FOR IMMEDIATE RELEASE: MARCH 8, 2018
Contact: Heartland Center for Jobs and Freedom: Gina Chiala ([email protected]) or (816) 278-1092; Bell Law LLC: Bryce Bell ([email protected]) or (816) 886-8206; National Consumer Law Center: Carolyn Carter ([email protected]) or Stephen Rouzer ([email protected]) or (202) 595-7847
Download the full report, a state-by-state chart comparison, 14 comparative maps, capsule summaries of each state and the District of Columbia laws, and summaries of each jurisdiction’s statutes at: http://bit.ly/2DJKbGp
National Consumer Law Center Survey Finds Weaknesses in Missouri’s UDAP Law as Missouri Law Makers Attempt to Effectively Repeal the Act
KANSAS CITY– State Unfair and Deceptive Acts and Practices (UDAP) laws prohibit deceptive practices in consumer transactions, such as sales of cars, new homes, and other goods, loans, home improvements, utility contracts, and mortgage transactions. A new report from the National Consumer Law Center (NCLC) finds that strengths of Missouri’s UDAP statute – commonly known as the Merchandising Practices Act (“MPA”) include broad prohibitions of unfair and deceptive acts, and authority for the attorney general to adopt regulations addressing specific practices. However, it has a number of weaknesses:
- Gaps in the coverage of insurance companies, lenders, and other creditors
- The low civil penalty (just $1000—lower than all but five other states) that the attorney general can seek for violations
- A restriction that only a consumer who has “lost money or property” can enforce the statute, so consumers who have suffered an intangible injury such as invasion of privacy or who seek injunctive relief to prevent threatened harm are left out.
“Having a strong consumer protection statute in Missouri ensures that businesses treat hard-working Missourians fairly and honestly. Without the Merchandising Practices Act, consumers would be subjected to a host of dishonest and deceptive business practices without recourse”, said Gina Chiala, Executive Director for the Heartland Center for Jobs & Freedom, a non-profit organization that advocates on behalf of low-wage workers, consumers, and tenants.
“Unfortunately, and despite some significant weaknesses, the Missouri legislature has several bills on the table (SB 832 and HB 2089) that would totally gut the protections afforded to Missourians under the Merchandising Practices Act. Now, more than ever, Missourians need strong laws to help deter wrongdoing. This is not the time to be taking away our citizens rights”, added Bryce Bell, of Bell Law, LLC, a consumer rights law firm based in Kansas City, Missouri.
“Take veteran Ernie Roberts. He’s a small business owner, a member of the National Guard and works hard to provide for his wife and four children. He purchased a motorcycle at a local dealership and was saddled with payments nearly double what he bargained for. Without a strong Merchandising Practices Act, he would not be able to hold the dealership responsible”, continued Chiala. “For Missourians like Ernie, the Merchandising Practices Act is the only effective way he’s able to achieve fairness.”
“I don’t want to operate in a state…where law and order take a back seat”, Roberts was quoted in the KC Star on Thursday, March 8, 2018.
“What does it say to the citizens of Missouri when the lawmakers decide to take away rights that have been here since 1967? Instead of strengthening the laws of Missouri and ensuring a fair marketplace for all Missourians, we are now talking about a complete disintegration of consumer rights in the State of Missouri. It’s outrageous”, concluded Bell.
“Unfair and Deceptive Acts and Practices laws should be the backbone of consumer protection in every state, but significant gaps or weaknesses in almost all states undermine the promise of these vital protections so the deck is stacked against consumers,” said Carolyn Carter, National Consumer Law Center Deputy Director and author of Consumer Protection in the States: A 50-State Evaluation of Unfair and Deceptive Practices Laws.
Key Recommendations
States that want to strengthen their protections for consumers should:
Strengthen their UDAP statute’s substantive prohibitions by:
Making sure that the statute includes broad prohibitions of deceptive and unfair acts that consumers can enforce.
Strengthen their UDAP statute’s scope by:
- Narrowing or deleting any exclusion for regulated industries, so that is clear that the mere fact of regulation is not a license to engage in unfair and deceptive practices.
- Eliminating exemptions for lenders, other creditors, insurers, and utility companies.
- Making it clear that the statute applies to real estate transactions and to post-transaction matters such as abusive collection of consumer debts.
Strengthen the state’s ability to enforce the statute by:
- Deleting any requirement that knowledge or intent be proven as an element of a UDAP violation.
- Increasing the size of the civil penalty and making sure that it is applicable per violation.
- Allowing courts to order a business to pay the state’s attorney fees and costs when the state prevails in a UDAP case.
- Providing adequate funding for the consumer protection activities of the state agency.
Strengthen consumers’ access to justice by:
- Removing any gaps in consumers’ ability to enforce the statute.
- Making it clear that courts can order a business to pay a consumer’s attorney fees, and that the consumer cannot be held responsible for the business’s attorney fees if the case was filed in good faith.
- Removing any restrictions on UDAP class actions, so that they are governed by the state’s usual rules (or by the federal rules if the case is led in federal court).
- Deleting any special barriers imposed on consumers before they can invoke a statute’s remedies, such as a special advance notice requirement, a requirement that a consumer who has been cheated prove that the business cheats consumers as a general rule, or a rule that denies consumers who have suffered an invasion of privacy or some other non-monetary injury the ability to enforce the statute.
- Amending the statute to make it clear that courts can presume that consumers relied on material misrepresentations, without requiring individual proof.
- Allowing consumers to seek enhanced damages or punitive damages in appropriate cases.
Even if a UDAP statute is already free from these weaknesses, it can often be improved by, for example, making attorney fee awards to consumers mandatory, so that if they prevail they are assured of being made whole, and making it clear that the heightened requirements of common law fraud and rigid contract law rules are not applicable to UDAP claims.
A full list of recommendations is available at http://bit.ly/2DJKbGp.
For more on NCLC’s body of work on unfair and deceptive practices, please visit: https://www.nclc.org/issues/unfair-a-deceptive-acts-a-practices.html. Subscription information for NCLC’s Unfair and Deceptive Acts and Practices, and free access to Chapter One of all of the legal treatises in NCLC’s Consumer Credit and Sales Legal Practices Series, is available at http://www.nclc.org/library.
The Heartland Center for Jobs and Freedom is a nonprofit organization that educates low-wage workers on their consumer, employment and housing rights and provides representation to low-wage workers who face abuse.
Bell Law, LLC is dedicated to protecting consumers against businesses that rip off consumers, and to the fair, equitable treatment of its clients. https://bell-law-kc.com/
Since 1969, the nonprofit National Consumer Law Center® (NCLC®) has worked for consumer justice and economic security for low-income and other disadvantaged people, including older adults, in the U.S. through its expertise in policy analysis and advocacy, publications, litigation, expert witness services, and training.
