Claims directed to the competence of, or strategy employed by, lawyers amount to allegations of negligence or malpractice and are exempt from the CPA. Michael v. Mosquera-Lacy, 165 Wn.2d 595, 603, 200 P.3d 695 (2009); Short v. Demopolis, 103 Wn.2d 52, 61-62, 691 P.2d 163 (1984). Only certain of the entrepreneurial aspects of the practice of law may fall within the "trade or commerce" definition of the CPA.
While each of the factors in the test are helpful, a plaintiff need not establish all of them and none are dispositive when looking at public impact for purposes of the CPA. Michael v. Mosquera-Lacy, 165 Wash.2d 595, 605 (2009). Greek Islands contends that Zenefits is aware of the risk of fraud, but not that theft was accomplished as a result of a breakdown in the vetting process for any other business or personal bank account that Zenefits has accessed for payroll purposes.
“A private plaintiff must show that his lawsuit would serve the public interest.” Michael v. Mosquera-Lacy, 165 Wn.2d 595, 605 (2009).
As a threshold matter, the CPA does not apply to the practice of law. Michael v. Mosquera-Lacy, 200 P.3d 695, 699 (Wash. 2009). It only applies to "entrepreneurial aspects of legal practice—how the price of legal services is determined, billed, and collected and the way a law firm obtains, retains, and dismisses clients."
To establish the public interest element, there must be a real and substantial potential for repetition, "as opposed to a hypothetical possibility of an isolated unfair or deceptive act's being repeated." Michael v. Mosquera-Lacy, 165 Wash. 2d 595, 604-05 (2009) (quoting Eastlake Constr. Co., Inc. v. Hess, 102 Wash. 2d 30, 52 (1984)); see also RCW 19.86.093. Plaintiffs' factual allegations are accepted as true in the context of a motion to dismiss. Therefore, they have sufficiently pled the public interest element of their CPA claim.
To prove a CPA claim, a plaintiff must show "(1) an unfair or deceptive act or practice that (2) occurs in trade or commerce, (3) impacts the public interest, (4) and causes injury to the plaintiff in her business or property, and (5) the injury is causally linked to the unfair or deceptive act." Steele v. Extendicare Health Servs., Inc., 607 F. Supp. 2d 1226, 1230 (W.D. Wash. 2009) (citing Michael v. Mosquera-Lacy, 165 Wn.2d 595, 602 (2009)). This discovery dispute hinges on the third element, the existence of a public interest impact.
When, such as the case is here, the complaint involves a private dispute, the Court evaluates four factors to determine whether the Bank's conduct affects the public interest. Michael v. Mosquera-Lacy, 165 Wn.2d 595, 605 (2009). None of the factors is dispositive and not all four must be present.
The CPA should be liberally construed. Michael v. Mosquera-Lacy, 165 Wn.2d 595, 602, 200 P.3d 695 (2009).