Changes in Washington Practice (#19) / The public interest element in consumer protection actions

July 30, 2014

health-care-lawThis is installment #19 in a continuing series of Changes in Washington Practice Reports.

Differences between the treatments of consumer transaction disputes and  private disputes under the Washington Consumer Protection Act (CPA) have evolved in recent years.

Until recently, volume 6A of Washington Practice (Washington Practice Jury Instructions—Civil) has included separate instructions for the “Public Interest Element in Consumer Disputes” (WPI 310.04) and “Public Interest Element in Private Disputes (WPI 310.05).

The differences between a consumer transaction dispute and a private dispute under the CPA developed as the result of a 1986 case. ( Hangman Ridge…v. Safeco…105 Wash.2d 778….).

Subsequently, in 2009, a Washington statute replaced the common-law treatment of this issue. (RCW 19.86.093).

The 2013 Supplement to volume 6A of Washington Practice includes as a Highlight the revisions in instructions related to this statutory change.

The 2013 Supplement has expanded WPI 310.04 to cover the Public Interest Element in both situations, and has withdrawn WPI 310.05.

The new statute-based WPI 310.04 refers to the “five ways that a plaintiff may prove the public interest element in consumer protection actions.”

In the original common-law distinction established in Hangman, the Court noted that “Because this case involves a highly confused area of the law, we have chosen it as a vehicle for clarification of the private right of action under the CPA….)

The Court concluded that “to prevail in a private CPA action and therefore be entitled to attorney fees, a plaintiff must establish five distinct elements: (1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her business or property; (5) causation.”

The 2009 statute reads as follows: “In a private action in which an unfair or deceptive act or practice is alleged under RCW 19.86.020, a claimant may establish the act or practice is injurious to the public interest because it

  1. Violates a statute that incorporates this chapter;
  2. Violates a statute that contains a specific legislative declaration of public interest impact; or
  3. (a) Injured other persons; (b) had the capacity to injure other persons; or (c) has the capacity to injure other persons.

More information on Washington Pattern Jury Instructions may be found in Washington Practice volumes 6 and 6A and the Handbook by DeWolf (volume 6B) for civil coverage, and volumes 11 and 11A and the Handbook by Fine (volume 11B) for criminal coverage.

In addition, whenever attorneys wish to locate specific resource materials, Methods of Practice (volumes 1 to 1C) of Washington Practice, can provide useful assistance. Excerpts from all of the volumes of Washington Practice are included in an easily-searchable format, so that potential cites may be quickly located. The individual volumes of interest may then be examined for the needed details.