawful by section 407.020."

As held in the Plubell decision and other cases, the MMPA does not require the plaintiff to prove reliance or how the defendant's conduct influenced purchasing behavior. "Both our case law and the governing [MMPA] regulations make clear that the consumer's reliance on an unlawful practice is not required under the MMPA." Plubell, 289 S.W.3d at 714 (citing Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 774 (Mo. 2007); Schuchmann v. Air Servs. Heating & Air Conditioning, Inc., 199 S.W.3d 228, 232 (Mo. Ap. 2006); State ex rel. v. Nixon v. Beer Nuts, Ltd., 29 S.W. 3d 828, 837 (Mo. App. 2000); 15 CSR §§ 60-9.020-9.070). The Western District in Plubell specifically held that "Plaintiffs are not required to prove [that] they or their physicians relied on Merck's alleged misrepresentations about Vioxx and consequently, they are not required to offer individualized proof that the misrepresentations colored the decision to take Vioxx." Id.

The causation component of the MMPA also is not tied to how the defendant's conduct influenced consumers' behavior. The MMPA "does not require that an unlawful practice cause a 'purchase.'" Plubell, 289 S.W.3d at 714. Rather, the MMPA authorizes suit for a person who purchases merchandise "and thereby suffers an ascertainable loss of money or property, real or personal, as a result of [an unlawful practice]." Id. (quoting Mo. Rev. Stat. § 0407.025) (emphasis original to opinion). The words "as a result of" modify "ascertainable loss," not "purchase or leases." Thus, "a plaintiff's loss should be a result of the defendant's unlawful practice, but the statute does not require that the purchase be caused by an unlawful practice. Therefore, the class members are not individually required to show what they would or would not have done had the product not been misrepresented and the risks know." Id. (emphasis original).

This fundamental and distinctive principle of Missouri consumer protection law is very important in Missouri consumer fraud class actions. As exemplified by Plubell, defendants will not be able to defeat class certification by arguing that individual issues of reliance predominate over common issues, and therefore that class certification is inappropriate. This is one of several ways in which the MMPA is pro-consumer.

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