August 13, 2010
The Missouri Merchandising Practices Act (MMPA) can be a powerful consumer protection statute. It states that the
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, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice. section 407.020 R.S.Mo.
Almost none of the important terms are defined by the statute. What is considered deceptive? What constitutes an unfair practice? Under Missouri law, if there is no definition, then we should use the ordinary meaning of the terms. In other words, if you can make a reasonable argument, using common sense, then perhaps you can use the statute.
The law requires only that “any material fact in connection with the sale or advertisement” of the product must be “in or from the state of Missouri” to have a cause of action. If the vehicle as purchased in Missouri, then clearly that is a material fact.
But if the vehicle was purchased in another state, perhaps the money can from Missouri, or the dealership advertised in Missouri, or some of the later repair attempts occurred in Missouri. As long as the vehicle “directly or indirectly affecting the people of this state,” then you might be able to use the MMPA.
The MMPA also only applies to vehicles that are used “primarily for personal, family or household purposes.” The federal lemon law, the Magnuson-Moss Warranty Act, uses similar language. There are many cases from many states that explain while automobiles are often used for both personal and commercial uses, they should nevertheless be considered a consumer product. Manufacturers, who make this argument, often for bigger trucks, rarely succeed in preventing a consumer’s claim.
There is one significant pitfall associated with the MMPA. “The court may, in its discretion, award punitive damages and may award to the prevailing party attorney’s fees.” Section 407.025 R.S.Mo. By using the words “prevailing party,” Missouri allows for the possibility of a manufacturer recovering its attorneys fees back from a consumer if a consumer loses an MMPA claim. In that situation, not only would a consumer not win any money from the manufacturer, but could end up actually owing the manufacturer money. The good news, though, is that if a consumer prevails and the jury awards money damages, then the judge can award additional money from the manufacturer to pay for the consumer’s attorney’s fees.
Even with a strong Missouri state lemow or federal lemon law case, it often makes sense to also argue that the manufacturer has violated the Missouri Merchandising Practices Act while additional facts are discovered.
August 12, 2010
Headlines are suggesting that the recall of millions of vehicles for unintended acceleration by Toyota may have been the result of “user error.” Yet, these articles actually explain that problems were found. Preliminary results did show pedals getting stuck behind floor mats and pedals getting stuck. While no widespeard electronic problem was found, that does not absolve Toyota of responsibility. Sticky pedals pose a serious safety risk, one which Toyota engineers knew of long ago. It is also reasonable for a consumer to expect that the pedals of a car would not get stuck because of floor mats, especially when Toyota designs and markets them to consumers. Some reported problems may have been caused by “driver error,” but it also appears that many incidents would not have happened but for Toyota’s inability to create a safe product. Investigation is still ongoing.
August 11, 2010
Not to be left out, Honda has announced a recall of its own, for the 2003 Honda Accord and the 2003-2004 Honda Element. Interesting, Honda has already had 2 recalls for the same problem, back in 2003 and 2005. Even if a 2003 vehicle no longer has a warranty, a recall means Honda should fix the problem without any out-of-pocket costs to the consumer.