When we get unsolicited business text messages on our cell phones we tend to feel upset, a little like being defrauded. Someone is taking our time and invading our space without permission. In 2007, Washington’s legislature agreed and passed the Consumer Electronic Mail Act (RCW 19.190) “to limit the practice of sending unsolicited commercial text messages to cellular telephone or pager numbers in Washington.” Sending unsolicited commercial texts was made a violation of the Consumer Protection Act.
The wording of the law was flawed. Illegal texting was not made a “per se” violation of the CPA so it appeared that the normal CPA rules applied.
In Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., the Washington Supreme Court held that a CPA plaintiff must prove: (1) the business engaged in an unfair or deceptive act or practice; (2) which occurred in trade or commerce (broadly construed); (3) which had a public interest impact;4) which injured the plaintiff’s business or property; and (5) which was caused by the unfair or deceptive practice. All five elements are required.
To prove is the first one: an unfair or deceptive act or practice – the complainant must establish that an act or practice has the capacity to deceive the general public or, alternatively, that the act is per se unfair or deceptive (as defined by statute or case law). No intent to deceive is required as long as the conduct has the “capacity to deceive” a significant portion of the general public. For example, a court has held that one use of a standardized (form) deceptive contract that has a capacity to deceive is sufficient.
Often the most difficult element to prove is number three: the acts affect the public interest. If the action is not a per se violation, the plaintiff must prove a pattern of business conduct likely to be repeated or with the potential of affecting more than one member of the public using a five-part test: 1) Was the act or practice part of the defendant’s business? 2) Was it part of a general course of conduct? 3) Did it take place repeatedly prior to the act involving the plaintiff? 4) Is there a real potential that the act will be repeated after the act involving the plaintiff? 5) If the act was a single transaction, where many consumers were harmed?
The poor wording of the anti-texting statute required a determination by the Washington Supreme Court of the meaning of the statute. The case was Wright v Lyft , Inc (2017 1214 WA Text case) decided in December of 2017.
Lyft operates a ridesharing service in which customers use cell phone applications to request rides from nearby drivers. Lyft’s application invites users to initiate text messages to a user’s contacts, inviting them to download the application and receive a Lyft ride credit. This process involves a Lyft user opening the application, clicking on the “Settings” menu, selecting “Invite Friends,” then selecting one or multiple individuals from the user’s contacts or “Select All,” and, finally, agreeing to “Send Invites.”
On March 20, 2014, Kenneth Wright received such a text message which invited him to download Lyft’s application to his cell phone and offering him a ride worth $25. Days later, Wright sued Lyft in federal court, seeking to represent a national class and a Washington subclass encompassing anyone who received an unsolicited Lyft text message.
Lyft argued that since commercial texting was not made a “per se” violation of the CPA, Wright must at least prove elements four and five of a CPA violation;(4) injured the plaintiff’s business or property; and (5) which was caused by the unfair or deceptive practice. It is very difficult to prove that receiving a text caused damages for all members of the class. If Lyft’s interpretation was correct, there would probably be no case against it.
The Washington Supreme Court came to the rescue and essentially implied “per se” status for non consensual commercial text messages. Unwanted text messages give rise to a minimum of $500 each.