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Consumer Protection Act - Consumer Protection Division (February 5, 2020)

Summary

A document titled Consumer Protection Act by Shannon Smith, Division Chief of the Consumer Protection Division, dated February 5, 2020. It states that the Attorney General is the primary enforcer of the Consumer Protection Act (CPA) and that the CPA affords a private right of action. It lists relief for an Attorney General action, including civil penalties of up to $2000 per violation, and for a private action, where a court can treble damages up to $25,000. A closing page compares the CCPA with WA Privacy Proposals.

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“Consumer Protection Act - Consumer Protection Division (February 5, 2020).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2020-02-05-a26543-d213679-consumerprotection-ited-dca9f04fe7/, SHA-256 7bd962393aedf7599681de01eabc929ba58163300066be168e0fb0951d2d5470.

Full text

                  CONSUMER PROTECTION ACT




         Shannon Smith, Division Chief
         Consumer Protection Division
         February 5, 2020

ATTORNEY WORK PRODUCT
PRIVILEGED AND CONFIDENTIAL
            Consumer Protection Act (CPA)


    RCW 19.86, “Unfair Business Practices-Consumer
     Protection Act”
    Protects the marketplace from unfair, deceptive,
     and anti-competitive practices
    The Attorney General is the primary enforcer of
     the CPA
    The CPA affords a private right of action

                                                       2
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            Elements of a CPA Violation

                  AGO Enforcement                   Private Enforcement
      1. Unfair or deceptive act                  1. Unfair or deceptive act
         or practice;                                or practice;
      2. Occurs in trade or                       2. Occurs in trade or
         commerce; and                               commerce;
      3. Public interest impact                   3. Public interest impact;
                                                  4. Injury; and
                                                  5. Causation

                    Hangman Ridge Training Stables v. Safeco Ins. Co. (1986)   3
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            Elements of a CPA Violation

                    Actual deception is not required;
                     capacity to deceive a substantial
                     portion of the public is all that is
                     necessary
                    Intent to deceive is not required
                    But, private plaintiffs must prove injury
                     and causation
                  Hangman Ridge Training Stables v. Safeco Ins. Co. (1986)
                                                                             4
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PRIVILEGED AND CONFIDENTIAL
            Relief for CPA Violation

       Attorney General Action                Private Action
             Injunctions                 Injunctions
             Consumer restitution        Actual damages
                                           suffered
             Civil penalties of up to
              $2000 per violation            Court can treble
                                              damages up to
             Prevailing party
                                              $25,000
              (including defendant)
              can obtain costs and        Plaintiff can obtain
              attorney’s fees              costs and attorney’s
                                           fees
                                                                  5
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            Exemptions to CPA

                “Reasonable acts” that do not
                 injure the public are not violations
                Conduct “otherwise regulated”
                 does not violate the CPA
                Statute-by-statute exemptions can
                 swallow important protections

                                                        6
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            AGO Enforcement

             Consumer Protection Division enforces the
              provision prohibiting unfair or deceptive
              practices (UDAPs)
             The Antitrust Division enforces the antitrust
              provisions that prohibit anticompetitive
              conduct
             The Civil Rights Division may enforce the CPA
              in situations involving discrimination
             The Environmental Protection Unit may enforce
              the CPA regarding environmental issues
                                                              7
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            AGO Enforcement

             AG brings actions for the benefit of the
              public, not individual consumers
                    Focus on defendant’s conduct
                    Individual consumer restitution important,
                     but incidental to public relief
                              Restitution is different from damages
             Deters unlawful acts or practices

                                                                       8
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            AGO Enforcement – Challenges


  Civil penalties limited to $2000 per violation
  Trial courts have imposed a two-year statute of
   limitations on civil penalties
  Restitution means “restore” what has been
   “unlawfully acquired”
  AGO may have to pay defendant’s attorneys’
   fees if case is not successful
  In privacy and tech, defendants are overseas
                                                     9
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      Consumer Protection Division –
      Enforcement

             Cases filed by Consumer Protection
              Division:
                    2019: 53
                    2018: 41
             Includes voluntary assurances, consent
              decrees, and lawsuits
             CP Division has 90-120 investigations per
              year; can take weeks or years to
              complete                                    10
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            Consumer Protection Division –
            Enforcement

         There are no enforcement thresholds
         No formal criteria for cases, but factors include:
                 Consumer harm
                        Dollar amounts; pervasiveness; scope; impact
                 Vulnerable consumers
                 Other enforcers
                 Local actors
                 More effective alternatives to litigation
                 Risk of negative outcome and payment of
                  defendant’s attorneys’ fees
                                                                        11
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      Consumer Protection Division –
      Enforcement

             The CPA does not require proof of harm
             The AGO is not required to prove that any consumer
              suffered monetary loss
             Currently, the AGO can bring actions under the CPA for
              failure to reasonably secure data or failing to keep
              information private without proof that any consumer was
              harmed
             Failing to secure data and protect privacy are unfair or
              deceptive practices under the CPA


                                                                         12
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            Private Enforcement

             CPA was enacted in 1961
             Private right of action was added in 1971 in
              response to a need for additional enforcement
              capabilities
             The CPA encourages private actions to enlist
              the aid of private individuals in enforcing the
              law for the benefit of the public
             There must be a public interest impact
             Deters unlawful acts or practices

                                                                13
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            Private Enforcement


         Consumers must prove injury caused by the unfair
          or deceptive practice
         Consumers often include other causes of action,
          such as breach of contract, negligent
          misrepresentation, or other actions
         The quality of the private action varies, as is usual
          in all litigation
         Most states have a private right of action, and
          many require proof of injury and/or causation
                                                                  14
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            AGO Enforcement vs.
            Private Enforcement

                   AGO Enforcement          Private Enforcement
             Action brought for           Action brought for
              benefit of public             benefit of consumer,
             Consumer restitution is       but must have a public
              incidental to public          interest impact
              relief
                                           Individual injury and
             Restitution is limited to     causation required
              money or property
              acquired through             Damages not limited
              unlawful acts                 to what was acquired
                                            by unlawful acts
                                                                     15
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PRIVILEGED AND CONFIDENTIAL
            AGO Enforcement vs.
            Private Enforcement

             The AGO does not represent consumers individually
                     We cannot act as private counsel for individual
                      consumers or groups of consumers
                     Individual interests cannot override public
                      benefit
                     Consumer injury and desired remedy can vary
                      among consumers
             The public interest is the real party in interest, not
              individuals

                                                                        16
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            CPA Enforcement of Privacy
            Interests

             AGO restitution remedy is inadequate to protect
              privacy interests:
                    “To restore to any person in interest any moneys or
                    property, real or personal, which may have been
                    acquired by means of any act herein prohibited or
                    declared to be unlawful.”
             In many situations, privacy interests are violated
              without an exchange of money or property
             AGO cannot obtain damages for injury to privacy
              interests
                                                                          17
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    CCPA vs. WA Privacy Proposals

                              CCPA             WA Privacy Proposals

             Affords a private right of     No private right of action
              action for a data breach
                                             Preempts local laws and
              with failure to reasonably
                                              ordinances
              secure data; sets statutory
              damages                        No notice required to third-
                                              parties regarding consumer
             Does not preempt local
                                              rights (e.g. requests to
              laws and ordinances
                                              delete)
             Requires notice to third-
                                             Heavy focus on facial
              parties
                                              recognition
             Does not treat facial
              recognition separately
                                                                             18
ATTORNEY WORK PRODUCT
PRIVILEGED AND CONFIDENTIAL


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