§21.1 INTRODUCTION
This chapter deals with the application of Chapter 19.86 RCW, Washington's Unfair Business Practices—Consumer Protection Act (CPA), to acts and practices involving real property.
(1) Scope of chapter
This chapter discusses both consumer protection (RCW 19.86.020) and antitrust (RCW 19.86.030-.060) provisions of the CPA. Although Washington precedent is emphasized, this chapter also discusses some cases from other jurisdictions—state and federal—involving rules of general application.
Detailed discussion of the following topics and statutes is beyond the scope of this chapter: real estate licensing provisions, RCW 18.85.010-.340; land development registration requirements, RCW 18.85.450- .480; real estate brokers' fiduciary responsibilities, RCW 18.85.230; organization and operation of multiple listing services, RCW 18.85.400; mortgage brokers, Ch. 19.146 RCW; and the Residential Landlord-Tenant Act, Ch. 59.18 RCW. See also Volume 2, Chapter 17 (Landlord and Tenant), and Volume 3, Chapter 18 (Duties and Responsibilities of the Broker), of this deskbook; and 6 WASHINGTON REAL PROPERTY DESKBOOK Chapter 6 (Washington Land Development Act) (forthcoming 2011).
(2) Basic provisions of the CPA
Since its enactment in 1961, the CPA has been Washington's most important consumer protection and antitrust statute. For discussion and analysis of the CPA contemporaneous with its passage, see Julian C. Dewell & D. Wayne Gittinger, The Washington Antitrust Laws, 36 WASH. L. REV. 239 (1961), and John J. O'Connell, Washington Consumer Protection Act—Enforcement Provisions and Policies, 36 WASH. L. REV. 279 (1961). Although the statute differs in some respects from comparable federal law, key sections of the CPA were patterned after federal law. State v. Black, 100 Wn.2d 793, 799, 676 P.2d 963 (1984).
(3) Violations
RCW 19.86.020 closely parallels Section 5 of the Federal Trade Commission Act, 15 U.S.C. §45(a)(1), and prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.
RCW 19.86.030 and .040, the most important antitrust sections of the statute, are patterned respectively after Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§1, 2. RCW 19.86.030 prohibits all contracts, combinations, and conspiracies in restraint of trade affecting the state of Washington or its citizens. ("Every contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is hereby declared unlawful.") RCW 19.86.040 prohibits monopolization, attempts to monopolize, and concerted action to monopolize affecting trade or commerce in Washington. ("It shall be unlawful for any person to monopolize, or attempt to monopolize or combine or conspire with any other person or persons to monopolize any part of trade or commerce.") Both public and private enforcement remedies are provided under the Act.
Whether a particular act or practice gives rise to a CPA violation is a question of law. Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wn.App. 732, 744, 935 P.2d 628 (1997), review denied, 133 Wn.2d 1033 (1998). On appeal in a CPA lawsuit, questions of whether a party committed an act are reviewed based on the substantial evidence test while questions as to whether a particular act gives rise to a CPA violation are reviewed as questions of law. Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997); Griffith v. Centex Real Estate Corp., 93 Wn.App. 202, 214, 969 P.2d 486 (1998), review denied, 137 Wn.2d 1034 (1999).
Violations of the CPA, as a general matter, are subject to arbitration under the Federal Arbitration Act. Garmo v. Dean, Witter, Reynolds, Inc., 101 Wn.2d 585, 590, 681 P.2d 253 (1984). However, arbitration will not be compelled when the cost of arbitration to a claimant would be prohibitive...
