The Washington State Supreme Court Expands Per Se Violations of the Consumer Protection Act for Unsolicited Text Messages in Violation of CEMA

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By Courtney B. Whitten

Wright v. Lyft, Inc., 189 Wn.2d 718, 406 P.3d 1149 (2017).

On March 20, 2014, Kenneth Wright received a text message from an acquaintance inviting him to download the Lyft application to his phone and offering him a $25 Lyft credit for doing so. Wright then brought a class action lawsuit against Lyft, alleging that this text message violated Washington’s Consumer Protection Act (“CPA”) and Consumer Electronic Mail Act (“CEMA”). The federal district court certified two questions to the Supreme Court of Washington, the second of which is discussed here. The court asked:

Does the liquidated damages provision of CEMA, RCW 19.190.040(1), establish the causation and/or injury elements of a claim under the Washington Consumer Protection Act, Ch. 19.86 RCW (“CPA”), as a matter of law or must the recipient of a text in violation of CEMA prove injury in fact before he or she can recover the liquidated amount?

The Supreme Court of Washington, en banc, answered this question in the affirmative, despite the fact that the Washington State Legislature did not include text messages in violation of CEMA as a per se CPA violation.

In order to prevail on a CPA claim, a plaintiff must prove five elements:

  1. [A]n unfair or deceptive act or practice;
  2. [T]hat the act or practice occurred in the conduct of defendant’s trade or commerce;
  3. [T]hat the act or practice affects the public interest;
  4. [I]njury to plaintiff’s business or property; and
  5. [D]efendant’s act or practice was the cause of plaintiff’s injury.

Sending an email in violation of CEMA is a per se violation of the CPA, meaning it automatically satisfies all five elements. However, according to the language of the statute, sending a text message in violation of CEMA only establishes the first three elements. Wright argued that the liquidated damages provision of CEMA establishes the final two elements.

The liquidated damages provision at issue reads:

(1) Damages to the recipient of a commercial electronic mail message or a commercial electronic text message sent in violation of this chapter are five hundred dollars, or actual damages, whichever is greater.
(2) Damages to an interactive computer service resulting from a violation of this chapter are one thousand dollars, or actual damages, whichever is greater.

It does not mention injury or causation. The court concluded that since the liquidated damages provision does not condition the award of damages on proving either causation or injury, it is therefore automatic, establishing the final two elements.

However, CEMA expressly provides for a per se CPA violation for spam emails. The Court overlooked the distinction in the legislature’s language regarding emails and text messages, relying on the legislative intent not to treat emails and texts messages differently and the legislative intent to discourage unsolicited text messages.

After Wright, the recipient of an unsolicited text message does not have to prove injury in order to bring a CPA claim and recover $500. But more importantly, this holding opens the door for other per se CPA violations where the Legislature has not expressly provided for them.

If you have questions concerning the Washington’s Consumer Protection Act, call the lawyers at Piskel Yahne Kovarik, PLLC.