In 2021, a group of consumers sued Amazon, alleging that Amazon violated Washington’s Consumer Protection Act “by charging consumers grossly inflated and thus ‘unfair’ prices during the COVID-19 pandemic.” A federal district court certified to the Washington Supreme Court whether the state law’s “prohibition on “unfair” acts or practices comprehend a price gouging claim of the type alleged,” whether the statute prohibits price increases of 15% or more as a general matter, and whether “the Court or the jury determine[s] what percentage increase in the price of goods is ‘unfair’ for the purposes of the statute.”
Last week, a fractured Washington Supreme Court issued its decision. The majority held that price gouging can be an unfair act or trade practice under the statute, and that the plaintiff’s allegations stated a violation of the law, adopting the substantial injury test applied by the FTC under the FTC Act, but refused to adopt a rigid 15% rule. Further, it held that the “unfairness” of a price increase was a mixed question of law and fact, typically resolved by the jury.
Concurring, one judge would not have adopted the federal substantial injury test but relied solely on the state statute’s text.
Two judges dissented, explaining they would not find the statute to cover price gouging claims.
