Private Washington consumer protection act claims and the public interest requirement.

Washington’s Consumer Protection Act (“CPA”) prohibits unfair or deceptive acts or practices in commerce and authorizes a private right of action for injury.  RCW 19.86.020; RCW 19.86.090.  The courts have broad discretion determining whether an act or practice is unfair or deceptive to fulfill the protective liberal purposes of the CPA.  Klem v. Washington Mut. Bank, 176 Wn.2d 771, 295 P.3d 1179 (2013).

Consumers who believe they have been deceived, or treated unfairly by a business, often jump to the conclusion they must a strong CPA claim, particularly given the broad and liberal application of the statute.  However, a violation of the CPA resulting in injury is not the end of the claim analysis.  Washington’s CPA has a somewhat unique additional requirement the claimant must show – that the public interest is served by the suit.  See Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 719 P.2d 531 (1986).

The CPA statute enumerates grounds for demonstrating the requisite public interest element.  RCW 19.86.093.  Basically, under the statute and the caselaw, unless the act or practice has previously been declared unlawful by the legislature, the claimant must show factually the violation has been repeated or will be repeated.  RCW 19.86.093(3). Put another way, the issue must be systemic within the business rather than a unique or one-off occurrence. 

For those consumers who believe they have suffered injury as a result of a CPA violation, the claim analysis must include attention to the public interest requirement and the showing of capacity for repetition.  No matter how egregious the conduct of the business, or how significant the resulting injury, if the claimant cannot demonstrate repetition, no CPA claim will follow.  Conversely, for those companies trying to insulate themselves from CPA liability, they must pay close attention to their acts and practices that are repeated.  It is the systemic issues that will expose the company to CPA liability, not the unique or one-off customer disputes.