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Liberally Construed Elements of the Consumer Protection Act

Author: Michael Kutzner

Guest Editor: Jenn N. Crittondon

November 2, 2020 3:00pm

Consumer Protection Act (CPA) claims must satisfy five elements to be successful in Washington. A plaintiff must establish (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a person’s business or property, and (5) causation. In Young v. Toyota Motor Sales, U.S.A., WL 5668986 (2020), the Washington Court of Appeals opined the unfair or deceptive act must be material for the first element to be satisfied. The Washington Supreme Court found this conclusion to mistake the sufficient for the necessary.

After much fruitless searching locally in Eugene, Oregon, plaintiff Young finally found the color and option combination he desired in a 2014 Toyota Tacoma available for sale in Burlington, Washington. Young paid a deposit for the truck, flew to Burlington, and purchased his Toyota Tacoma.

Shortly (date unknown) before Young flew to Burlington, Toyota realized some of its advertising for the Tacoma was incorrect. The advertising stated some Tacomas had an enhanced rearview mirror, which would display the outside temperature, when no such mirror was included. Toyota notified regional representatives, and the next day, new advertising labels were printed for the 147 vehicles (three of which were in Washington State) affected by the incorrect advertising. By the end of the month, the online advertising had also been corrected.

To correct the error with customers who had already purchased one of the Tacomas sold under the guise of inaccurate advertising, Toyota offered $100 compensation to each buyer. This was ten times the cost of the feature. Young declined the offer, and several others, including an offer to replace the display with aftermarket equipment. Young brought a CPA claim against Toyota.

Where the relevant operative facts are undisputed, whether the act or practice is “unfair or deceptive” is a question of law. A plaintiff need not show an intention to deceive, but must show the act had the capacity to deceive a substantial portion of the public. Deceptions exists if a reasonable consumer is likely to be misled. There is no need to prove reliance to establish the “unfair or deceptive act” element. Given the above, the Washington Supreme Court reasoned materiality was not a necessary component of the first element in a CPA claim, specifically rejecting the proposition materiality was necessary as a matter of law.

The court reasoned, “A material misrepresentation is likely sufficient to satisfy the first element of a CPA action. But merely because something is sufficient in one case does not make it necessary in the next. ‘Unfair or deceptive’ must be liberally construed.” The inaccurate advertising for the Tacomas was public for nearly two months. The court found Toyota’s affirmative misrepresentation had the capacity to deceive a substantial portion of the public, and was thus sufficient to meet the first element towards establishing a violation of the CPA.

Young next needed to show Toyota’s acts caused him injury. Young did not challenge the underlying factual determination the trial judge made in ruling Young failed to show causation. The judge found Young was not charged for the advertised temperature gauge and display, and Young’s testimony of inducement to buy the Tacoma because of the advertised temperature gauge was not credible for multiple reasons. The trial judge, in his memorandum decision, found Young’s actions were “much more consistent with someone who learned that Toyota had made a mistake and wanted to take advantage of it, than someone who relied upon that item in good faith, and then did very little until Toyota actually admitted their error.”

In Washington, as the findings of fact are consistent with the judge’s memorandum decision, the findings are read in light of that memorandum decision. Taken together, they support the trial court’s conclusion Young failed to establish causation. This was fatal to Young’s CPA claim. Young’s own causation theory was rooted in reliance, and the court found no other substantial theory of causation in his arguments. The trial judge did not hold him to the reliance standard. Reliance was Young’s theory, and he failed to prove it.

The Washington Supreme Court continues its liberal approach in interpreting statutes and case law. CPA claims now have a broader claim window in Washington, because whether the alleged act or practice is “unfair or deceptive” must be liberally construed.

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