The Consumer Protection Act Private Right of Action: A Re-evaluation

The Consumer Protection Act (“CPA”) private right of action continues to trouble the Washington courts. Although the legislature mandated liberal construction of the CPA’ and phrased its prohibitions in “purposefully vague” language that was “little more than a legislative command that the judiciary develop a common law” of consumer protection, the courts have done neither. In a series of cases beginning in 1976, the courts have narrowed the scope of the CPA and entirely omitted two of its elements. This inconsistency between legislative command and judicial action necessitates a re-evaluation of the CPA. This comment will attempt an overview of the CPA private right of action-its elements, recent decisional law, and legislative intent. In doing so, three separate paths will be followed. First, it is necessary to acquaint the reader with certain terms used and by so doing provide a sense of the uncertainty that has characterized CPA case law. There are at present three separate sets of elements required of private CPA plaintiffs, and without the initial overview section the reader will never be certain which set of elements is being referred to. These sets of elements depend upon the method of proof of public interest is being used. Secondly, the court-imposed “public interest requirement,” by which a private plaintiff must show, in addition to a violation of the CPA, that the defendant’s conduct had an impact upon the public interest, will be examined. Both the cases and the available indicia of legislative intent, which the courts use to justify the public interest requirement,  will be discussed.

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Milton G. Rowland, The Consumer Protection Act Private Right of Action: A Re-evaluation, 19 Gonz. L. Rev. 673 (1984).

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