Section 25 Preemption

• Library: Merchandising Practices Act 2013

One issue that has arisen recently on a more frequent basis is federal law or regulation preempting the MPA. While under the Supremacy Clause of the U.S. Constitution, federal law is the “supreme law of the land” and, thus, binding on all state courts, the presumption is against federal preemption in any area traditionally controlled by state law. U.S. Const. art. VI, cl. 2; see also State ex rel. Proctor v. Messina, 320 S.W.3d 145, 148 (Mo. banc 2010); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Therefore, when it can be determined that the “clear and manifest purpose of Congress” was to preempt state law based on the “text and structure” of the law at issue, any conflicting state law will be preempted and held for naught. Proctor, 320 S.W.3d at 148 (citing Connelly v. Iolab Corp., 927 S.W.2d 848, 851 (Mo. banc 1996)).

In cases in which a defendant claims that the MPA is preempted, these claims are often based on conflict preemption. There have been a few decisions on this topic that should be noted.

In one case in which there was preemption found, Casey v. FDIC, 583 F.3d 586 (8^th Cir. 2009), the plaintiffs alleged that it violated the MPA for a mortgage company to charge fees for a nonattorney to prepare documents. The Eighth Circuit held that, while the alleged activities were an MPA violation, the federal regulations specifically addressed imposition of fees, such as those for document preparation on a mortgage initiation...