Are mandatory arbitration provisions recognized in your state? If so, are there any limitations to its enforcement?

Yes, Washington generally recognizes mandatory arbitration is available in most counties in Washington State for cases with a total value of less than $100,000.00 or when the plaintiff waives any claim above $100,000.00.  Transfer to the Arbitration Program is at the election of the plaintiff, and generally, cannot be opposed or objected to by a defendant.  The goal of the Arbitration Program is to provide litigants who have a civil case, other than an appeal from a court of limited jurisdiction, a simplified and economical procedure for obtaining the prompt and equitable resolution of disputes that have been filed in Superior Court.

Mandatory arbitration rules can be found in 1) Chapter 7.06 RCW, 2) the state’s Superior Court Civil Arbitration Rules, and 3) each county superior court’s local rules on mandatory arbitrations.  Discovery is streamlined and limited, and timing of the litigation is compressed (generally an arbitration hearing is set within three months of the election to arbitrate).  Upon completion of a mandatory arbitration hearing, the arbitrator must file his or her written decision/award with the superior court and serve it upon the parties. A party who disagrees with the award has a right to a trial de novo to review it. The request must be filed with the superior court within 20 days of the arbitrator filing his or her award. If neither party requests a trial de novo, either party can file a motion to have the superior court confirm the arbitration award as a superior court order or judgment.

When a party seeks a trial de novo after mandatory arbitration and fails to improve her position, she must pay the other party’s reasonable attorney fees. Washington courts have held that a party’s position prior to trial should be interpreted as an ordinary person would, and that the trial court should only compare the jury verdict and the arbitrator’s initial award. Because Washington courts will not conclude that a party has improved its position when the party did so only by prevailing on a claim that was not arbitrated, the trial court must consider only the portion of a jury’s verdict attributable to claims, cost and fees that were arbitrated.[i]

What is your state’s law, if any, regarding gift cards, subscription services and loyalty programs?

Washington law recognizes that a gift card has value that someone has paid. Gift cards and certificates have no expiration date or dormancy fees. [ii]  Therefore, it is “unlawful for any person or entity to issue, or to enforce against a bearer, a gift certificate that contains: (a) An expiration date; (b) Any fee, including a service fee; or (c) A dormancy or inactivity charge.”[iii] Section 19.240.020(1) applies to gift certificates issued with the sale of tangible personal property or services.[iv] If the gift certificate is used in an amount less than the full value, the issuer must make the remaining balance available to the bearer in cash or as a gift certificate at the option of the issuer. [v] Unless required by law, the issuers of a gift certificate is not required to replace a lost or stolen gift certificate. [vi]

Gift certificates may carry an expiration date so long as the following conditions are met: 1) The gift certificate is issued pursuant to an awards or loyalty program for the gift certificate;  2) The gift certificate is donated to a charitable organization without any money or other thing of value being given in exchange for the gift certificate if the gift certificate is used by a charitable organization solely to provide charitable services; and 3) the expiration date must be disclosed clearly and legibly.[vii]

What is your state’s law, if any, regarding safeguarding consumer credit card or other private data (i.e., cyber security)?

In 2010 Washington enacted a statute to provide financial institutions with a cause of action against certain entities involved in payment card transactions that fail to take reasonable care to guard against unauthorized access to account information where that failure is found to be the proximate cause of the breach.  RCW 19.255.

The law applies to businesses, processors and vendors, which are defined terms in the statute. A business is defined as an entity that ​“processes more than six million credit card and debit card transactions annually, and who provides, offers, or sells goods or services to persons who are residents of Washington.” A processor is defined as an entity ​“that directly processes or transmits account information for or on behalf of another person as part of a payment processing service.” Finally, a vendor is defined as an entity ​“that manufactures and sells software or equipment that is designed to process, transmit, or store account information or that maintains account information it does not own.”

The law imposes liability on a processor or business that fails to ​“take reasonable care” to prevent unauthorized access to account information in its possession or control. Account information is defined as: (i) the full, unencrypted magnetic stripe of a credit card or debit card; (ii) the full, unencrypted account information contained on an identification device (an ​“identification device” is defined as an item that uses radio frequency identification technology or facial recognition technology); or (iii) the unencrypted primary account number on a credit card or debit card or identification device in combination with an unencrypted cardholder name, expiration date, or service code. A processor or business suffering a data breach may now be liable to a financial institution for ​“reimbursement of reasonable actual costs related to the reissuance of credit and debit cards” incurred by the financial institution as part of efforts to mitigate current or future damages to its cardholders. A vendor may also be liable to a financial institution for the same damages if the damages were proximately caused by the vendor’s negligence and if the claim is not limited by another law or by contract.

Notably, the bill exempts processors, businesses, and vendors from liability if the account information was encrypted at the time of the breach or if the business was ​“certified compliant with the payment card industry data security standards” in effect at the time of the breach. A business is considered compliant if its PCI DSS compliance was validated by an annual security assessment conducted no more than one year prior to the breach. As such, the statute is an incentive for companies to become PCI DSS compliant and another area of potential liability in the absence of such certification.

What is your state’s law, if any, regarding the collection and handling of financial information?

The Washington Fair Credit Reporting Act (FCRA), found at RCW 19.182, substantially parallels the federal Fair Credit Reporting Act and the rights and remedies set forth in the Federal Trade Commission’s Summary of Rights, except that the Washington State law imposes greater limitations on the reasons for which an employer may obtain a consumer report (as set forth below).

Here is a summary of major rights under the WFCRA.

• Consumers must be told if information in their file has been used against the consumer. If a person takes an adverse action based, in whole or in part, on information contained in a consumer report, that person must provide notice and must provide the name, address, and telephone number of the consumer reporting agency that provided the information.
• Consumers have a right to know what is in their file. A consumer may request and obtain all the information in the files of a consumer reporting agency, although medical information may be withheld and given directly to a medical provider. Proper identification must be provided, which may include Social Security numbers. In many cases, the disclosure will be free. There is no charge for:
  • a consumer report if a person has taken adverse action against the consumer because of information in the credit report;
  • the reinvestigation of information subject to dispute; or corrected reports resulting from the deletion of inaccurate or unverifiable information;
  • one consumer report every 12 months, upon request.
• A consumer has the right to dispute incomplete or inaccurate information, the consumer reporting agency will investigate without charge and record the current status of the disputed information before the end of thirty business days, unless the dispute is frivolous.
• Consumer reporting agencies must correct or delete inaccurate, incomplete, or unverifiable information. Upon completion of the investigation, if the information disputed is found to be inaccurate or cannot be verified, the consumer reporting agency will delete the information and notify the consumer of the correction. If the investigation does not resolve the dispute, the consumer may file with the consumer reporting agency a brief statement setting forth the nature of the dispute. The statement will be placed in consumer ‘s file and in any subsequent report containing the information disputed.
• Consumer reporting agencies may not report outdated negative information. In most cases, a consumer reporting agency may not report negative information that is more than seven years old, or bankruptcies that are more than ten years old.
• A consumer reporting agency may provide information only to people with a valid need — such as application with a creditor, insurer, employer, landlord, or other business. The WFCRA specifies those with a valid need for access.
• Consumers must be notified if reports are provided to employers. A consumer reporting agency may not give out information to employers without the consumer’s knowledge. A potential employer must make a clear and conspicuous disclosure in writing or obtain consent before obtaining a report. A current employer may not receive a report unless it has provided written notice that consumer reports may be used for employment purposes. An employer may not obtain a consumer report that indicates the consumer’s credit worthiness, credit standing, or credit capacity, unless (1) the information is substantially job related and the employer’s reasons for using the information are disclosed in writing, or (2) the information is required by law.
• Consumers may limit “prescreened” offers of credit and insurance based on information in a credit report. Consumers may elect not to receive unsolicited “prescreened” offers for credit and insurance by using the consumer reporting agency’s notification system to opt out.
• Consumers may place a security freeze on their credit report.

[i] See Nelson v. Erickson, 186 Wn.2d 385 (2016); Bearden v. McGill, 193 Wn.App. 235 (2016).