Missouri
Pages | 339-368 |
339
CHAPTER 27
MISSOURI
A. Scope of the Statute and Elements of a Cause of Action
The Missouri Merchandising Practices Act (MMPA)1 was enacted to
supplement “the definitions of common law fraud in an attempt to preserve
fundamental honesty, fair play and right dealings in public transactions.”2
The MMPA prohibits the “act, use or employment by any person of any
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 or the solicitation of any funds for any charitable purpose.”3
A “person” under the Act means “any natural person or his legal
representative, partnership, firm, for-profit or not-for-profit corporation,
whether domestic or foreign, company, foundation, trust, business entity
or association, and any agent, employee, salesman, partner, officer,
director, member, stockholder, associate, trustee or cestui que trust
thereof.”4 The definition of “person” not only holds companies liable for
the acts of their agents, but also holds those individuals liable for their own
personal conduct that violates the statute.5 However, while the definition
of “person” includes “for-profit” and “not-for-profit” corporations, it does
not include public corporations that are a body politic of the state, and thus
those entities are not subject to the MMPA.6 A viola tion of the MMP A can
1. MO. REV. STAT. § 407.050 et. seq.
(Mo. Ct. App. 1973).
3. MO. REV. STAT. § 407.020.1.
4. Id. § 407.010(5).
(Mo. Ct. App. 1981) (“the definition of ‘person’ clearly indicates a
legislative intent to subject those ‘persons who have engaged in unlawful
practices . . . whether they are officers, salesmen or employees of a
corporation or acting in their individual ca pacity”); but see State ex rel.
(affirming directed verdict for individual where evidence of his personal
involvement was lacking).
App. 2021) (affirming dismissal of MMPA claims against a public
340 State Consumer Protection Law
occur “before, during or after the sale, advertisement or solicitation.”7
Both the government and private parties may take action under the
MMPA.8 However, private plaintiffs are subject to additional elements and
limitations when attempting to bring a private right of action.
1. Unlawful Acts and Practices
Under statutory authority,9 the Missouri Attorney General has
promulgated rules broadly and separately defining each of the statutorily
listed unlawful practices. The defined terms include “deception,”10
“fraud,”11 “false pretense,”12 “false promise,”
13 and “misrepresentation.”14
university because public corporations are not “persons” who can be sued
under the MMPA).
7. MO. REV. STAT. § 407.020.1.
8. Id. § 407.025 (providing a private right of action); id. § 407.100 (providing
for enforcement by the Missouri Attorney General).
9. Id. § 407.145; see Huch v. Charter Commc’n, 290 S .W.3d 721, 724–25
(Mo. 2009) (stating d elegation of rulemaking authority “includes the
authority to promulgate rules setting out the scope and meaning of the
act”); State ex rel. Nixon v. Telco Directory Publ’g, 863 S.W.2d 596, 601
(Mo. 1993 ) (noting that in 1986, the Missouri legislature “gr ant[ed] the
attorney general authority to promulgate rules setting out the exact scope
of Missouri’s law and the meaning of the words employed in the
Merchandising Practices Act”).
10. “Deception” is “any method, act, use, practice, advertisement or
solicitation that has the tendency or capacity to mislead, deceive or cheat,
or that tends t o create a false impr ession.” MO. CODE REGS. ANN. tit. 15,
§ 60-9.020(1).
11. “Fraud” is “any acts, omissions or artifices which involve falsehood,
deception, trickery, breach of legal or equitable duty, trust, or confidence,
and are injurious to another or by which an undue or unconscientious
advantage over another is obtained.” Id. § 60-9.040(1).
12. “False pretense” is “any use of trick or deception, forgery, or false and
fraudulent representation, statement, pretense, instrument or device with
the intent to defraud.” Id. § 60-9.050(1).
13. “False promise” is “any statement or representation which is false or
misleading as to the maker’s intention or ability to perform a promise, or
likelihood the promise will be performed.” Id. § 60-9.060(1).
14. “Misrepresentation” includes “an untrue statement of material fact”, id.
§ 60-9.080(1), any “assertion that is not in accord with the facts,” id. § 60-
9.070(1), and any person’s failure “to state a material fact necessary in
order to make statements made, in light of the circumstances under which
they are made, not misleading.” Id. § 60-9.090(1).
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