“Under Washington’s [Consumer Protection Act (CPA)], ‘[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce’ are unlawful.” Shields v. Morgan Fin., Inc., 130 Wn. App. 750, 755, 125 P.3d 164 (Div. 1 2005) (quoting RCW 19.86.020). “A claim under the Washington CPA may be predicated upon a per se violation of statute, an act or practice that has the capacity to deceive substantial portions of the public, or an unfair or deceptive act or practice not regulated by statute but in violation of public interest.” Young v. Toyota Motor Sales, U.S.A., 9 Wn.App.2d 26, 35, 442 P.3d 5 (Div. 3 2019), aff’d, 196 Wn.2d 310, 472 P.3d 990 (2020) (quoting Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 787, 295 P.3d 1179 (2013)).

“A defendant’s act or practice is per se unfair or deceptive if the plaintiff shows that it violates a statute declaring the conduct to be an unfair or deceptive act or practice in trade or commerce.”  Rush v. Blackburn, 190 Wn. App. 945, 961–62, 361 P.3d 217 (Div. 1 2015) (citing Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 786, 719 P.2d 531 (1986); Klem, 176 Wn.2d at 785-87).  Examples of statutes declaring conduct to be unfair for the purpose of the CPA involve the regulation of charitable organizations: RCW 19.09.340; camping clubs: RCW 19.105.500; email marketing: RCW 19.190.040; chain distribution schemes: RCW 19.102.020; business opportunities: RCW 19.110.170; debt adjustment: RCW 18.28.185; embalmers: RCW 18.39.350; land development: RCW 58.19.270; consumer leases: RCW 63.10.050; time-share offerings: RCW 64.36.170; and auctioneers: RCW 18.11.260.

If an act is not established as a per se violation of the CPA in statute, it is more difficult to prove because a plaintiff must show: (1) an unfair or deceptive act or practice on the part of the defendant had the capacity to deceive a substantial portion of the public, (2) that the defendant committed such an act in the conduct or trade of commerce, (3) that the acts complained of affect the public interest, (4) that the plaintiff was injured, (5) by such a violation of the Consumer Protection Act. Hangman Ridge, 105 Wn.2d at 785-93. “The definition of ‘unfair’ and ‘deceptive’ must be objective to prevent every consumer complaint from becoming a triable violation of the act.” Behnke v. Ahrens, 172 Wn. App. 281, 293, 294 P.3d 729 (Div. 1 2012). To that end, the Washington Supreme Court has held that a practice is unfair or deceptive under the CPA where it is likely to mislead a “reasonable” or “ordinary” consumer. Panag v. Farmers Ins. Co., 166 Wn.2d 27, 50, 204 P.3d 885 (2009) (citing Sw. Sunsites, Inc. v. Fed. Trade Comm’n, 785 F.2d 1431, 1435 (9th Cir.1986)). The factors relevant to whether an allegedly deceptive act sufficiently affected a public interest are:

(1) Were the alleged acts committed in the course of defendant’s business? (2) Are the acts part of a pattern or generalized course of conduct? (3) Were repeated acts committed prior to the act involving plaintiff? (4) Is there a real and substantial potential for repetition of defendant’s conduct after the act involving plaintiff? (5) If the act complained of involved a single transaction, were many consumers affected or likely to be affected by it?

Hangman Ridge, 105 Wn.2d at 790.

Not every deceptive act by a business is necessarily a violation of the Consumer Protection Act, but those that are come with significant penalties for the business.  RCW 19.86.090 provides that plaintiffs can recover “the actual damages sustained by him or her […] together with the costs of the suit, including a reasonable attorney’s fee. In addition, the court may, in its discretion, increase the award of damages up to an amount not to exceed three times the actual damages sustained… .”  These treble damages and attorney’s fees are intended to create an incentive to pursue violations of the CPA in private litigation and have the real potential to make a violation of the CPA an extremely expensive prospect for businesses.

By Joseph Gehrke

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