Monthly Archives: September 2013

Potential MMPA Claim Against a Public Corporation — Dunn v. Board of Curators

Though justice is supposed to be blind, perhaps it requires particular efforts to take up the charge against those the legislature has termed “heroes”.  We shall see if those in that camp are up to it.

Here we have a discussion of an interesting issue of whether the MMPA extends to–whether the defined term “person” includes–a particular “public corporation” (see State v. Long, 213 S.W. 436 (Mo. 1919) (“We judicially notice, however, that the corporation by which the University of Missouri is controlled is styled “the curators of the University of Missouri.” We notice this because such corporation is a public one, created by a public statute (section 11097, R. S. 1909), of which, and of all such statutes, we are required to take judicial notice.”).

The brief notes:

Plaintiffs have alleged that Defendants violated the Missouri Merchandising Practices Act (“MMPA”) by misrepresenting the meaning and purpose of the Missouri Heroes’ Act by misapplying Plaintiffs’ money and “gift aid” funds.

Something of an awkward circumstance, to be sure.

The brief, in the case styled Dunn v. Board of Curators of University of Missouri, available at 2013 WL 3191817 (Mo.App. E.D.), also raises interesting issues of sovereign immunity.  A recent Pennsylvania case, Meyer v. Community College of Beaver County, 30 A.3d 587 (Commonwealth Ct. of Pa. 2011), appeal granted in part by Meyer v. Community College of Beaver County, 51 A.3d 177 (Pa. 2012), also examines whether a state consumer protection claim sounds in tort or contract.  Here’s part of what it had to say:

Moreover, we conclude that these averments sound in contract rather than tort. Clearly, the averments relate to the sale of educational services. Under these averments, the protection of bargained-for expectations is implicated.

Further, Plaintiffs brought an action under Section 9.2 of the CPL. As discussed elsewhere, such an action may be brought by a person “who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss….” 73 P.S. § 201–9.2. Thus, an action under Section 9.2 of the CPL must be transaction based. For this additional reason, we conclude Plaintiffs’ action under the CPL sounds in contract.

30 A.3d at at 599.  Of course, the MMPA allows enhanced remedies, including punitive damages.  A facile way to distinguish contract and tort is to focus on the availability of something beyond expectation damages.  But not so fast.

More after the break …

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The Wheels Come Off This Attempt to Defend an MMPA Claim—Jackson v. Hazelrigg Automotive Service, Inc., 2013 WL 3191829 (Mo. Ct. App. S.D.)

At some time, Missouri courts will clarify whether the following words, split infinitive and all, mean what they say:

“(1) It is an unfair practice … to unilaterally breach unambiguous provisions of consumer contracts….”

15 CSR 60-8.070.  One hopes they do.

If one thinks businesses’ performance of consumer contracts is characterized by an overabundance of diligence—and that the law should encourage more inadequate and defective performance—one would seek to construe non-literally the words of this rule.  Taking-up the standard is a car repair facility in Jackson v. Hazelrigg Automotive Service, Inc., 2013 WL 3191829 (Mo. Ct. App. S.D.).

Lender Gone Wild–Cacioppo v. Citibank, N.A., 2013 WL 3283923 (Mo. Ct. App., W.D.)

So a bank allegedly gets an application for a business credit card over the phone.  It allegedly does not receive a paper application. A business record, attached to the brief, notes a $30,000 credit limit.

So, what’s the basis for extending the credit?  What was the due diligence in extending the credit?  The mother’s maiden name of the individual allegedly responsible for the application, as reproduced on a document identified as a business record of the lender and attached to the appeal, is “RADIOACTIVEX” (allegedly with some attempt by the lender to justify this as potentially a password).  The brief further reports “[n]either the social security number nor the date of birth listed were linked with [the putative borrower] in the testimony.”