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Prevailing Party Attorney Fees in the Merchandising Practices Act (“MPA”)

The MPA is an extraordinarily broad statute intended to protect consumers. It  loosens the rigid requirements for traditional common law fraud, negligent misrepresentation, product liability claims, etc. To further its objectives, the MPA statutorily authorizes reasonable attorney fees to a “prevailing party” in MPA litigation.

“Missouri has adopted the American Rule; that is, absent statutory authorization or contractual agreement, with few exceptions, each litigant must bear his own attorney’s fee.” David Ranken, Jr. Technical Inst. v. Boykins, 816 S.W.2d 189, 193 (Mo. 1991). The “exceptions” are limited to those cases involving “very unusual circumstances” or to cases “where the natural and proximate result of a breach of duty is to involve the wronged party in collateral litigation.” Id. Notwithstanding these exceptions, Courts are still often reluctant to award attorney fees.

The specific language authorizing attorney fees in the MPA states: The court may, in its discretion, award punitive damages and may award to the prevailing party attorney’s fees, based on the amount of time reasonably expended. Section 407.025, RSMo.  Assuming the Court, in its sole discretion, decides to award attorney fees, Missouri law articulates a number of factors to consider in determining the amount of the attorney fees: 1) the rates customarily charged by the attorneys involved in the case and by other attorneys in the community for similar services; 2) the number of hours reasonably expended on the litigation; 3) the nature and character of the services rendered; 4) the degree of professional ability required; 5) the nature and importance of the subject matter; 6) the amount involved or the result obtained; and 7) the vigor of the opposition. Berry v. Volkswagen Grp. of Am., Inc. SC92770 (Mo. 2013).

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