Have you been involved in a consumer transaction but believe you were the victim of fraud or deceptive business practice? Both the Kansas Consumer Protection Act (KCPA), K.S.A. §§ 50-623 to 50-679a, and the Missouri Merchandising Practices Act (MMPA), R.S.Mo. §§ 407.010 to 407.943, protect consumers who are victims of fraud and/or deceptive business practices.
Types of Consumer Fraud in KS & MO
You may have the right to obtain monetary compensation through a consumer protection claim if you have suffered a financial loss from (among others):
- Home repair fraud
- False representations concerning the value of goods sold to a consumer
- Insurance fraud
- False statements concerning “sale” prices
- False representations by a contractor that defective work will be repaired
- Billing customers for goods or services they did not receive
- Predatory collection practices
- Misrepresentations that a food was “all natural” when it contained non-natural ingredients
- Misrepresentations and omissions regarding the safety risks of a drug
- Many other deceptions
By the 1970s, every state in America had enacted some version of consumer protection laws based on the Federal Trade Commission Act. The key provision of the FTC Act states: “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.” See 15 U.S.C. § 45(a)(1). The FTC actually encouraged the enactment of state consumer protection laws because they lacked the resources to fully carry out its consumer protection responsibilities throughout the nation.
Both the KCPA and MMPA broadly prohibit deceptive or unfair acts and practices in the marketplace for consumer goods and services. Both statutes establish private causes of action for damages and equitable relief, permit punitive damages, and permit the recovery of attorneys’ fees to the prevailing party. Further, consumer fraud cases may be tried on an individual basis of as a class action.
The Missouri Merchandising Practices Act
The MMPA broadly prohibits false, fraudulent, or deceptive merchandising practices and acts as a supplement to common law fraud or breach of warranty actions. In addition, the Missouri attorney general has broad power to prosecute actions to enforce the statute. The MMPA was enacted in 1967. The following four elements are needed for a violation of the MMPA:
- There must be a use or employment of:
- false pretense
- false promise
- unfair practice
- concealment, suppression, or omission of a material fact
- The unlawful act must occur in connection with the sale or advertisement of any merchandise in trade or commerce.
- The unlawful act must result in an ascertainable loss of money or real or personal property.
- The loss must occur to a person who purchases or leases merchandise primarily for personal, family, or household purposes.
The prohibitions of § 407.020 are construed broadly to reach any deception or unfair practice, including the concealment of facts. The plaintiff must establish that the purpose of the goods or services purchased or leased was “primarily for personal, family or household purposes.” The plaintiff is not obliged to prove reliance as an element of the claim but there is an exception to the rule when the claim of misrepresentation is based on the omission of information. Deceptive practices are not defined in the statute, and the courts are left to determine what constitutes a deceptive practice on a case-by-case basis. You must bring your private action for damages under the MMPA within five years in Missouri.
The Kansas Consumer Protection Act
The KCPA was enacted in 1973 and is significantly more complex and technical than the MMPA. This is because the KCPA has been substantively amended several times since 1973 and case law references various sections that have since changed. The two most important section of the KCPA are the “Deceptive Acts and Practices” section which states “[n]o supplier shall engage in any deceptive act or practice in connection with a consumer transaction and “Unconscionable Acts and Practices” section which states “[n]o supplier shall engage in any unconscionable act or practice in connection with a consumer transaction. An unconscionable act or practice violates this act whether it occurs before, during or after the transaction.” The KCPA goes on to provide a lengthy, non-exclusive list of acts and practices that are per se deceptive or unconscionable.
To establish a KCPA claim, a plaintiff must show:
- Plaintiff was a consumer
- Defendant was a supplier
- Defendant engaged in a deceptive or unconscionable act in a consumer transaction
- Plaintiff was “aggrieved” by defendant’s act or practice as set forth in K.S.A. § 50-634(a)
Unlike the MMPA, to make a KCPA claim, the Kansas Supreme Court has held that a plaintiff is required to show a causal connection between the defendant’s conduct and the plaintiff’s loss. Also, to state a claim under the KCPA, a plaintiff actually must have contracted with a supplier for goods or services. The plaintiff must establish that the purpose of the property or services he or she sought was for “personal, family, household, business or agricultural purposes.” The KCPA is thus broader than the MMPA in this regard because it expressly includes property or services for “business” purposes. The KCPA does not contain a special statute of limitations, and thus, Kansas’ three-year statute of limitations in K.S.A. § 60-512(2) applies. But unlike the MMPA, for a KCPA action, the statute of limitations period begins to run when the alleged violation occurred, not when the violation was discovered.