USA – MISSOURI Trends and Developments Contributed by: Mark Williams and Stefanie Brody, Sandberg, Phoenix & von Gontard, P.C.
• that the plaintiff acted as a reasonable consumer in light of all circumstances; • that the unlawful method, act or practice would cause a reasonable person to enter into the trans - action that resulted in damages; and • that there are individual damages with “sufficiently definitive and objective evidence to allow the loss to be calculated with a reasonable degree of cer - tainty”. The first hurdle may result in dismissal early on at the pleading stage. Whether an alleged practice is likely to mislead a reasonable consumer is distinct from the heightened pleading standard for fraud claims, but it imposes a meaningful threshold that privacy plain - tiffs must clear before reaching discovery or damages questions. This last requirement – the “ascertainable loss” stand - ard – is the central obstacle for privacy plaintiffs. Mis - souri courts have strictly applied this standard to require concrete, quantifiable evidence of monetary loss. The implications for privacy cases are significant. Tra - ditional privacy harms – such as lost time, anxiety, reputational risk, or the abstract diminution in the val - ue of personal data – are inherently difficult to reduce to a dollar figure. A plaintiff whose browsing data was secretly shared with an advertising platform may feel genuinely violated, but that may not easily translate to provable loss under the MMPA. Missouri courts have recognised the “benefit-of-the- bargain” rule as a viable damages theory in MMPA cases. Under this approach, damages are measured as the difference between the actual value of the prop - erty and its value as represented. In theory, a plaintiff could argue that a service promising data confidenti - ality was worth less than what was paid because the provider was secretly sharing data with third parties. However, this theory remains untested. Taken together, the reasonable consumer and ascer - tainable loss requirements create formidable obsta - cles for establishing privacy harm under the MMPA. No Missouri court has yet sustained a private MMPA
claim arising from unauthorised data sharing, data breach or similar conduct. In Kuhns v Scottrade, Inc. , 868 F.3d 711 (8th Cir. 2017), the Eighth Circuit affirmed the dismissal of MMPA claims brought by customers alleging that a broker - age firm failed to implement adequate data security measures and failed to discover and promptly notify customers of a data breach. The court noted that the MMPA requires the alleged unlawful act to occur in relation to a sale of merchandise and that it result in identifiable financial harm connected to the merchan - dising practice. The claims did not meet these require - ments because the defendant did not sell data securi - ty services, but rather implemented security measures inducing customers to transfer their personal informa - tion in order to obtain its brokerage services. The deci - sion underscores that businesses facing data breach litigation in Missouri may have viable defences under the MMPA’s merchandise and loss requirements, but it also highlights the importance of ensuring that repre - sentations about data security practices are accurate and not misleading. As matters currently stand, the Missouri Attorney General – who faces none of the damages, pleading or standing constraints that burden private litigants – has been the primary enforcer of the MMPA in the data privacy space. Missouri’s Wiretapping Law and the Online Tracking Frontier Missouri is a one-party consent state as regards its wiretapping and electronic surveillance laws, Sec - tion 542.400 et seq of the Missouri Revised Statutes. This stands in contrast to “two-party” or “all-party” consent jurisdictions such as California and Florida, where all participants must consent for a recording to be lawful. The one-party consent framework means that, in most circumstances, businesses recording customer service calls or other communications face a less onerous legal standard in Missouri than they would in an all-party consent jurisdiction. However, Missouri’s one-party consent rule comes with an important caveat. Under Missouri’s wiretap - ping statute, it is lawful for one party to a communica - tion to intercept that communication only where the
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