Opposition Brief — CLA Estate Services, Inc., et al., Petitioners v. Washington

Supreme Court briefNov 16, 2023

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No. 23-29

In the Supreme Court of the United States

CLA ESTATE SERVICES, INC. ET AL.,

PETITIONERS,

STATE OF WASHINGTON,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI

TO THE WASHINGTON COURT OF APPEALS

BRIEF IN OPPOSITION

ROBERT W. FERGUSON

Attorney General

NOAH GUZZO PURCELL

Solicitor General

Counsel of Record

CYNTHIA L. ALEXANDER

PETER B. GONICK

TERA M. HEINTZ

Deputy Solicitors General

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

QUESTIONS PRESENTED

In response to exploitation of senior citizens by

unscrupulous actors, Washington barred most nonlawyers from marketing estate planning services and

from gathering financial information from clients for

purposes of preparing estate documents. Petitioners

engaged in precisely the conduct prohibited by

Washington law. They used non-lawyers to gather

financial information from vulnerable Washington

seniors, then sent insurance agents, operating on

commission, into seniors’ homes, using their financial

information to sell them millions of dollars worth of

complex annuities that no informed investor would

ever purchase. The questions presented are:

Can Petitioners raise here a First Amendment

challenge to Washington law when the

Washington Court of Appeals found that

Petitioners had forfeited that argument as a

matter of state law?

Can Petitioners raise a due process challenge to

Washington law based on alleged vagueness as

to others when their own conduct was clearly

outlawed?

Should this Court review Petitioners’ claims

when they allege no disagreement in the

lower courts and instead argue only

(and inaccurately) that Washington courts

misapplied this Court’s precedent?

TABLE OF CONTENTS

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 3

Washington’s Consumer Protection

Laws Protect Consumers from Unfair

and Deceptive Practices .................................. 3

CLA Implemented a Deceptive

Scheme to Induce Washington

Seniors to Purchase its Lifetime

Estate Plan and Expensive,

Illiquid Annuities............................................. 6

The State Trial Court Ruled

that CLA’s Deceptive Scheme

Violated Washington’s Consumer

Protection Laws ............................................. 11

The Washington Court of Appeals

Affirms the Restitution and Penalty

Award Against CLA....................................... 13

REASONS TO DENY REVIEW............................... 15

This Court Lacks Jurisdiction to

Consider CLA’s Arguments ........................... 16

The Court of Appeals Rejected

CLA’s First Amendment

Argument on Independent

and Adequate State Grounds ............. 16

CLA Lacks Standing to Assert

Its Facial Vagueness Claim ................ 20

Even if CLA Could Overcome its

Jurisdictional Obstacles, It Fails to

Show A Circuit Split or Conflict

with this Court’s Cases.................................. 22

iii

CLA Fails to Show Any

Conflict Regarding Its

Vagueness Argument .......................... 22

CLA Fails to Show Any

Conflict Regarding Its First

Amendment Argument ....................... 27

CLA Fails to Allege Any

Circuit Split ......................................... 29

This Case Is a Poor Vehicle to

Review State Consumer Protection

Laws ............................................................... 29

CONCLUSION .............................................. 32

TABLE OF AUTHORITIES

Cases

Adams v. Robertson

520 U.S. 83 (1997) ............................................ 17-18

Christopher v. SmithKline Beecham Corp.

567 U.S. 142 (2012) ................................................27

Coleman v. Thompson

501 U.S. 722 (1991), holding modified by

Martinez v. Ryan

566 U.S. 1 (2012) ....................................................17

FCC v. Fox Television Stations, Inc.

567 U.S. 239 (2012) .................................... 22-23, 25

Foster v. Chatman

578 U.S. 488 (2016) ................................................17

Grayned v. Rockford

408 U.S. 104 (1972) ................................................23

Harris v. Reed

489 U.S. 255 (1989) ................................................17

Health Ins. Pool v. Health Care Auth.

129 Wash. 2d 504, 919 P.2d 62 (1996) ...... 14, 18-19

Herb v. Pitcairn

324 U.S. 117 (1945) ..........................................17, 19

Hernandez v. New York

500 U.S. 352 (1991) ..........................................21, 30

In re Pers. Restraint Petition of Rhem

188 Wash. 2d 321, 394 P.3d 367 (2017) ................19

Jimmy Swaggart Ministries v. Bd. of

Equalization of California

493 U.S. 378 (1990) ................................................19

Ohralik v. Ohio State Bar Ass’n

436 U.S. 447 (1978) ................................................29

Pub. Hosp. Dist. 1 of King Cnty. v.

Univ. of Washington

182 Wash. App. 34, 327 P.3d 1281 (2014) .............19

Rest. Dev., Inc. v. Cananwill, Inc.

150 Wash. 2d 674, 80 P.3d 598 (2003) ..................24

Seven Gables Corp. v. MGM/UA Ent. Co.

106 Wash. 2d 1, 721 P.2d 1 (1986) .................. 22-23

State v. Bonds

174 Wash. App. 553, 299 P.3d 663 (2013) .............19

State v. Johnson

119 Wash. 2d 167, 829 P.2d 1082 (1992) ..............19

State v. Mandatory Poster Agency, Inc.

199 Wash. App. 506, 398 P.3d 1271 (2017) ...........31

State v. Ralph Williams’ N.W. Chrysler

Plymouth, Inc.

87 Wash. 2d 298, 553 P.2d 423 (1976) ....................4

Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc.

455 U.S. 489 (1982) ..........................................15, 20

Western Telepage, Inc. v. City of

Tacoma Dep’t of Fin.

140 Wash. 2d 599, 998 P.2d 884 (2000) ................26

Rules

Rule 10 ........................................................... 15, 23, 28

Rule 14(g)(i) ...............................................................18

Constitutional Provisions

U.S. const. amend. I ...... 2, 14-16, 18-19, 22, 27-28, 30

Statutes

18 U.S.C. § 1464 ........................................................25

Wash. Rev. Code 19.86 ...................................... passim

(Consumer Protection Act)

§ 19.86.020 ...........................................................3

§ 19.86.080(1)-(2) .................................................4

§ 19.86.140 ...........................................................4

Former Wash. Rev. Code § 19.86.140 (1983) ..............4

Wash. Rev. Code 19.295 (EDDA) ...................... passim

(Estate Distribution Documents Act)

§ 19.295.005 ................................2, 4-5, 23, 25, 28

§ 19.295.010(3) ..........................................2, 5, 20

§ 19.295.010(4) ........................................ 5, 20, 23

§ 19.295.020 .......................................................25

§ 19.295.020(1) ........................................ 5, 20, 23

§ 19.295.020(4)-(6) ...............................................5

§ 19.295.030 ............................................. 5, 25, 31

Other Authorities

16B Charles Alan Wright et al.,

Fed. Prac. & Proc. Juris. § 4019,

Westlaw (3d ed. & Apr. 2023 Update) ..................17

Washington State Legislature,

Bill Information, HB 1441 (2007-08),

https://app.leg.wa.gov/billsummary?Bill

Number=1441&Year=2007&Initiative=false ......26

INTRODUCTION

CLA’s long history of deceptive conduct

continues in its petition for certiorari. The petition

misrepresents CLA’s business model, the facts, the

lower court opinion, and the issues actually presented

here. The truth is that the Washington courts

straightforwardly applied this Court’s precedent,

there is no circuit split, and there is no basis for

granting certiorari.

CLA repeatedly violated Washington consumer

protection laws as it financially exploited seniors.

CLA lured retirees to “free-lunch” estate-planning

seminars at which it misrepresented Washington’s

probate process to convince attendees that their

families would be financially vulnerable unless they

purchased CLA’s “Lifetime Estate Plan.” Once these

were in place, CLA had the excuse it needed to send

its representatives into seniors’ homes under the

guise of updating their estate plans. Unbeknownst to

the consumers, CLA’s representatives were actually

commission-motivated insurance agents, not financial

planning experts. CLA trained its agents to sell

complex, high-commission annuities that no informed

customer would ever buy. Without financial advisors

or family members present, seniors in their homes

were highly vulnerable to CLA’s sales tactics. CLA’s

scheme earned the company millions.

CLA’s scheme was illegal under Washington

law. Washington’s Consumer Protection Act prohibits

deceptive business practices, and the Estate

Distribution Documents Act bars the “unscrupulous

practice of marketing legal documents as a means of

targeting senior citizens for financial exploitation.”

Wash. Rev. Code § 19.295.005. To achieve this goal,

the Act prohibits non-lawyers from engaging in the

business of “[g]athering information for the

preparation of an estate distribution document,”

Wash. Rev. Code § 19.295.010(3), a prohibition CLA

repeatedly violated.

The State of Washington sued CLA for violating

these laws, and a state trial court ruled in the State’s

favor. CLA appealed, arguing that it had not broken

these laws and that they were vague. The Washington

Court of Appeals rejected these arguments, noting

that CLA had not raised a First Amendment claim.

CLA’s petition seeks to attack that judgment

here on First Amendment and due process grounds,

but it suffers from three fatal flaws.

First, neither of CLA’s claims is reviewable

here. CLA cannot raise a First Amendment claim

in this Court because it abandoned any First

Amendment argument on appeal in Washington State

court, providing an adequate and independent state

law ground for the lower court’s judgment. And CLA

lacks standing to raise its due process claim because

its conduct clearly falls within Washington’s law, and

it cannot base a vagueness claim on arguments about

how the law might be applied to others.

Second, even if CLA’s claims were reviewable,

the petition meets none of this Court’s criteria for

certiorari. CLA never even alleges a disagreement in

the lower courts. CLA also never argues that the lower

courts applied the wrong standard in evaluating its

claims. Instead, CLA argues that the lower courts

misapplied the legal standard. This is no basis for

certiorari, and it is inaccurate in any event. The lower

courts applied this Court’s due process case law,

carefully reviewed CLA’s conduct, and found that it

was clearly prohibited by Washington law.

Finally, even if CLA’s claims were reviewable,

this case would be a terrible vehicle to consider

CLA’s expansive allegations about state consumer

protection laws. CLA acknowledges that no other

state has a law like Washington’s Estate Distribution

Documents Act, so any holding would only be relevant

in Washington. And CLA’s petition is premised on a

wide range of inaccurate factual assertions. To give

just one of countless possible examples, the lower

courts specifically rejected CLA’s “misleading” claim

that the Attorney General’s Office somehow approved

of CLA’s business model, finding that the facts “do not

include any explicit or tacit indication from the

[Attorney General’s Office] that it had concluded

CLA’s business model was lawful[,]” and “neither

statutory text, court guidance, nor agency guidance

indicate that CLA’s interpretation of the law was

reasonable.” Pet. App. 25a-26a.

The Court should deny certiorari.

STATEMENT OF THE CASE

Washington’s Consumer Protection Laws

Protect Consumers from Unfair and

Deceptive Practices

Washington’s Consumer Protection Act

prohibits “unfair or deceptive acts or practices in the

conduct of any trade or commerce[.]” Wash. Rev. Code

§ 19.86.020. The Act provides a range of remedies for

each violation of the statute, including injunctive

relief, restitution, civil penalties, and costs and fees.

Wash. Rev. Code §§ 19.86.080(1)-(2), .140; Pet. App.

92a. During the period at issue, the Consumer

Protection Act allowed a civil penalty of up to $2,000

for each violation. Former Wash. Rev. Code

§ 19.86.140 (1983). Each unfair or deceptive act is a

separate violation of the Consumer Protection Act.

State v. Ralph Williams’ N.W. Chrysler Plymouth,

Inc., 87 Wash. 2d 298, 316-17, 553 P.2d 423 (1976);

Pet. App. 27a.

Violations of certain statutes are per se

violations of the Consumer Protection Act.

Washington’s Estate Distribution Documents Act

(EDDA), Wash. Rev. Code 19.295, is one such statute.

In enacting the EDDA, the Washington legislature

found “the practice of using ‘living trusts’ as a

marketing tool by persons who are not authorized to

practice law . . . to be a deceptive means of obtaining

personal asset information and of developing and

generating leads for sales to senior citizens.” Wash.

Rev. Code § 19.295.005. Because “this practice

endangers the financial security of consumers and

may frustrate their estate planning objectives[,]” the

legislature enacted the EDDA “to prohibit the

marketing of services related to preparation of estate

distribution documents by persons who are not

authorized to practice law or who are not a financial

institution.” Wash. Rev. Code § 19.295.005. The

legislature clarified that the statute is “not intended

to limit consumers from obtaining legitimate estate

planning documents, including ‘living trusts,’ from

those authorized to practice law; but is intended to

prohibit persons not licensed to engage in the practice

of law from the unscrupulous practice of marketing

legal documents as a means of targeting senior

citizens for financial exploitation.” Wash. Rev. Code

§ 19.295.005.

Accordingly, the EDDA makes it “unlawful

for a person to market estate distribution

documents, directly or indirectly, in or from

[Washington] unless the person is authorized to

practice law in [Washington].” Wash. Rev. Code

§ 19.295.020(1). The EDDA contains exceptions

for nonlawyer professionals who have legitimate

reasons to be involved in the preparation of

consumers’ estate documents, including financial

institutions, accountants, and tax agents. Wash. Rev.

Code § 19.295.020(1), (4)-(6).

“Marketing” includes “every offer, contract, or

agreement to prepare or gather information for the

preparation of, or to provide, individualized advice

about an estate distribution document.” Wash. Rev.

Code § 19.295.010(4). “Gathering information for the

preparation of an estate distribution document”

means “collecting data, facts, figures, records, and

other particulars about a specific person or persons for

the preparation of an estate distribution document[.]”

Wash. Rev. Code § 19.295.010(3). Because a violation

of the EDDA is a per se violation of the Consumer

Protection Act, the EDDA’s prohibitions apply to acts

“in trade or commerce,” and do not extend to

circumstances outside such commercial contexts.

Wash. Rev. Code § 19.295.030. So, for example, a

friend or family member collecting information from

a loved one without compensation to assist them with

estate planning would not be covered.

CLA Implemented a Deceptive Scheme to

Induce Washington Seniors to Purchase

its Lifetime Estate Plan and Expensive,

Illiquid Annuities

In 2008, Texas corporations CLA Estate

Services, Inc. and CLA USA, Inc. (collectively, CLA)

began offering free estate planning seminars to senior

citizens in Washington, providing a free meal to

encourage attendance. Pet. App. 2a, 33a. CLA sales

representatives, who were not attorneys, led the

seminars. Pet. App. 2a, 33a.1

Following

CLA’s

scripts,

the

sales

representatives gave presentations to attendees

filled with misrepresentations about alleged

dangers of the Washington probate process. Pet. App.

4a-13a, 34a-50a. Although Washington has one of the

simplest, most efficient probate processes in the

country, CLA depicted it as slow, expensive, difficult,

and likely to leave loved ones financially vulnerable.

Pet. App. 12a-13a, 34a-46a. In contrast, CLA

described living trusts as having only positive

attributes and leading to “peace of mind[.]” Pet. App.

12a, 46a-47a.

CLA used these “scare tactics” to market and

sell its Lifetime Estate Plan at a cost of $2,500 to

$3,000, and to persuade attendees to set up living

trusts. Pet. App. 26a, 53a, 101a. CLA’s presenters

touted the Lifetime Estate Plan as a full-service

estate-planning package, including regular in-home

1 The facts referenced in this statement are from the

findings of the courts below and are not challenged by CLA here.

visits, in which CLA would assist consumers with

estate planning to protect their assets and heirs,

provide access to attorneys to draft estate documents,

and support and coordinate the work of the attorneys.

Pet. App. 2a, 50a.

CLA told seminar attendees that financial

planners would conduct the promised in-home

meetings, but this was a ruse. Pet. App. 13a, 56a-57a.

Instead, CLA “mis[led] consumers as to their

intentions in order to create a warm and trusting

environment for the sale of additional products.” Pet.

App. 15a; see also Pet. App. 66a. Rather than sending

knowledgeable financial and estate planners, CLA

sent insurance agents, who used the in-home

consultations to learn about customers’ assets and

exploit that information to market annuities.

Pet. App. 13a-14a, 54a-69a. CLA never disclosed these

facts, or that CLA’s agents were paid almost

exclusively through commissions from selling

annuities. Pet. App. 13a-14a, 54a-69a. “Consumers

did not understand that CLA sold insurance. Instead,

they believed CLA was offering estate plans

that would avoid probate.” Pet. App. 61a; see also

Pet App. 14a.

At its estate-planning seminars, CLA offered to

gather information for the preparation of estate

documents as part of its promised coordination of

non-legal services with attorneys. Pet. App. 17a-18a,

50a-53a. CLA then gathered this information both at

its seminars and at the in-home meetings its agents

conducted. Pet. App. 17a-18a, 63a-69a.

When a consumer purchased a Lifetime Estate

Plan, CLA referred the consumer to an attorney to

prepare a living trust and other estate documents.

Pet. App. 63a. When the documents were ready, a

CLA insurance agent set up a “delivery meeting” at

the customer’s home, ostensibly to review and

notarize the documents and help transfer assets into

the trust. Pet. App. 2a-3a, 63a. CLA scheduled similar

“review” meetings every year. Pet. App. 58a, 67a.

At these meetings, CLA agents asked

customers to identify all assets comprising their

estates, representing that CLA needed this

information to assist with funding the living trust and

for estate-planning purposes. Pet. App. 3a, 68a, 91a.

But the agents did not disclose that CLA trained them

to use this information to identify assets that could be

converted into annuity products. Pet. App. 3a, 14a,

65a. As a former CLA agent testified, assisting with

and delivering estate documents caused customers to

place their trust in CLA’s agents, which in turn

allowed them to sell annuities to the customer.

Pet. App. 14a, 65a.

A financial economist testified at trial that the

annuities

CLA

marketed

and

sold

were

“extraordinarily complex,” illiquid, opaque, and

expensive, with an undisclosed “very high

commission” that was “extraordinary” compared with

other financial products. Pet. App. 70a-71a. For

example, whereas other financial products, such as

bonds, mutual funds, or variable annuities typically

charge zero to 4.5 percent commissions, the annuities

sold by CLA charged 10 to 12 percent in commissions.

Pet. App. 70a. The annuities sold by CLA were also

“notable for their illiquidity[,]” with lengthy 10-year

surrender-charge periods, during which time

investors would incur penalties of up to 10 percent of

the value of the annuity for a sale or transfer.

Pet. App. 71a. He testified that purchasers of these

annuities suffered immediate economic loss at the

time of purchase, because the value of the annuities

was “not more than 73 to 86 cents on the dollar when

purchased” and very likely “substantially less than

that” when taking into account “the extreme

illiquidity in these contracts[.]” Pet. App. 73a.

The financial economist further testified that

the “Rube Goldberg”-like mechanics of the

instruments made it virtually impossible for average

purchasers to understand their “true underlying

economics[.]” Pet. App. 72a (internal quotation marks

omitted). The annuities were “the most complex

investments” he had ever seen and “ ‘opaque’ to a

degree that even someone with a math Ph.D. would

have difficulty understanding the likely future

payoffs[.]” Pet. App. 71a. He concluded that “there is

zero chance that a fully informed investor would ever

purchase [these annuities].” Pet. App. 74a. None of

these predatory features was disclosed to consumers.

Pet. App. 71a-73a.

CLA agents were highly motivated to sell

customers these annuities because CLA paid them

only $25 to conduct a delivery meeting, and $10 to

conduct a review meeting, with agents covering their

own travel costs, sometimes driving hours to reach a

customer’s home. Pet. App. 14a, 67a. Agents only

earned additional compensation through commissions

from selling annuities. Pet. App. 14a, 67a. CLA and

its agents received commissions for every annuity

they sold. Pet. App. 74a.

CLA was aware that its tactics were deceiving

consumers, as it received a large number of

complaints from its clients about its Washington

agents. Pet. App. 77a, 101a-02a. Customers testified

that CLA’s agents marketed unsuitable annuities;

failed to disclose material terms of annuities;

misrepresented interest rates; used high-pressure

sales tactics; added products to annuities without

consumer consent; included incorrect income

information in annuity applications to ensure

consumers would meet qualifications; and forged

consumers’ signatures on applications. Pet. App.

75a-80a. CLA took no steps to investigate these

complaints. Pet. App. 78a-80a, 101a-02a.

CLA made millions from its deceptive practices

in Washington. Specifically, it received $2,565,626

from the sale of its Lifetime Estate Plans to

Washington consumers, and its subsequent sale of

financial products generated commissions to CLA of

nearly $3.6 million and to its agents of over $1.8

million. Pet. App. 24a, 54a, 74a, 94a.

In 2009, an attorney whom CLA had attempted

to recruit as a referral attorney warned CLA to

consider whether its practices complied with the

EDDA. Pet. App. 54a, 102a. CLA did not change any

of its practices after receiving the letter. Pet. App. 54a,

102a. The attorney declined to receive referrals from

CLA after concluding its business model could violate

Washington law. Pet. App. 54a, 102a.

The State Trial Court Ruled that CLA’s

Deceptive Scheme Violated Washington’s

Consumer Protection Laws

The Washington Attorney General’s Office

carefully investigated CLA’s conduct over the course

of several years. The Office sent its first civil

investigative demands to CLA in 2013, and ultimately

brought this enforcement action against CLA in 2017

for violations of the Consumer Protection Act and the

EDDA. The State did not seek penalties for CLA’s

conduct prior to November 3, 2015, as provided in a

tolling agreement entered by the parties. Pet. App.

97a n.4.

After deciding several partial summary

judgment motions and holding a bench trial, the trial

court concluded that CLA serially violated the

Consumer Protection Act and the EDDA by engaging

in “a deliberate scheme to develop and exploit leads

for the sale of annuities.” Pet. App. 101a. In detailed

findings of fact and conclusions of law, the trial court

found that CLA “used scare tactics to instill fear in

seniors that they would be left vulnerable and their

families unprotected unless they purchased CLA’s

Lifetime Estate Plan and set up revocable living

trusts, which in turn gave CLA agents access to their

living rooms and their assets to aggressively market

complex annuities.” Pet. App. 101a.

The court ruled that CLA violated the

Consumer Protection Act by misrepresenting probate

law, trust law, federal law, and the relative

advantages

estate-planning

methods

Washington, and by creating a deceptive net

impression that a living trust is needed to protect

assets and heirs. Pet. App. 84a-85a. The court found

further Consumer Protection Act violations based on

CLA’s deceptive marketing of the Lifetime Estate

Plan and creation of a deceptive net impression that

consumers were purchasing robust estate-planning

services, not in-home visits from commissionmotivated insurance agents. Pet. App. 85a-87a. The

trial court determined that CLA also repeatedly

violated the EDDA by offering to gather information

for the preparation of estate distribution documents

at its estate-planning seminars, and gathering such

information both at its estate-planning seminars and

at in-home meetings its agents held with customers.

Pet. App. 87a-92a.

The trial court awarded injunctive relief,

restitution, civil penalties, and fees and costs in favor

of the State for CLA’s violations of the Consumer

Protection Act and the EDDA. Pet. App. 92a-110a. As

restitution for these violations, the court ordered CLA

to return all revenue it received from sales of its

Lifetime Estate Plan ($2,565,626) and sales of

annuities ($3,597,287.93) to Washington consumers.

After carefully analyzing the factors relevant to a civil

penalty award under the Consumer Protection Act,

including CLA’s lack of good faith, harm to the public,

and CLA’s ability to pay, the court imposed a total

civil penalty award of $6,546,000. Pet. App. 96a-105a.

This amount included penalties ranging from $667 to

$2,000 for each of CLA’s thousands of violations of the

Consumer Protection Act. Pet. App. 105a. The court

separately identified statutory penalties awarded for

each type of violation of the Consumer Protection Act

and the EDDA. Pet. App. 105a.

The Washington Court of Appeals Affirms

the Restitution and Penalty Award

Against CLA

The Washington Court of Appeals affirmed

the trial court decision and upheld the trial

court’s restitution award and civil penalties. Pet. App.

23a-27a.

The court upheld the handful of findings of fact

that CLA had challenged2 and all of the trial court’s

legal conclusions, rejecting CLA’s arguments that its

conduct was not deceptive under the Consumer

Protection Act. Pet. App. 1a-28a. The court found that

CLA’s seminars “gave the deceptive net impression

‘that a revocable trust is preferable regardless of

individual circumstances.’ ” Pet. App. 12a. The court

also found that CLA engaged in deceptive practices

when it “indicated to consumers that its purpose at

the in-home meetings was to assist them with their

estate planning process, when in fact its purpose was

to ‘gather lists of assets that could be moved into

annuity products’ and then to sell them these

products.” Pet. App. 14a. It further found that CLA

profited handsomely from this deception, which

“provided CLA with trusting, amenable clients to

visit, making these visits particularly desirable from

a sales perspective.” Pet. App. 14a.

2 One exception, not pertinent here, is that the Court of

Appeals agreed with CLA that the trial court’s finding that CLA’s

workbook does not mention durable powers of attorney was in

error, but found that this error did not affect the court’s

conclusions of law. Pet. App. 9a.

The court similarly held that CLA serially

violated the EDDA, holding that “CLA’s business

model . . . falls squarely within the realm of the

EDDA’s prohibited conduct, as expressed by the

legislature’s statement of intent and the plain

language of the statute.” Pet. App. 20a. In reaching

this conclusion, the Court of Appeals declined to look

beyond the plain meaning of the statute to legislative

history, which CLA claimed showed the legislature

intended to regulate only the unauthorized practice of

law when it enacted the EDDA. Pet. App. 20a. Noting

that the EDDA does not define, regulate, or even

mention the unauthorized practice of law, the court

found that the plain meaning of the statute defines a

violation of the Consumer Protection Act, not the

unauthorized practice of law. Pet. App. 20a.

Relatedly,

the

court

rejected

CLA’s

“misleading” factual contentions that the Attorney

General’s Office implicitly approved of CLA’s business

model, finding that the facts “do not include any

explicit or tacit indication from the [Attorney

General’s Office] that it had concluded CLA’s business

model was lawful[,]” and “neither statutory text,

court guidance, nor agency guidance indicate that

CLA’s interpretation of the law was reasonable.”

Pet. App. 25a-26a.

The court declined to address the First

Amendment issue that CLA mentioned in passing

without any analysis, holding that this was

insufficient under state law to properly raise a

constitutional claim. Pet. App. 22a (citing Health Ins.

Pool v. Health Care Auth., 129 Wash. 2d 504, 511,

919 P.2d 62 (1996) (holding that “naked castings

into the constitutional sea are not sufficient to

command judicial consideration”) (internal quotation

marks omitted)). The appellate court also rejected

CLA’s argument that the EDDA is void for vagueness,

holding that the statute clearly prohibits nonlawyers

from gathering information for the purpose of

preparing estate distribution documents and that

CLA told consumers it was gathering the information

“for that exact purpose[.]” Pet. App. 22a. It held

the EDDA was neither ambiguous nor vague.

Pet. App. 22a.

CLA petitioned the Washington Supreme Court

to review the decision of the Court of Appeals, and the

Washington Supreme Court denied the petition on

February 8, 2023. Pet. App. 29a.

REASONS TO DENY REVIEW

This Court lacks jurisdiction over the issues

raised in CLA’s petition. CLA forfeited its First

Amendment argument in state court, depriving this

Court of jurisdiction over the issue. And CLA lacks

standing to raise its due process vagueness argument

under Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 495 (1982), because its

conduct falls squarely within the plain scope of

Washington’s law, precluding CLA’s challenge that

the law is vague as to others.

Even if it could bring its claims here, CLA fails

to present any basis for review. It fails to identify any

conflict with this Court’s precedent or any Court of

Appeals decision and instead challenges an

intermediate state appellate court’s application of

federal law—a request not worthy of this Court’s

attention under U.S. Supreme Court Rule 10. Beyond

that, this case presents a terrible vehicle to review the

issues raised by CLA because most of its legal

arguments are premised on misrepresentations about

the underlying law, CLA’s conduct, and the conduct of

the Attorney General’s Office, all of which were

rejected by the courts below. CLA does not and cannot

challenge those underlying factual determinations

now. And even setting aside these jurisdictional and

vehicle defects, a decision by this Court would have

little or no impact on the judgment against CLA, most

of which is based on independent and unchallenged

violations of Washington’s Consumer Protection Act.

Moreover, given the uniqueness of the EDDA, by

CLA’s own admission, any opinion on the law would

have limited value as future guidance.

This Court Lacks Jurisdiction to Consider

CLA’s Arguments

This Court should reject CLA’s petition because

it lacks jurisdiction over the federal issues raised.

CLA abandoned its First Amendment claim in its

state court appeal, leading the Washington Court of

Appeals to reject the argument under independent

and adequate state law grounds. And CLA lacks

standing for its facial due process claim because the

EDDA squarely applies to CLA’s conduct as found by

the courts below, precluding any argument that the

law is vague as applied to others.

The Court of Appeals Rejected

CLA’s First Amendment Argument

on Independent and Adequate State

Grounds

CLA forfeited its First Amendment argument

below, depriving this Court of jurisdiction over this

issue. This Court lacks jurisdiction to review a federal

issue on review of a state court judgment “if that

judgment rests on a state-law ground that is both

‘independent’ of the merits of the federal claim and an

‘adequate’ basis for the court’s decision.” Harris v.

Reed, 489 U.S. 255, 260 (1989); Foster v. Chatman,

578 U.S. 488, 497 (2016) (same). A state court

judgment is independent and adequate “if state

substantive law is sufficient to support the judgment

no matter how the federal question is resolved,” or if

the “state courts have found adequate procedural

reasons for refusing to decide the federal question.”

16B Charles Alan Wright et al., Fed. Prac. & Proc.

Juris. § 4019, Westlaw (3d ed. & Apr. 2023 Update);

see also Coleman v. Thompson, 501 U.S. 722, 729

(1991) (holding that independent and adequate state

ground rule applies “whether the state law ground is

substantive or procedural”), holding modified by

Martinez v. Ryan, 566 U.S. 1 (2012). The reason for

the rule is clear: if the “same judgment would be

rendered by the state court after we corrected its

views of federal laws, [this Court’s] review [w]ould

amount to nothing more than an advisory opinion.”

Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945).

The party seeking certiorari bears the burden

of proving that it properly presented a federal issue to

the state courts at every level “at the time and in the

manner required by the state law[.]” Adams v.

Robertson, 520 U.S. 83, 87 (1997) (internal quotation

marks omitted). Accordingly, petitioners seeking

review of a state court judgment must specify “the

stage in the proceedings, both in the court of first

instance and in the appellate courts, when the federal

questions sought to be reviewed were raised; the

method or manner of raising them and the way in

which they were passed on by those courts[.]”

Rule 14(g)(i).

Here, the Washington Court of Appeals applied

long-standing Washington law to determine that CLA

forfeited any First Amendment issue by failing to

present argument beyond a passing reference to a

single commercial speech case. Pet. App. 22a. CLA did

not “attempt to analyze the test articulated in that

case for whether a commercial speech restriction is

permissible” or how that standard applied to this case,

and addressed this issue only in a single paragraph

buried in its due process argument. Pet. App. 22a.

Unsurprisingly, the court below declined to address

the merits, applying well-established state law

holding that a “naked” reference to a constitutional

doctrine does not properly present a constitutional

issue on appeal. Pet. App. 22a (citing Health Ins. Pool,

129 Wash. 2d at 511 (“naked castings into the

constitutional sea are not sufficient to command

judicial consideration and discussion”) (internal

quotation marks omitted)). This Court follows a

similar rule, holding that “discussion of ‘a federal

case, in the midst of an unrelated argument, is

insufficient to inform a state court that it has been

presented with a claim.’ ” Adams, 520 U.S. at 88.

The Washington Court of Appeals’ finding that

CLA failed to properly present a First Amendment

argument rests on independent and adequate state

law grounds, depriving this Court of jurisdiction over

this issue. The lower court’s decision did not depend

on federal law in any way. Herb, 324 U.S. at 125-26.

Nor has CLA argued (much less met its burden of

showing) that Washington courts apply this

procedural rule in an “irregular, arbitrary or

inconsistent manner[,]” as required to show that the

determination is inadequate to sustain the judgment.

Jimmy Swaggart Ministries v. Bd. of Equalization of

California, 493 U.S. 378, 399 (1990) (declining review

of appellant’s constitutional claims because it failed to

substantiate burden of demonstrating that state

grounds were inadequate). And CLA cannot meet this

burden, as there was nothing arbitrary, irregular, or

inconsistent about the Court of Appeals’ rejection of

CLA’s “naked castings into the constitutional sea[.]”

Pet. App. 22a (internal quotation marks omitted)

(citing Health Ins. Pool, 129 Wash. 2d at 511); see also

State v. Johnson, 119 Wash. 2d 167, 171, 829 P.2d

1082 (1992) (holding that “[p]arties raising

constitutional issues must present considered

arguments to this court[:] naked castings into the

constitutional sea are not sufficient to command

judicial consideration and discussion” (internal

quotation marks omitted)); In re Pers. Restraint

Petition of Rhem, 188 Wash. 2d 321, 328, 394 P.3d

367 (2017) (same); Pub. Hosp. Dist. 1 of King Cnty. v.

Univ. of Washington, 182 Wash. App. 34, 49, 327 P.3d

1281 (2014) (same); State v. Bonds, 174 Wash. App.

553, 567, 299 P.3d 663 (2013) (same).

Because any First Amendment ruling by this

Court would have no impact on the state court

judgment that such argument was waived, it would be

purely advisory. This issue is not properly before this

Court.

CLA Lacks Standing to Assert Its

Facial Vagueness Claim

CLA lacks standing on its remaining federal

issue, challenging the EDDA as unconstitutionally

vague. This Court has long recognized that one “who

engages in some conduct that is clearly proscribed

cannot complain of the vagueness of the law as applied

to the conduct of others.” Vill. of Hoffman Ests., 455

U.S. at 495.3 Because CLA’s conduct—as found by the

courts below—falls squarely within the EDDA’s

explicit prohibitions, CLA lacks standing to challenge

the statute based on alleged vagueness of the statute

as applied to others.

The EDDA explicitly prohibits the conduct that

CLA engaged in. Specifically, the EDDA makes it

“unlawful for a person to market estate distribution

documents, directly or indirectly,” unless authorized

to practice law in Washington. Wash. Rev. Code

§ 19.295.020(1). The law defines “market” to include

“every offer . . . to . . . gather information for the

preparation of, or to provide, individualized advice

about, an estate distribution document ” and, in turn,

defines “[g]athering information for the preparation of

an estate distribution document” as “collecting data,

facts, figures, records, and other particulars about a

specific person or persons for the preparation of an

estate distribution document[.]” Wash. Rev. Code

§ 19.295.010(4), (3) (emphases added).

3 The exception to this rule is in First Amendment cases,

which does not apply here given CLA’s forfeiture of that

argument.

Here, CLA argues that the EDDA “bars

virtually all nonlawyers from helping a person collect

information to provide to an attorney for estate

planning services in any circumstance” regardless of

purpose, and is thus vague as applied to, for example,

family members of senior citizens assisting in

gathering estate planning documents. Pet. 14. This

argument is incorrect, but even if it were not, CLA

lacks standing to make it because the courts below

correctly determined that CLA gathered estate

distribution information for the “exact purpose”

prohibited by law. Pet. App. 22a. The Washington

Court of Appeals emphasized that EDDA liability

hinges on “the purpose for gathering the information,

and here the purpose was unambiguously presented

and understood as enabling the preparation of estate

distribution documents.” Pet. App. 19a (emphasis

added). CLA did not challenge these factual findings

below, leading the Washington Court of Appeals to

conclude that the “unchallenged findings and the

record as a whole clearly establish that CLA

represented, and its clients understood, that it was

gathering information for the preparation of estate

distribution documents.” Pet. App. 18a (emphasis

added).

CLA does not and cannot challenge these

factual findings now. Hernandez v. New York, 500

U.S. 352, 366 (1991) (“in the absence of exceptional

circumstances, we would defer to state-court factual

findings, even when those findings relate to a

constitutional issue”). Because the EDDA squarely

proscribes CLA’s conduct, as found by the courts

below, CLA lacks standing to argue that the statute is

vague as to others.

Even If CLA Could Overcome Its

Jurisdictional Obstacles, It Fails to Show

a Circuit Split or Conflict with this Court’s

Cases

CLA does not even muster an allegation of a

conflict with any decision by this Court or a circuit

split warranting review here. See generally Pet. 12-25.

With respect to its vagueness argument, CLA does not

claim that the lower court applied the wrong legal

standard, but only that the court reached the wrong

result, an issue that does not warrant this Court’s

attention. Pet. 12-16. And with respect to the First

Amendment, CLA cannot claim a reviewable conflict

because the court below did not even address the issue

due to CLA’s waiver. Pet. App. 22a. In truth, the

opinion below falls comfortably within this Court’s

jurisprudence on both vagueness and deceptive

commercial speech. The Court should deny review.

CLA Fails to Show Any Conflict

Regarding Its Vagueness Argument

The parties here agree that laws must give fair

notice of conduct that is forbidden or required. Pet. 12

(citing FCC v. Fox Television Stations, Inc., 567 U.S.

239, 253 (2012)). More importantly, so did the lower

court. Pet. App. 21a. In rejecting CLA’s argument, the

court below cited the same standard CLA now cites.

Pet. App. 21a (citing Seven Gables Corp. v. MGM/UA

Ent. Co., 106 Wash. 2d 1, 11, 721 P.2d 1 (1986)). CLA

does not and cannot dispute the lower court’s

recognition that a statute may be void for vagueness

if “persons of common intelligence must guess at its

meaning and differ as to its application.” Pet. App. 21a

(citing Seven Gables, 106 Wash. 2d at 11); see also Fox

Television Stations, Inc., 567 U.S. at 253 (citing same

standard). It instead argues that the lower courts

erred in applying this standard. But a petition “is

rarely granted when the asserted error consists of . . .

misapplication of a properly stated rule of law.” Rule

10. This alone warrants rejection of CLA’s petition.

CLA not only fails to show a reviewable conflict,

it does not grapple with the lower court opinion at all.

It simply repeats arguments about the allegedly

ambiguous meaning of the EDDA that the lower

courts rejected. But there is nothing ambiguous about

the EDDA. Following this Court’s precedent, the

lower court correctly determined that a statute is not

vague “if it is clear what the statute as a whole

prohibits,” and that the court may look to a statute’s

announced purpose in making that assessment. Pet.

App. 21a (citing Seven Gables, 106 Wash. 2d at 11,

which in turn cites Grayned v. Rockford, 408 U.S. 104,

108 (1972)). Here, the plain language of the EDDA

prohibits nonlawyers from gathering information for

the purpose of preparing estate distribution

documents. Pet. App. 22a; see also Wash. Rev. Code

§§ 19.295.010(4), .020(1). The Washington legislature

made clear that it targeted this conduct to prevent

unscrupulous actors from using living trusts as a

marketing tool for purposes of gathering information

for estate distribution documents, which the

legislature deemed a “deceptive means of obtaining

personal asset information and of developing and

generating leads for sales to senior citizens.” Wash.

Rev. Code § 19.295.005 (quoted at Pet. App. 17a). In

rejecting CLA’s argument that the statute applies

only when nonlawyers prepare estate distribution

documents, the lower court properly declined to

“add words where the legislature has chosen not to

include them.” Pet. App. 19a (quoting Rest. Dev., Inc.

v. Cananwill, Inc., 150 Wash. 2d 674, 682, 80 P.3d

598 (2003)).

The statute’s express prohibition and express

purpose describe CLA’s predatory business model to a

T. CLA does not dispute the lower courts’ findings

that, under false pretenses of gathering information

for the purpose of preparing estate distribution

documents, CLA obtained financial information from

senior citizens to generate sales leads for its insurance

products. Pet. App. 16a-19a. Nor does it dispute that

these insurance products were “extraordinarily

complex” and “opaque,” included an “extraordinarily”

high sales commission, and resulted in immediate

economic loss to the seniors who purchased them.

Pet. App. 3a.

CLA went so far as to argue below that it did

not violate the EDDA because it had deceived its

customers; i.e., while CLA told customers it was

gathering financial information for the purpose of

preparing estate distribution documents, its actual

purpose was to develop sales leads. Pet. App. 18a. In

light of the lower court’s findings and its own

admissions, CLA’s argument that it had no notice that

its conduct violated the EDDA almost beggars belief.

The lower court’s consideration of, and

repeated reference to, the statute’s text and intent

also answers CLA’s claims that the statute could be

applied to a family member gathering information to

assist another family member in seeking legal advice.

See Pet. 14; Pet. App. 20a, 22a. The statute prohibits

“marketing” of estate distribution documents and

the practice of using living trusts as a marketing

tool to obtain sales leads as a per se violation of

the Consumer Protection Act. Wash. Rev. Code

§§ 19.295.005, .020, .030. The Consumer Protection

Act, in turn, applies only to activities “in trade or

commerce.” Wash. Rev. Code § 19.295.020. It has no

application to noncommercial interactions between

family members and friends. As the lower court

correctly determined, the EDDA “is unambiguous and

not vague” as applied to CLA’s conduct. Pet. App. 22a.

CLA relies almost exclusively on this Court’s

opinion in Fox Television Stations, Inc., 567 U.S. 239,

to argue that the EDDA is unconstitutionally vague.

Pet. 12-15. But even a cursory glance at that opinion

shows it has no application here. First, unlike this

case, Fox Television addressed inherently imprecise

and broad statutory language prohibiting “obscene,

indecent, or profane” material. Fox Television

Stations, Inc., 567 U.S. at 243 (quoting 18 U.S.C.

§ 1464). Second, unlike this case, the Court addressed

a regulatory agency that had dramatically departed

from its own prior, published guidance, which gave no

notice to broadcasters that “fleeting expletives and a

brief moment of indecency” would constitute

actionable indecency. Id. at 254. The published

guidance instead informed broadcasters that a key

consideration in determining a violation was whether

the material dwelled on or repeated at length

the offending depiction. Id. Further adding to the

ambiguity, numerous past enforcement actions had

not penalized isolated and brief moments of offending

material. Id. at 254, 257.

Here, by contrast, the statutory language is not

broad or imprecise, and CLA’s claimed change in

enforcement standards refers to a selective reading of

the legislative history in which the Attorney General’s

Office provided testimony before the statute was

enacted. Pet. 6, 15. CLA cites no cases in which

legislative testimony supports a vagueness challenge,

and the State is aware of none. To the contrary, such

legislative history is generally irrelevant to statutory

construction under Washington law unless the

statutory language is itself ambiguous. Western

Telepage, Inc. v. City of Tacoma Dep’t of Fin., 140

Wash. 2d 599, 608-09, 998 P.2d 884 (2000). Moreover,

the legislature amended the bill after the legislative

hearing cited by CLA to add the statement of intent

relied on by the Court of Appeals. That statement of

intent, in turn, specifies that the purpose of the EDDA

was to prohibit precisely the kind of conduct that

CLA engaged in here. See Washington State

Legislature, Bill Information, HB 1441 (2007-08),

https://app.leg.wa.gov/billsummary?BillNumber=

1441&Year=2007&Initiative=false (showing public

hearing date of Jan. 25, 2023, substitute bill Jan. 29,

2023, and including links to both original bill and

substitute bill). More broadly, given that the goal of

the vagueness doctrine is to ensure that the average

individual can understand what a statute proscribes,

it would be bizarre to hold that a statute’s plain

meaning can become ambiguous based on legislative

history of which no average citizen would be aware.

CLA’s citation to Christopher v. SmithKline

Beecham Corp., 567 U.S. 142, 157-58 (2012), is

similarly unhelpful. Pet. 15. SmithKline addressed

whether the Court should grant controlling deference

to a regulatory agency’s interpretation of a statute,

not constitutional vagueness. Moreover, the statutes

and regulations at issue in SmithKline provided no

notice to regulated entities of prohibited conduct, and

the Department of Labor failed to take any

enforcement action for decades despite a well-known

industry practice, causing the Court to conclude that

“[o]ther than acquiescence, no explanation for the

DOL’s inaction is plausible.” SmithKline Beecham

Corp., 567 U.S. at 158. Here, in contrast, the lower

court found that, contrary to CLA’s “misleading”

characterizations, there was no “explicit or tacit

indication from the [Attorney General’s Office] that it

had concluded CLA’s business model was lawful[,]”

and “neither statutory text, court guidance, nor

agency guidance indicate that CLA’s interpretation of

the law was reasonable.” Pet. App. 25a-26a.

In sum, CLA fails to show any conflict with this

Court’s precedent or any other reason that would

justify this Court’s review.

CLA Fails to Show Any Conflict

Regarding Its First Amendment

Argument

CLA also cannot show a reviewable conflict

regarding the First Amendment claim because the

lower court declined to address the issue due to CLA’s

forfeiture of it under well-settled Washington law.

Pet. App. 22a. CLA’s failure to identify any conflict

with this Court’s First Amendment jurisprudence is

thus understandable, but no less fatal to its argument

that the Court should accept review.

CLA largely ignores its forfeiture and

instead argues that the courts below reached the

wrong result. But that is no reason for this Court’s

review. See Rule 10. CLA also repeatedly argues

against a strawman version of the EDDA, suggesting

the law prohibits innocent gathering of information in

a non-commercial context. See, e.g., Pet. 17, 20, 25.

But, as explained above, the law applies only to

“marketing” in the conduct of “trade or commerce.”

Supra at 24-25. Moreover, the opinion below

construed the statute in light of its express intent to

prevent the gathering of information as “a deceptive

means of obtaining personal asset information and of

developing and generating leads for sales to senior

citizens[.]” Pet. App. 18a (emphasis in original)

(quoting Wash. Rev. Code § 19.295.005); see also

Pet. App. 20a (“CLA’s business model therefore falls

squarely within the realm of the EDDA’s prohibited

conduct, as expressed by the legislature’s statement of

intent and the plain language of the statute.”).

CLA’s attempt to apply non-commercial free speech

cases here thus fails.

Moreover, none of the cases CLA discusses are

analogous. Here, the legislature banned a practice

notoriously abused by unscrupulous actors to take

advantage of senior citizens, and the law was applied

to a business engaging in precisely such conduct. This

case is thus even easier than cases in which this Court

allowed regulation of commercial speech because of

the danger of deceptive or other harmful conduct even

where the specific regulated communication might not

necessarily involve deception. See, e.g., Ohralik v.

Ohio State Bar Ass’n, 436 U.S. 447, 456-57 (1978)

(upholding attorney discipline for in-person

solicitations and cataloging litany of other regulated

commercial communications upheld by the Court

such as exchange of information about securities,

corporate proxy statements, the exchange of price

and production information among competitors, and

employer threats of retaliation). Here, the law is

intended to protect against precisely the sort of

deception wielded by CLA.

CLA Fails to Allege Any Circuit Split

In addition to failing to identify a conflict with

this Court’s precedent, CLA fails to identify any split

among the circuit courts or state supreme courts

regarding the questions presented, and thus presents

no reason for this Court to grant review on that basis.

This Case Is a Poor Vehicle to Review

State Consumer Protection Laws

Certiorari should also be denied because this

case presents an exceptionally poor vehicle for

examining the constitutionality of state consumer

protection laws for at least three reasons.

First, CLA’s arguments are largely predicated

on factual assertions that were rejected by the courts

below in rulings that have not been challenged by

CLA here. For example, CLA relies heavily on its own

theories about the legislature’s intent in enacting the

EDDA, which the lower court rejected as inconsistent

with the actual statements of legislative intent in the

statute. Compare Pet. 5-8, 15 with Pet. App. 20a-22a.

Similarly, CLA relies on arguments about the

Attorney General’s supposed tacit acceptance of CLA’s

business model to argue “unfair surprise” here, but

the lower court rejected these arguments as

“misleading” and inconsistent with the facts, which

“do not include any explicit or tacit indication from the

[Attorney General’s Office] that it had concluded

CLA’s business model was lawful[.]” Pet. App.

25a-26a. CLA’s (waived) First Amendment arguments

similarly rely on the false premise that its underlying

speech was truthful and non-deceptive, which is

contradicted by extensive unchallenged findings

below detailing CLA’s misrepresentations and

deceptive conduct. E.g., Pet. App. 4a-20a, 84a-92a.

CLA’s vagueness argument also relies on its

argument that CLA was never involved in preparing

estate planning documents, but the lower courts found

to the contrary, citing offers by CLA in its own

workbook to “assist consumers in estate planning to

protect their assets and heirs, . . . provide access to

attorneys to draft estate documents, and support and

coordinate the work of the attorneys.” Pet. App. 9a-10a

(alteration in original) (emphasis added). Arguments

premised on facts rejected by the lower courts do

not provide a suitable vehicle for examining

important consumer protection laws. Hernandez,

500 U.S. at 366.

Second, any impact on the judgment from a

decision by this Court would be short-lived at most.

Even if this Court struck down the EDDA, nothing

would prevent the courts below from determining on

remand that CLA is liable for these same acts under

the Consumer Protection Act, warranting precisely

the same statutory remedies.

The acts proscribed by the EDDA are

“unfair or deceptive act[s] in trade or commerce

and an unfair method of competition for

purposes of applying the consumer protection act.”

Wash. Rev. Code § 19.295.030. The lower court’s

factual findings support a determination that

CLA used offers to senior citizens to gather estate

distribution documents as a means of establishing

trust relationships that CLA deceptively exploited to

gain information about financial assets that could be

converted into CLA’s expensive high-commission

financial products that no fully informed, reasonable

investor would ever purchase. Under Washington law,

each “deceptive act is a separate violation” of the

Consumer Protection Act, State v. Mandatory Poster

Agency, Inc., 199 Wash. App. 506, 525, 398 P.3d 1271

(2017), subjecting CLA to the same statutory

penalties with or without the EDDA. As such, even

if the EDDA were struck down, it would likely

have little or no impact on CLA’s ultimate liability in

this case.

Third, by CLA’s own admission, any decision

here would have no application to other states’

consumer protection laws. Indeed, CLA’s assertion

that no other state has a law similar to the EDDA

(Pet. 24) undermines its argument that this case

would present a good vehicle to examine other states’

consumer protection laws. And CLA never explains

how a decision by this Court addressing a specialized

statute like the EDDA would have any application to

generalized consumer protection statutes prohibiting

unfair or deceptive trade practices.

Given CLA’s core reliance on facts decided

against it, the limited stakes at issue here even for

CLA, and the limited relevance of this case as a guide

to states generally, this case presents a terrible

vehicle for addressing the constitutionality of state

consumer protection laws.

CONCLUSION

The petition for writ of certiorari should be

denied.

RESPECTFULLY SUBMITTED.