Outright reversal based on determination that Plaintiff had failed to make a submissible case under the MMPA because the alleged misrepresentations were not actionable statements of fact but were merely inactionable puffery. Citing to the Eighth Circuit, "if a statement is not specific and measurable, and cannot be reasonably interpreted as providing a benchmark by which the veracity of the statement can be ascertained, the statement constitutes puffery."
When certain Infiniti FX vehicles developed dashboard bubbling, Robert Hurst, on behalf of himself and others similarly situated, filed a second amended petition seeking damages under the Missouri Merchandising Practices Act (MMPA) and seeking certification of a class action lawsuit against Nissan North America, Inc. (Nissan). Hurst claimed that Nissan violated the MMPA by making representations regarding the Infiniti FX vehicle that were not in accord with the facts regarding the quality of the vehicle or by making representations regarding the Infiniti FX that tended to create a false impression regarding the quality of the vehicle. The circuit court certified the class and held a jury trial. Nissan appeals from the circuit court's judgment awarding $2000 in damages to each class plaintiff and $1,819,785 in attorney's fees. Although Nissan asserts numerous points on appeal, its first point is dispositive. Nissan contends that the circuit court erred in denying its motions for directed verdict and JNOV because Hurst failed to make a submissible case under the MMPA in that the alleged misrepresentations were not actionable statements of fact but were merely inactionable puffery.
Reversed and remanded
Division Three holds:
The circuit court erred in denying Nissan's motion for judgment notwithstanding the verdict because Hurst failed to show that Nissan made an actionable misrepresentation in connection with the FX's advertising. The statements relied upon by plaintiff were not actionable statements of fact as required by the MMPA. As to attorney's fees, the MMPA authorizes attorney's fees to the prevailing party. Because Hurst and the class he represents are no longer the prevailing party, attorney's fees are no longer authorized.