Category Archives MMPA

Hutsler stands for the proposition that a significant lapse of time between (1) advertising and sale of merchandise and (2) an alleged unfair practice will make it difficult for a plaintiff to satisfy the statutory requirement that latter be “in connection with” the former. In 2001, plaintiffs refinanced their home with Wells Fargo. Eleven years passed. In 2012, due to financial difficulty, plaintiffs couldn't make their payments.  Well Fargo foreclosed on plaintiffs' home. Plaintiffs sued, claiming that Wells Fargo violated the MMPA “in connection with the sale of the property and/or mortgage loan” based on the way Wells Fargo handled the 2012 foreclosure (e.g., failing to provide plaintiffs with loss mitigation opportunities, foreclosing on plaintiffs' home without explanation as to why they did not qualify for mortgage assistance; and making plaintiffs wait before answering their telephone calls, and transferring plaintiffs' calls). Wells Fargo moved to dismiss the MMPA claim, arguing…

She needed new tires.  So she went to a Bridgestone tire shop. She was charged a “shop supplies fee” of $1.20, which appeared on the itemized initial estimate, as well as the final invoice. A sign posted in the store explained the purpose of this "shop supplies fee": TO OUR CUSTOMERS: A variety of shop supplies are consumed in servicing our customer's vehicles. Parts and labor necessary for servicing customer's vehicles are itemized on estimates and invoices. However, shop supplies (such as protective items for your vehicle, solvents, cleaners, rags, etc.) do not lend themselves to precise itemization. Therefore, on invoices greater than $30, an additional charge of 6% of the total labor amount, not to exceed $25 will be added to your invoice. This charge represents costs and profits.  Non-mandated disposal or recycling charges may also represent costs and profits. A lawsuit ensued.  Plaintiff sought certification of a class…

In Morgan v. Saint Luke’s Hospital of Kansas City, 403 S.W. 3d 115 (June 28, 2013), the Missouri Court of Appeals addressed this issue of first impression and reversed the trial court’s grant of judgment on the pleadings, holding that St. Luke’s was not entitled as a matter of law under Section 430.230 to assert a lien on the patient’s claim against a third party tortfeasor where the patient’s insurer had already paid the patient’s bill pursuant to its discounted payment agreement with the hospital.  In this case, the plaintiff had been the victim of a motor vehicle accident, had been treated at St. Luke’s, and her insurer had then paid her discounted bill according to a discounted payment agreement between St. Luke’s and the insurer. St. Luke’s then returned the discounted payment to the insurer, and then filed a lien for 100% of its billed charges on Ms. Morgan’s claim against…

She needed a tiller.  So she went to Home Depot and rented one. The rental contract had a damage-waiver provision, which stated: If I pay the damage waiver charge for any Equipment, this agreement shall be modified to relieve me of liability for accidental damage to it, but not for any losses or damage due to theft, burglary, misuse or abuse, theft by conversion, intentional damages, disappearances or any loss due to my failure to care properly for such Equipment in a prudent manner (including without limitation by using proper fuel, oil and lubricants and not exceeding such Equipment's rated capacity, if applicable). She signed the contract.  She initialed the "I have read and agree" box. On the way home, she read the contract more carefully and noticed the $2.50 charge for the damage waiver.  The next day, she returned the tiller and paid the bill without asking that the…

“An ascertainable loss of money or property” is an essential element of a cause of action brought under the Missouri Merchandising Practices Act. But what if something is free and doesn't perform as advertised? In Grawitch v. Charter Communications, Inc., 2013 WL 253534 (E.D. Mo. Jan. 23, 2013), an internet-service provider offered its existing customers a free upgrade: faster internet service ("with download speeds of up to 30 MBPS") at no additional charge.  But to enjoy the faster internet service, customers would need to upgrade their modems (available only from the ISP).  According to plaintiffs, those upgraded modems weren't capable of download speeds of up to 30 MBPS. Plaintiffs brought a class action under the MMPA, alleging a loss of money to Plaintiffs: “specifically, the difference in the cost and value of the service they paid for, and the useable service they received.” Is that an "ascertainable loss" under the…

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