Bessie Bishop bought her 10-year-old Taurus in 2014 at a CarHop lot in St. Louis County. The salesman called it a “good car.” She agreed to pay $8,200, signing a note at 20 percent interest.
Later, she took it in for an oil change. The mechanic got a surprise when he looked underneath.
“There was no floor in the car. There were big holes where it all rusted out,” she said.
The passenger side footwell consisted of nothing but carpet and padding. Underneath was only air. Other parts were also rusted away.
A car with no floor is too dangerous to drive, and Bishop, of Woodson Terrace, was still on the hook for the debt.
“I had to keep driving. I needed to go to work,” said Bishop, who still works at Kmart at age 74.
Rob Swearingen, an attorney with Legal Services of Eastern Missouri, filed suit against Interstate Auto Group, parent of CarHop. He settled the case for $7,500, and Bishop’s debt was erased.
“That helped a lot,” said Bishop, who is now driving another car.
Swearingen sued under the Missouri Merchandising Practices Act, a half-century-old law that prohibits deceptive and unfair practices in business. That law now faces a likely defanging at the hands of the Missouri Legislature.
A Senate committee approved a bill with big changes, and it is now awaiting a vote of the Senate.
“It’s looking like it’s going to sail right through,” said Cara Spencer, executive director of the Consumers Council of Missouri and a St. Louis alderman.
The bill is sponsored by Sen. Ron Richard, R-Joplin, the speaker pro tem of the Senate.
The change would exempt auto dealers, payday and title lenders, finance companies, cable and phone companies and a host of other businesses from being sued for violating the act.
Any company regulated by any government agency would be exempt from the law. Consumers couldn’t use the act to sue for anything that happens after a sale closes, such as a wrongful car repossession, consumer lawyers say.
Those lawyers are blowing things out of proportion, says Brian Bunten, general counsel for the Missouri Chamber of Commerce. Consumers could still sue all those businesses, he said. They’d simply have to use other laws governing those industries. “This bill does not preclude making claims against an auto dealer,” Bunten said.
But consumer lawyers say it’s easier to win under the Merchandising Practices Act. They could still sue for fraud, they note, but fraud is harder to prove than “false promise, misrepresentation” or “unfair practices” covered by the act.
“I use the Merchandising Practices Act all the time to protect consumers in used car sales,” Swearingen said.
It’s also easier for lawyers to get themselves paid under the Merchandising Practices Act. The act currently makes the errant company pay the consumer’s lawyer’s fee if the consumer wins the case, tempting lawyers to take them on. That’s not available under other laws.
Consumers usually can’t afford to pay lawyers by the hour. When lots of money is at stake, lawyers will agree to take a third of what they collect as payment. But the stakes in consumer cases are too small to make that attractive. Swearingen says a typical recovery in a used car case might be $5,000 to $10,000.
“The only incentive for attorneys like me to take these cases is if we can collect attorney fees,” said St. Louis lawyer Mitch Stoddard, who sues car dealers. If the law is changed, he said he may give up and move back to his native Canada. “I know a number of car dealers who would be glad to see me go,” he said.
Proponents of change say lawyers such as Stoddard have overplayed their hands. They are stretching the statute to cover things it shouldn’t, said Heidi Kolkmeyer, legislative director for the Senate’s Republican majority caucus. “It has gotten so broad and easy to litigate under,” she complained.
Class-action lawsuits are the biggest worry, she said, and some are ridiculous. Bunten cites a Kansas City class-action suit that complains that people who buy high-grade gasoline sometimes get a little low-grade gasoline left in the pump hose from the previous customer.
“We see a lot of frivolous litigation where the hurdle to succeed in the courtroom is pretty low,” Bunten said.
Class-action cases accuse companies of doing a little bit of harm to hundreds or thousands of people. Although each consumer might get only a small recovery, fees for lawyers frequently run in the millions of dollars.
The bill would make consumer class actions much harder to win. Each person would have to prove that they acted because of a deceptive statement and prove how much they lost. “With 100 people in the class, you’d have 100 trials,” said Dave Angle, a lawyer who files consumer suits in Columbia. “It essentially makes class actions a nonstarter.”
Bunten said most people would get by with filling out a form.
Kolkmeyer complains that the number of consumer cases is mushrooming. She cited a study by the Searle Civil Justice Institute, which reported 75 consumer protection cases filed in Missouri in 2013, a 15 percent increase over the previous year. Her opponents say the most cases ever filed under the Merchandising Practices Act was 53 filed in 2010.
Those numbers don’t include the number of threatening letters from lawyers, says Bunten. The threat alone prompts business owners to “cut a check and be done with it,” he said.
Don Griffin, a spokesman for CarHop, said he “doesn’t necessarily agree” with the description contained in Bessie Bishop’s lawsuit. He noted that the company offers an 18,000-mile warranty on used cars and a seven-day money-back return policy. “We do stand behind our product,” he said.