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CHAPTER 28
MONTANA
A. Scope of the Statute and Elements of a Cause of Action
The Montana Unfair Trade Practices and Consumer Protection Act of
1973 (MUTPCPA)1 declares unlawful “[u]nfair methods of competition
and unfair or deceptive acts or practices in the conduct of any trade or
commerce.”2 It instructs courts that in construing that phrase, “due
consideration and weight” should be given to the Federal Trade
Commission’s (FTC) and federal courts’ constructions of section 5(a)(1)
of the FTC Act.3 But so long as the court identifies and applies the
governing standard, as discussed below, it need not expressly review or
cite federal law in resolving a dispute under the MUTPCPA.4
The Montana Supreme Court adopted what has come to be known as
the “S&H Standard” in defining an “unfair act or practice, based on an
FTC statement on unfairness.” 5 Noting that some states apply the S&H
Standard as a factors test, the court applied what it found to be the more
common approach, which defines an “unfair act or practice” as “one which
offends established public policy and which is either immoral, unethical,
oppressive, unscrupulous or substantially injurious to consumers.”6
1. MONT. CODE ANN. §§ 30-14-101 through 30-14-157.
2. Id. § 30-14-103.
(Mont. 1986) (“No interpretation of the Unfair Trade Practices and
Consumer Protection Act can be inconsistent with the rules, regulations
and decisions of the Federal Trade Commission Act.”).
4. Aiking-Taylor v. Serang, 2021 WL 1903337, at *4 (Mont. 2021).
unfairness definition described in the landmark decision FTC v. Sperry &
with approval the FTC’s use of the following criteria for determining
whether an act or practice was unfair: (1) whether the practice, without
necessarily having been previously considered unlawful, offends public
policy as it has been established by statutes, the common law, or otherwise
(i.e., wheth er, in other words, it is within at least the penumbra of some
common-law, statutory, or other established concept of unfairness); (2)
whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether
it causes substantial injury to consumers (or competitors or other
businesspersons). Sperry, 405 U.S. at 244 n.5.
