WPI 310.03 Per Se Violation of Consumer Protection Act

Use when the plaintiff alleges violation of a statute or regulation that is, by its terms, a per se violation of the Consumer Protection Act.

When a statute declares that its violation constitutes an unfair or deceptive act or practice, use the first sentence of the instruction. When the statute also contains a declaration that violation of the statute affects the public interest, use the bracketed sentence, and “three elements” in the last paragraph of the instruction. In the less common situation when the statute has a per se violation provision but no public interest declaration, use the alternative for two elements. In the uncommon situation when the statute contains only a public interest declaration, use only the bracketed alternative, and adjust the final paragraph accordingly.

See the Comment below for examples of statutes with such declarations. For per se violations of the CPA by violation of insurance regulations, use WPI 320.06 (Violation of Insurance Regulations Related to Settlement of Claims).

Under Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 786, 719 P.2d 531 (1986), there are two types of statutory declarations that might constitute a per se violation of elements of the Consumer Protection Act: (a) a “per se unfair trade practice … when a statute has been declared by the Legislature to constitute an unfair or deceptive act in trade or commerce,” or “unfair trade practice,” satisfying the first two elements of a CPA cause of action, and (b) a separate public interest declaration, satisfying the third element. See WPI 310.01 (Elements of a Violation of the Consumer Protection Act); see also Wright v. Lyft, Inc., 189 Wn.2d 718, 406 P.3d 1149 (2017); Campbell v. Seattle Engine Rebuilders & Remfg., Inc., 75 Wn.App. 89, 876 P.2d 948 (1994) (public interest requirement must be met independently).

Examples of statutes with both an “unfair or deceptive act or practice in trade or commerce” declaration and a “public interest” declaration are: RCW 18.11.260 (auctions), RCW 19.158.010 and .030 (commercial telephone solicitation), RCW 19.170.010 (advertising prizes and promotions), RCW 19.182.150 (Fair Credit Reporting Act), RCW 19.250.040 (personal wireless numbers), RCW 26.33.400(3) (adoption advertising), RCW 31.45.190 (check cashers), RCW 46.70.310 (formerly Unfair Motor Vehicle Practices—Dealers' Licenses), RCW 46.71.070 (automotive repair), RCW 49.60.030(3) (discrimination, civil rights), RCW 63.10.050 (consumer leases of motor vehicles), and RCW 80.36.400(3) (automatic dial answer services).

Examples of statutes with only an “unfair or deceptive act or practice” declaration include: RCW 18.185.210 (bail bond agents), RCW 19.16.440 (collection agencies), RCW 19.100.190 (franchises), RCW 19.110.170 (business opportunity fraud), RCW 19.134.070(5) (credit service agencies), RCW 19.275.040 (pyramid schemes), and RCW 64.36.330 and .170 (time share sales).

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 19.182.150 (Fair Credit Reporting Act); RCW 46.71.070 (automotive repair); 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).