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.
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.
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."
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. 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
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
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.
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)).
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.
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.
Private Cause of Action under CEMA
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.
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
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.
first amended CEMA in 1999. This legislative fix changed
little in the original statute. Its most notable effect was
to clarify that assisting the ...