Section 23 Private Right of Action - Standing to Bring Action and Pleading Requirements

• Library: Consumer Law and Practice 2010

Section 407.025.1, RSMo 2000, provides:

Any 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, may bring a private civil action in either the circuit court of the county in which the seller or lessor resides or in which the transaction complained of took place, to recover actual damages. The court may, in its discretion, award punitive damages and may award to the prevailing party attorney's fees, based on the amount of time reasonably expended, and may provide such equitable relief as it deems necessary or proper.

Section 407.020.1, RSMo Supp. 2010, in pertinent part, provides:

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 . . . in or from the state of Missouri, is declared to be an unlawful practice. . . . Any act, use or employment declared unlawful by this subsection violates this subsection whether committed before, during or after the sale, advertisement or solicitation.

Thus, under § 407.025.1 of the MMPA, a consumer who "suffers an ascertainable loss of money or property" has standing to assert a claim for "actual damages," equitable relief, attorney fees, and punitive damages. Notably, the consumer is not required to "suffer actual damages" to bring a claim. Instead, actual damages is just one form of relief to which a consumer is entitled. To that end, an "ascertainable loss of money or property" is necessarily broader than "actual damages." One court, considering a substantially similar statute, explained that "[a]doption of the defendants' view, that ascertainable loss is equivalent to actual damages, would eviscerate the private remedy provided by [Connecticut's UDAP (Unfair and Deceptive Acts and Practices Act)]. The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a [Connecticut UDAP] action seeking either actual damages or equitable relief." Hinchliffe v. Am. Motors Corp., 440 A.2d 810, 815 (Conn. 1981).

In addition to an individual's right to bring an action under the MMPA, § 407.025.2, allows for class...