WPI 310.00 Consumer Protection Act—Introduction

Coverage of chapter. These consumer protection instructions cover only cases brought under the unfair or deceptive acts or practices aspects of the Unfair Business Practices Act—Consumer Protection Act (CPA), RCW Chapter 19.86. Antitrust and unfair competition aspects of the statute are not addressed in these instructions.

Statutory development. The CPA, first enacted in 1961, is Washington's principal consumer protection and antitrust statute. The consumer protection provisions of the CPA were modeled after Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. Most states now have such “Little FTC” acts. The heart of the consumer protection provisions of the CPA is RCW 19.86.020, which states: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”

In its early form the CPA allowed only actions by the Attorney General on behalf of the state; the state has remedies available to it under RCW 19.86.080 and RCW 19.86.140.

The CPA was later amended to add further remedies. Private rights of action may now be maintained for recovery of actual damages, costs, and a reasonable attorney's fee. RCW 19.86.090. A private plaintiff may be eligible for treble damages: “[T]he court may, in its discretion, increase the award of damages up to an amount not to exceed three times the actual damages sustained.” RCW 19.86.090 (capping such increased damages at $25,000 for violations of RCW 19.86.020).

A private plaintiff may also seek injunctive relief. RCW 19.86.090. The purpose of the private right of action is “to enlist the aid of private individuals … to assist in the enforcement of the [CPA].” Lightfoot v. MacDonald, 86 Wn.2d 331, 335–36, 544 P.2d 88 (1976). Private consumers may obtain injunctive relief, even if the injunction would not directly affect the individual's own rights. RCW 19.86.090; Hockley v. Hargitt, 82 Wn.2d 337, 349–50, 510 P.2d 1123 (1973). Thus, the private right of action serves the public interest by preventing unfair or deceptive practices from continuing unchecked. Hockley, 82 Wn.2d at 350; see also Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 295 P.3d 1179 (2013) (injunction against foreclosure trustee company restored on appeal).

A plaintiff in a private action under the CPA may also obtain rescission and other equitable remedies. Allen v. Am. Land Rsch., 95 Wn.2d 841, 851–52, 631 P.2d 930 (1981).

Elements. In Hangman Ridge Training Stables, Inc. v. Safeco Title Ins., Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986), the Washington Supreme Court defined the elements of a private CPA “unfair or deceptive acts or practices” action:

See the discussion of these elements in the Comments to WPI 310.01 (Elements of a Violation of the Consumer Protection Act) and WPI 310.08 (Definition—Unfair or Deceptive Act or Practice).

Per se violations. The Legislature periodically establishes per se violations of one or more elements of a CPA claim by declaring that a violation of a particular statute is a per se unfair or deceptive trade practice, which establishes the first two elements, or per se affects the public interest, which satisfies element (3), or both. See Hangman, 105 Wn.2d at 792. Examples of such statutes are listed in the Comment to WPI 310.03 (Per Se Violation of Consumer Protection Act). See also WPI 320.06 (Violations of Insurance Regulations Related to Settlement of Claims) for deceptive acts or practices by insurance companies.

A number of statutes that contain an “unfair trade or practice” and “public interest” declaration also contain a declaration that a violation “is not reasonable in relation to the development and preservation of business.” See, e.g., RCW 19.170.010(2) (advertising prizes and promotions); RCW 46.71.070 (automotive repair); RCW 19.182.150 (Fair Credit Reporting Act); RCW 49.60.030(3) (Law Against Discrimination). For a list of statutes containing declarations relevant to the CPA, see Appendix H to these instructions. See also the list of cross-referenced statutes in the Code Reviser's notes at the beginning of RCW Chapter 19.86 (http://app.leg.wa.gov/RCW/default.aspx?cite=19.86).

Preemption. The Bankruptcy Appellate Court for the Ninth Circuit has held that the U.S. Bankruptcy Code pre-empts the Washington CPA. In re Chaussee, 399 B.R. 225, 229–34 (9th Cir. BAP 2008).

Insurance bad faith instructions. The WPI instructions regarding insurance bad faith, at WPI Chapter 320, are companions to these instructions, and bad faith by an insurer can be a per se violation of the CPA. See WPI 320.00 (Insurance Bad Faith—Introduction).