ST. LOUIS — The Missouri Merchandising Protections Act (MPA) may be a thing of the past if state Senate Bill 5 clears the chamber and is ultimately signed into law by Gov. Eric Greitens.
The MPA, which was enacted in 1967, creates a legal recourse for people like Shannon and Christopher Leslie of Greenwood who dealt with a business with dishonest practices. The couple purchased a car in August 2015 from All Cars LLC in nearby Raytown. As part of the deal, the couple traded in their old car and the dealer promised to pay off the balance owed on the trade-in vehicle. In the end All Cars, allegedly broke its promise by never paying off the loan on the trade-in car. All Cars not only allegedly kept the trade-in vehicle without paying it off, the business closed, leaving the Leslies with a payment for their old car, the new car they bought from All Cars and no recourse other than to pursue a legal claim under the MPA.
The proposed bill would defer Missouri interpretation of law and rely instead on the interpretations offered by the federal government through the Federal Trade Commission (FTC).
According to the Missouri Association of Consumer Attorneys, without the MPA the Leslies and thousands of other residents of the state would be left without legal recourse for dishonest business practices. Bryce Bell, an attorney who specializes in protecting consumers, said that the couple's case is a familiar story.
“The vast majority of (the cases filed under the MPA) are single, individual claims where people have gotten screwed,” Bell told the St. Louis Record. “The real harm (in passing Senate Bill 5) is the vast majority of consumers that won’t have anyone to fight for them.”
There has been a lot of talk in Missouri lately about frivolous lawsuits and out-of-state plaintiffs, also known as “tourist litigants,” filing class-action suits in the state, but the changes to the MPA won’t have a real effect on those cases, Bell said.
“Who’s going to be left out in the cold here are the most vulnerable citizens in Missouri, the people that don’t have the money to pay for a lawyer; the people where the economics simply don’t work," he said. "And those cases will never be brought and those businesses will get away with whatever unfair practices they’re engaged in.”
Attorneys opposed to Senate Bill 5 are concerned that the pending legislation and the changes it would bring for the state of Missouri seem out of place. Missouri is known for its efforts to eschew the rulings of the federal government, including a failed attempt in 2013 to nullify federal gun laws in the state.
“First of all, it’s strange that this proposed bill seems to abdicate Missouri jurisprudence,” Bell said. “We’re in an era now where anything to do with the federal government is toxic, and yet (Senate Bill 5 is) seeking to defer states' rights and Missouri jurisprudence to the FTC, which is highly unusual.”
The Missouri Association of Consumer Attorneys has commented on the proposed changes to the MPA and what Senate Bill 5 would actually mean for consumers by releasing nearly 20 stories of victims who filed suit under the MPA to collect damages.
There are other legal arguments being made concerning the MPA and Senate Bill 5, according the Americans for Tort Reform Association (ATRA). The group compiles its own list of lawsuits that it calls “flimsy MPA lawsuits filed in recent years.” The list from ATRA includes lawsuits against Nestle and the Hershey Co. for packages that aren’t completely full, although packages correctly state the amount of food contained within. The argument from attorneys is that the non-transparent packaging misleads consumers into thinking they are purchasing more snack food than they actually are.
“With this provision, our courts can rely on well thought-out decisions made by regulatory agencies and decades of guidance from the Federal Trade Commission,” Jennifer Artman, a Kansas City-based attorney who testified in support of Senate Bill 5 on ATRA’s behalf, said. “It removes the very real risk of a plaintiffs' lawyer bringing a private lawsuit claiming a business’s action is unfair or misleading when that same action is permitted by a government agency."
Bell and attorneys like him who file lawsuits on behalf of consumers disagree.
“If you look at the unfairness standard that’s applied by the FTC, it’s really not sufficiently precise, to give any kind of meaningful guidance to people,” he said. “So in effect, I think that’s going to potentially lead to more litigation about exactly what the unfairness standard is as it relates to the FTC’s current interpretation. So that’s problematic from the get-go.”
James Muehlberger, a Missouri litigator who has defended several of MPA cases and works with Artman, said that there are a lot of MPA class-actions going through the state courts.
“These are lawyer-driven claims that fight over whether a company can fit more Skittles or Hot Tamales in a box or if cupcake mix or cleaning products qualify as ‘natural,’” he said.
Senate Bill 5 is still has a way to go before any changes are made to the MPA in Missouri, but it’s certain with so much litigation hanging in the balance, both sides will have more to say.