WA Supreme Court Clarifies Scope of Consumer Protection Act
In a unanimous decision today in Michael V. Mosquera-Lacey, or what the media calls the ‘Cow Bone Case’ the Washington Supreme Court discussed two facets of a Washington Consumer Protection Act claim -- its application to professionals, and the requirement that a CPA claim must impact the public interest. The plaintiff alleged that the CPA was violated when her periodontist implanted a cow bone rather than human bone during a bone graft. The court dismissed the claim.
I'm not sure there is anything new here, but, since, at one time or another, everyone is a consumer and pretty much everyone in "trade or commerce" might have to defend one of these claims, it is an interesting opinion.
The decision first discusses when a claim against a professional is considered to be in trade or commerce as required by the CPA. Professionals are not exempt from the CPA, but, for a claim to be proven, the allegedly unfair or deceptive practice must relate to the entrepreneurial aspects of the professionals' practice -- not to the substantive quality of the services they provided. In finding that the CPA did not apply, the court noted that the allegedly deceptive act (use of cow bone) involved plaintiff’s treatment and not the ‘entrepreneurial’ aspects of a practice -- billing, or obtaining or retaining patients, or increasing profits or the number of patients.
The court also decided that the case did not impact the public interest. (Maybe the claim doesn’t, but the decision is interesting for anyone who might want to bring or might be faced with a CPA claim.) A claim may have an impact on the public interest if it is likely that additional plaintiffs have or will be injured in exactly the same fashion. To decide that, four factors will be looked at:
• Were the acts in the course of defendant’s business,
• Did defendant advertise to the public in general,
• Did defendant actively solicit this plaintiff (because this suggests that others in the public also may have been solicited),
• And, were there unequal bargaining positions.
Not all of these factors have to be present for a claim to have an impact on public interest. Here, bottom line, the dental office did not act in trade or commerce in using some human bone, and the misplant did not impact the public interest.
