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Certification From United States District Court for Western District of Washington Wright v. Lyft, Inc.

Supreme Court of Washington, En Banc

December 14, 2017

CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON IN KENNETH WRIGHT, on his own behalf and on behalf of other similarly situated persons, Plaintiff,
LYFT, INC., a Delaware corporation, Defendants.

          Gonzalez, J.

         Kenneth Wright received an unsolicited text message that appeared to come from an acquaintance inviting him to download Lyft's cell phone application. Wright sued as a putative class member. The federal district court has asked this court to answer two certified questions relating to the state "Consumer Electronic Mail Act" (CEMA) and the Consumer Protection Act (CPA). Chs. 19.190, 19.86 RCW.


         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. The message invited him to download Lyft's application to his cell phone, offering him a ride worth $25.[1] 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. Wright alleged, among other things, the text message generated by Lyft violated state law. Lyft moved to dismiss Wright's claims. The district court granted in part, declining to dismiss Wright's state CEMA and CPA claims. The district court then certified two questions for this court's consideration.

Certified Questions
1. Does the recipient of a text message that violates the Consumer Electronic Mail Act, Chapter 19.190 RCW ("CEMA"), have a private right of action for damages (as opposed to injunctive relief) directly under the statute?
2. 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?

Am. Order Granting Stipulated Mot. to Certify Questions to Wash. Supreme Ct. at 1-2.

         Standards of Review

         Certified questions are matters of law we review de novo. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660, 670, 72 P.3d 151 (2003) (citing Rivett v. City of Tacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994)). We consider the legal issues presented based on the certified record provided by the federal court. Bradbum v. N. Cent. Reg'l Library Dist., 168 Wn.2d 789, 799, 231 P.3d 166 (2010) (citing RCW 2.60.030(2)).

         We review questions of statutory interpretation de novo. City of Pasco v. Pub. Emp't Relations Comm'n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992). On matters of statutory interpretation, our "fundamental objective is to ascertain and carry out the Legislature's intent." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). "[I]f the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent." Id. at 9-10.


         We conclude that the plain language of chapter 19.190 RCW creates a private cause of action with damages only for phishing violations. RCW 19.190.080, .090. We also conclude that while the plain language of CEMA's liquidated damages provision does not explicitly replace the causation or injury elements of a CPA claim, because the provision provides automatic damages for violations without condition, injury and causation do not need to be proved to receive damages. Accordingly, we answer no to the first certified question and yes to the second.

         1. Private Cause of Action under CEMA

         We are first asked whether RCW 19.190.040(1) provides a private cause of action for violations of CEMA. Wright contends that it does, while Lyft argues it provides the measure of any damages recoverable under a CPA suit. We agree with Lyft that RCW 19.190.040 does not provide an independent cause of action. We hold that CEMA creates a private cause of action with damages limited to phishing violations.

          To determine whether RCW 19.190.040 is directly actionable, we look to the language of the provision. RCW 19.190.040 does not exist in isolation and must be read in the context of the larger statutory scheme. See Campbell & Gwinn, LLC, 146 Wn.2d at 11 (reviewing courts derive plain meaning from the context of the act and related statutes); ITT Rayonier, Inc. v. Dalman, 122 Wn.2d 801, 807, 863 P.2d 64 (1993) ("Statutory provisions must be read in their entirety and construed together, not piecemeal." (citing Donovick v. Seattle-First Nat'l Bank, 111 Wn.2d413, 415, .757 P.2d 1378 (1988)). As Judge Pechman noted, CEMA's statutory scheme is "rather labyrinthine." Wright v. Lyft, 2016 WL 7971290, at *3 (W.D. Wash. Apr. 15, 2016) (court order). The most effective way to navigate this complexity and place RCW 19.190.040 in context is to trace the legislative development of the act and its subsequent amendments.

         Since its enactment in 1998, CEMA has been amended three times to increase the scope of prohibited electronic practices. Laws of 1999, ch. 289; Laws of 2003, ch. 137; Laws of 2005, ch. 378. The statute was created to address unwanted e-mail messages referred to as "spam." Final B. Rep. on Second Engrossed Substitute H.B. 1888, 59th Leg., Reg. Sess. (Wash. 2005) (defining "spam"); Laws OF 1998, ch. 149, § 4 (codified in RCW 19.190.030). Sending a commercial e-mail containing false or misleading information constitutes a "violation of the consumer protection act." LAWS OF 1998, ch. 149, § 4(1). The statute also established the first three elements of a CPA claim ((1) unfair or deceptive act (2) occurring in trade or commerce that affects (3) the public interest), and included a provision specifying damages to recipients of these improper e-mails. As originally passed, CEMA did not contain language creating a separate cause of action.[2]

         Lawmakers first amended CEMA in 1999. This legislative fix changed little in the original statute. Its most notable effect was to clarify that assisting the ...

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