Two years since MMPA reform: How has it changed Missouri consumer litigation?

Jennifer J. Artman and Cary Silverman  
Jennifer Artman is a partner in Shook, Hardy & Bacon L.L.P. in Kansas City. Cary Silverman is a partner in the firm’s Washington, D.C.-based Public Policy Group. Both testified for the  American Tort Reform Association in  support of amendments to the MMPA  during a multi-year effort toward enactment.

What led to the 2020 reforms?

The MMPA was initially created to protect consumers by declaring any deception, misrepresentation, or unfair practice in connection with the sale of advertisement of any merchandise to be unlawful.[2] But as the Supreme Court of Missouri has recognized, the statute’s language is “unrestricted, all-encompassing and exceedingly broad.”[3] Application of this broad language devolved. “For better or worse, the literal words cover every practice imaginable and every unfairness to whatever degree.”[4]

Between 2000 and 2009, there was a 678% increase in reported MMPA decisions.[5] While the MMPA was “initially celebrated as empowering consumers,” critics noted that “the expansion of the original statute tipped the balance from protecting consumers to encouraging excessive consumer litigation.”[6] The growth of consumer litigation in Missouri impacted nearly every industry, including food and beverages, cosmetics, household goods, automobiles, and financial and technology services, among others.

Missouri became known as a hot jurisdiction for consumer class actions. Particularly popular were lawsuits targeting “natural” food products, which alleged that the products did not qualify due to the presence of ingredients such as citric acid or the leavening agent sodium acid pyrophosphate; genetically modified corn or soy; or the product’s processing.[7] Also common were “slack fill” claims, which alleged that a consumer would expect a product to contain more than the amount accurately stated on the label simply due to the size of its packaging.[8] For example, these lawsuits argued over the amount of Mike and Ike and Hot Tamales that could fit in a box.[9] In addition, traditional personal injury complaints sometimes included MMPA claims, potentially as a means to seek recovery of attorneys’ fees that would not otherwise be available; circumvent core elements of a claim or avoid defenses; or raise settlement demands. Plaintiffs used this strategy in product liability,[10] medical malpractice,[11] and other litigation with mixed results.

Excessive MMPA litigation impacted the reputation of Missouri’s civil justice system. For example, a Washington Post headline read, “A man is suing Hershey for ‘under-filling’ his box of Whoppers,” after a court denied a motion to dismiss an MMPA claim.[12] In that instance, the plaintiff admitted in a deposition that he had purchased the candy some 600 times over 10 years and was well aware of how much candy the boxes contained. A federal judge ultimately granted summary judgment for the chocolate maker, but only after two years of costly litigation.[13]

A few law firms that specialize in MMPA litigation filed most of these lawsuits,[14] often using template complaints. In some instances, the firms repeatedly relied on the same individual to serve as the representative plaintiff in lawsuits targeting different companies and products.[15]

Six significant changes to the MMPA

After six years of legislative efforts to bring the MMPA back in line with the statute’s original intention, Gov. Mike Parson signed SB 591 into law on July 1, 2020. This law has applied to all MMPA claims filed since Aug. 30, 2020.[16] The bill included long-sought amendments to the MMPA, as well as changes to Missouri punitive damages law that are beyond the scope of this article. There are six significant changes to the MMPA.

Adopting an objective and reasonable consumer standard

The 2020 amendments addressed the absence of a requirement in the MMPA that the allegedly deceptive practice targeted in a lawsuit would mislead a reasonable consumer. Missouri courts had generally recognized this principle, but it was never explicit.[17] In 2018, however, the Court of Appeals indicated that a reasonable consumer’s understanding of a term or whether a practice is unfair or deceptive is a question of fact that typically cannot be resolved any earlier than a motion for summary judgment.[18] Trial courts frequently cited that decision, Murphy v. Stonewall Kitchen, to deny motions to dismiss.[19] The inability to obtain dismissal at any early stage, the cost of prolonged litigation, and the intrusiveness of discovery pressured defendants to settle meritless MMPA claims.

As a result of the 2020 legislation, the MMPA now requires a plaintiff to prove that he or she acted “as a reasonable consumer would in light of all circumstances.”[20] Critically, the amendment empowers judges to “dismiss a claim as a matter of law where the claim fails to show a likelihood that the method, act, or practice alleged to be unlawful would mislead a reasonable consumer.”[21] This provision, which may be the most significant of the reforms, instructs courts to grant a motion to dismiss when it is objectively clear that no reasonable consumer would be misled by advertisement, label, or other practice targeted in the lawsuit. It gives courts the ability to reject absurd claims as well as those that are based on a technical regulatory compliance issue before businesses incur substantial litigation costs that pressure them into settlements. Courts elsewhere that have experienced a surge of consumer class actions – such as those alleging that consumers buy vanilla-flavored products expecting the flavor to derive solely from or predominantly by vanilla beans[22] or that “diet” sodas are weight-loss products[23] – have relied on the reasonable consumer doctrine to dismiss such claims.[24]

Requiring causation

Prior to the 2020 reforms, MMPA plaintiffs did not necessarily have to show they relied upon (or were even influenced by) an alleged misrepresentation.[25] Individuals who purchased a product might seek compensation even if they were unaware of the purportedly misleading statement or it played no part in their decision to purchase the product. The statute simply required the claim to be “in connection with” a sale or advertisement of merchandise.[26]

The MMPA now requires a plaintiff to show that the allegedly unfair business practice would “cause a reasonable person to enter into the transaction” that resulted in damages.[27] This language explicitly incorporates the element of causation into the MMPA, which, in appropriate circumstances, may require a consumer to show he or she relied on the targeted practice when deciding to purchase a product or service.

The new law also indicates that class representatives must establish both reasonableness and causation.[28] This provision advances the principle that a class member is not injured and has no grievance under the MMPA claim when that person “did not care” about the aspect of the product at issue or “knew about” the product’s features, but “purchased . . . [the] products anyway.”[29] In other words, it is not enough that a practice theoretically could have misled a consumer. The challenged practice must have actually led the plaintiff to purchase the product.[30]

Requiring definitive and objective evidence of damages

The 2020 amendments more closely define recoverable damages in MMPA claims beyond simply authorizing courts to award “actual damages.”[31] Plaintiffs must now establish “damages with sufficiently definitive and objective evidence to allow the loss to be calculated with a reasonable degree of certainty.”[32] This standard applies to class action representatives, while class members must “establish individual damages in a manner determined by the court.”[33] These changes to the statute are intended to reduce the use of creative theories to seek damages where consumers did not experience an actual loss. They also preclude courts from simply presuming that because a class representative experienced a loss, others who purchased the product are automatically entitled to recovery.

Requiring a reasonable relationship between the judgment and fees

The new law does not alter the availability of attorneys’ fees in MMPA class action litigation, but it requires the fees awarded to bear a “reasonable relationship” to the amount of the judgment (or, for equitable relief, to the time expended).[34] Prior to this legislation, prevailing plaintiffs’ lawyers could seek substantial amounts for fees in MMPA litigation alleging trivial claims or nominal losses.

The 2020 amendment is intended to ensure that fee awards to lawyers do not dwarf the money set aside for consumers who claim to have experienced a financial loss. It should also preclude court approval of class action settlements in which consumers are slated to receive worthless injunctive relief – such as minor labeling changes, added disclaimers, or commitments of quality control improvements – to justifying a fee award in the hundreds of thousands of dollars.

Prohibiting misuse of the MMPA in personal injury lawsuits

The 2020 law adds a provision to the MMPA that does not permit use of the consumer protection statute to recover damages for personal injury or death when a claim is available under Chapter 538, which governs medical malpractice litigation.[35] Consumer protection laws are intended to provide a remedy for financial losses that result from a consumer being misled when purchasing a product or service. They are not intended to provide a means to recover for physical injuries, which are addressed through tort law.[36] As discussed earlier, in some cases, however, personal injury complaints have included MMPA claims. This strategy may be used to attempt to circumvent traditional requirements for showing negligence, a product defect, or that a product caused a physical injury to avoid federal preemption when targeting the safety or labeling of a federally-approved product, or to seek attorney’s fees that are not otherwise recoverable.[37] The new law takes a step in addressing this use of the consumer protection law by unequivocally prohibiting the inclusion of MMPA claims in medical malpractice actions. Courts should apply the same principle in other personal injury and wrongful death cases.

Clarifying the statute of limitations

Finally, the new law clarifies when a claim accrues under the MMPA for purposes of applying the statute of limitations. Specifically, a cause of action accrues on the date of the purchase or lease that forms the basis of the MMPA claim, or when the plaintiff first receives notice of the allegedly unlawful practice.[38] This codifies a standard expressed in case law, providing consistency for all litigants.[39] It does not alter the amount of time plaintiffs have to file MMPA claims, which remains subject to the state’s generally applicable five-year statute of limitations.[40] It should, however, reduce attempts to stretch Missouri’s five-year statute of limitations in litigation involving consumer goods and services, which is already longer than the time provided by most state consumer protection laws.[41]

Effect of the 2020 amendments on litigation

These changes to the MMPA have applied to all cases filed on or after Aug. 28, 2020. Missouri courts and federal courts interpreting the law have issued few reported decisions in MMPA cases filed since that time. The initial indications suggest that some courts may not be aware of the amendments or, nevertheless, continue to apply pre-2020 case law when deciding motions to dismiss.

For example, in a complaint filed about two months after the 2020 amendments took effect, plaintiffs alleged that consumers were misled to believe that malt beverage products named “Margarita,” “Mojito,” “Sangria,” and “Rosé” contained tequila, rum, or wine. The U.S. District Court for the Western District of Missouri relied upon the 2016 Murphy v. Stonewall Kitchen holding that whether a reasonable consumer would be deceived by a product label is generally a question of fact that cannot be resolved on a motion to dismiss.[42] Nor did the federal court, in its May 2021 ruling, acknowledge the 2020 amendments when evaluating whether the plaintiff had adequately pled that the alleged misrepresentation was material to a reasonable consumer’s decision to purchase the product or that consumers experienced an ascertainable loss.[43]

Similarly, when the U.S. District Court for the Eastern District of Missouri declined to dismiss a claim alleging that the marketing of certain personal care products as “natural” violated the MMPA, its ruling did not refer to the 2020 amendments.[44] That complaint was filed three months after the amendments took effect. There, the court also relied upon Murphy’s now-repudiated holding.[45] The federal court did not require the complaint, which simply alleged the plaintiff paid a premium due to its natural labeling (even as she used a coupon for 40% off),[46] to indicate “damages with sufficiently definitive and objective evidence to allow the loss to be calculated with a reasonable degree of certainty,” as the 2020 amendments require.

An August 2021 ruling from the same federal court recognized the wording of the amended MMPA permitting a court to dismiss a claim on the basis that a reasonable consumer would not be misled as a matter of law while also quoting Murphy’s holding that whether a practice is unfair or deceptive is a question of fact.[47] In that instance, the court denied a motion to dismiss a claim alleging that hand sanitizing products had the ability to kill 99.99% of germs.

At least one court has applied the 2020 amendments to dismiss an MMPA claim that was tacked onto a malpractice lawsuit. That lawsuit stemmed from a custody modification proceeding in which a mother became dissatisfied with a court-appointed guardian ad litem, reunification therapist, and forensic psychologist involved in the custody case.[48] The trial court dismissed the claims because the 2020 amendments to the MMPA, which were in effect when the plaintiff filed her lawsuit, “specifically prohibit plaintiffs from using the MMPA as a vehicle to bring claims that should be filed under Missouri’s malpractice statute.”[49] The plaintiff also did “not allege that the Defendants’ unlawful practices caused her to enter into the transactions at issue,” failing to satisfy another element of the 2020 law.[50] “In fact,” the trial court observed, the plaintiff was “ordered by the Court to use the Defendants’ services.”[51] The Missouri Court of Appeals-Eastern District affirmed, holding that the mother’s failure to challenge the trial court’s finding that the 2020 amendments precluded her claim was fatal to her appeal.[52]

Conclusion

The 2020 legislation made key changes to the MMPA that are intended to ensure that the statute continues to protect consumers from deceptive practices while curbing elements of the law that facilitated and made it difficult to dismiss spurious claims. There are few court rulings applying the amended statute, possibly due to the pandemic or a tendency to settle claims before they reach a ruling. The limited decisions available suggest that courts have not yet fully recognized the significance of the changes. Until that occurs, Missouri may remain a hotbed for consumer class actions. 
 

 
Endnotes

[1] Jennifer Artman is a partner in Shook, Hardy & Bacon L.L.P. in Kansas City. Cary Silverman is a partner in the firm’s Washington, D.C.-based Public Policy Group. Both testified for the American Tort Reform Association in support of amendments to the MMPA during a multi-year effort toward enactment.

[2] Section 407.020, RSMo (2016).

[3] Ports Petroleum Co. of Ohio v. Nixon, 37 S.W.3d 237, 240 (Mo. banc 2001); see also Lane House Constr., Inc. v. Triplett, 533 S.W.3d 801 (Mo. App. E.D. 2017) (quoting same).

[4] Ports Petroleum, 37 S.W.3d at 240.

[5] See Joanna Shepherd, The Expanding Missouri Merchandizing Practices Act 13 (Am. Tort Reform Found. 2014). http://www.judicialhellholes.org/wp-content/uploads/2017/02/103114_MMPAreport.pdf.

[6] Id. at 12.

[7] See Cary Silverman, In Search of the Reasonable Consumer: When Courts Find Food Class Action Litigation Goes Too Far, 86 U. Cin. L. Rev. 1, 7 n.50 (2018) (compiling “natural” claims filed by St. Louis-based Armstrong Law Firm).

[8] See Silverman, 86 U. Cin. L. Rev. at 7 n.52 (documenting slack fill cases filed by Rolla, Missouri-based Steelman, Gaunt & Horsefield).

[9] See Mike Curley, Mike and Ike Slack-Fill Suit Dismissed After Deal Reached, Law360, Nov. 14, 2018 (discussing private individual settlement of White v. Just Born Inc., No. 2:17-cv-04025 (W.D. Mo.) after the court denied class certification).

[10] For example, in product liability actions, MMPA claims have alleged that a manufacturer generally marketed a product as safe and effective as an alternative to showing that a product is defective or to avoid the potential for federal preemption of state tort claims targeting FDA-approved product labeling or designs. See, e.g., Crocker v. Allergan USA, Inc., 4:18 CV 1288 DDN, 2018 WL 7635923 (E.D. Mo. Dec. 7, 2018), report and recommendation adopted, 4:18-CV-1288-SNLJ, 2019 WL 1242680 (E.D. Mo. Jan. 24, 2019) (remanding a case alleging issues with respect to use of a Lap-Band medical device, where allegations included negligent failure to warn, negligence, negligence per se, negligent misrepresentation, strict product liability, fraudulent concealment, and a violation of the MMPA); Moore v. Bayer Corp., 4:18 CV 262 CDP, 2018 WL 4144795 (E.D. Mo. Aug. 29, 2018) (dismissing a complaint alleging 14 claims of negligence, product liability, fraud, warranty, and violation of the MMPA, seeking recovery for personal injuries arising out of being prescribed and implanted with a permanent birth control, following a personal jurisdiction challenge); Zaccarello v. Medtronic, Inc., 38 F. Supp. 3d 1061, 1071-72 (W.D. Mo. 2014) (finding plaintiff’s manufacturing, design, failure to warn, and negligence per se claims related to medical device preempted, but allowing MMPA claim alleging manufacturer misrepresented or omitted facts in connection with the sale or advertisement of the device to proceed); Plubell v. Merck & Co., 289 S.W.3d 707, 714-15 (Mo. App. 2009) (affirming certification of class action brought under MMPA alleging manufacturer failed to disclose the risks of Vioxx without the need for plaintiffs to show individual reliance, causation, or loss).

[11] For instance, in Sherman v. Mo. Prof’ls Mutual Physician, 599 S.W.3d 207 (Mo. App. W.D. 2020), a plaintiff initially sued her doctor, his practice, and his wife for malpractice and general negligence after an infection developed following a cosmetic surgery. The court dismissed the malpractice claims after the plaintiff failed to file the required affidavit of merit. See id. at 210. The plaintiff then sought leave to amend the complaint to drop the malpractice claim and add an MMPA claim against the doctor and his wife, alleging that the doctor’s wife was misrepresented as a licensed medical professional, which led to a coverage dispute between the doctor and his insurer. See id. at 211, 216. The Court found coverage of the MMPA claim barred by the fraud exclusion to the policy and that the insurer had no duty to defend the doctor after dismissal of the medical malpractice claim. See id. at 216-17; see also Butala v. Curators of Univ. of Missouri, WD 82810, 2020 WL 1433401 (Mo. App. W.D. Mar. 24, 2020), transferred to Mo. S. Ct., 620 S.W.3d 89 (Mo. banc 2021) (noting MMPA claims by Mizzou BioJoint Center patients against both Curators of the University of Missouri and individual doctor defendants).

[12] Abha Bhattarai, A Man is Suing Hershey for ‘Under-Filling’ His Box of Whoppers, Wash. Post, May 25, 2017.

[13] Bratton v. Hershey Co., No. 2:16-CV-4322-C-NKL, 2018 WL 934899, at *1 (W.D. Mo. Feb. 16, 2018).

[14] See Silverman, 86 U. Cin. L. Rev. at 7.

[15] See id. at 9 (demonstrating the repeated use of Jason Allen, Erika Thornton, Lois Bryant, Julie George, and Tonya Kelly as class representatives for MMPA claims).

[16] Section 510.262, RSMo (2016).

[17] Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 310-11 (Mo. App. E.D. 2016) (reversing dismissal of claim alleging cupcake mix was not natural because it contained sodium acid pyrophosphate, a common leavening agent disclosed on the ingredient list).

[18] See id. at 312.

[19] See, e.g., Hawkins v. Nestle USA Inc., 309 F. Supp. 3d 696, 704 (E.D. Mo. 2018); White v. Just Born, Inc., 2017 WL 3130333, at *7 (W.D. Mo. July 21, 2017); Bratton v. The Hershey Co., 2017 WL 2126864, at *8 (W.D. Mo. May 16, 2017).

[20] Section 407.025(1)(2)(a), RSMo (2016).

[21] Section 407.025(1)(2), RSMo (2016).

[22] See, e.g., Barreto v. Westbrae Nat., Inc., 518 F. Supp. 3d 795, 804 (S.D.N.Y. 2021) (soymilk); Steele v. Wegmans Food Mkts., Inc., 472 F. Supp. 3d 47, 50 (S.D.N.Y. 2020) (ice cream); Cosgrove v. Blue Diamond  Growers, 2020 WL 7211218, at *4 (S.D.N.Y. Dec. 7, 2020) (almond milk); Pichardo v. Only What You Need, Inc., 2020 WL 6323775, at *5 (S.D.N.Y. Oct. 27, 2020) (protein beverage).

[23] See Geffner v. Coca-Cola Co., 928 F.3d 198, 200 (2d Cir. 2019); see also Excevarria v. Dr Pepper Snapple Group, Inc., 764 Fed. App’x 108 (2d Cir. 2019); Manuel v. Pepsi-Cola Co., 763 Fed. App’x 108 (2d Cir. 2019).

[24] See also Harris v. Mondelez Global LLC, 2020 WL 4336390, at *2-3 (E.D.N.Y. July 28, 2020) (reasonable consumers would not interpret Oreo cookies made with “real cocoa” as unprocessed cocoa); Troncoso v. TGI Friday’s Inc., 2020 WL 3051020, at *7 (S.D.N.Y. June 8, 2020) (reasonable consumers do not expect bags of TGI Friday’s Potato Skin snack chips to be similar in taste or substance to a restaurant appetizer); Critcher v. L’Oreal USA, Inc., 2019 WL 3066394, at *5 (S.D.N.Y. July 11, 2019), aff’d, 959 F.3d 31 (2d Cir. 2020) (reasonable consumers do not expect a pump on a cosmetics bottle to dispense every ounce of its contents); Fermin v. Pfizer Inc., 215 F. Supp. 3d 209, 212 (E.D.N.Y. 2016) (reasonable consumers are not led to believe that a bottle of Advil has more pills than indicated on the label based on the size of the container).

[25] See, e.g., Plubell, 289 S.W.3d at 714 (finding the MMPA does not require consumer reliance on an unlawful practice or that an unlawful practice caused a purchase).

[26] Section 407.020(1), RSMo (2016).

[27] Section § 407.025(1)(2)(b), RSMo (2016) (emphasis added).

[28] Section 407.025(5)(1), RSMo (2016) (requiring a class representative to act “as a reasonable consumer would in light of all circumstances” and that the practice would “cause a reasonable consumer to enter into the transaction that resulted in damages”).

[29] State ex rel Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 862 (Mo. banc. 2008) (finding lower court abused discretion in certifying class alleging that Coca-Cola’s marketing misled consumers to believe fountain Diet Coke has the same sweetener as bottled Diet Coke because the class “could include millions who were not injured and thus have no grievance” under the MMPA); see also White v. Just Born, Inc., 2018 WL 3748405, at *6 (W.D. Mo. Aug. 7, 2018) (applying Coca-Cola to deny class certification of slack fill claim targeting candy boxes because class would include members who knew how much space was in the box but continued to purchase the product).

[30] See Owen v. Gen. Motors Corp., 533 F.3d 913, 922 (8th Cir. 2008) (“[C]ausation is a necessary element of an MMPA claim.”).

[31] Section 407.025(1)(1), RSMo (2016).

[32] Section 407.025(1)(2)(c), RSMo (2016).

[33] Section 407.025(5)(3), RSMo (2016).

[34] Section 407.025(5)(3), RSMo (2016).

[35] Section 407.025(3), RSMo (2016).

[36] Craft v. Philip Morris Cos., Inc., 190 S.W.3d 368, 380 (Mo. App. E.D. 2005).

[37] See supra notes 9 and 10.

[38] Section 407.025(4), RSMo (2016).

[39] See, e.g., Ball v. Friese Const. Co., 348 S.W.3d 172, 179 (Mo. App. E.D. 2011).

[40] See Boulds v. Chase Auto Finance Corp., 266 S.W.3d 847 (Mo. App. E.D. 2008) (applying Mo. Rev. Stat. § 516.120).

[41] See Victor E. Schwartz & Cary Silverman, Common-Sense Construction of Consumer Protection Acts, 54 Kan. L. Rev. 1, 30 (2006) (finding most statutes of limitations are in the two to three-year range).

[42] Browning v. Anheuser-Busch, LLC, No. 20-cv-00889, 2021 WL 1940645, at *2 (W.D. Mo. May 13, 2021).

[43] See id. at *3-4.

[44] See Early v. Henry Thayer Co., No. 4:20-cv-01678, 2021 U.S. Dist. LEXIS 136746, *37-40 (E.D. Mo. July 22, 2021).

[45] Id. at 40.

[46] Id. at 41-42.

[47] Macormic v. Vi-Jon, LLC, No. 4:20-cv-1267, 2021 WL 6119166, at *6 (E.D. Mo. Aug. 6, 2021).

[48] Tolu v. Reid, 639 S.W.3d 504 (Mo. App. E.D. 2021).

[49] Id. at 515.

[50] Id. (emphasis added).

[51] Id.  

[52] Id. at 534-35. Even if the plaintiff was able to overcome this and other obstacles, the Eastern District found that the appointment of a GAL did not constitute “purchase” of services by the mother, “let alone for ‘personal, family or household purposes’ for purposes of asserting an MMPA claim.” Id. at 535.