1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 JOYCE WHITE, et al., CASE NO. C25-1361-KKE 8
Plaintiff(s), ORDER ON MOTION TO DISMISS 9 v.
10 CHIME FINANCIAL INC.,
11 Defendant(s).
12 Plaintiff Joyce White brings this putative class action against Defendant Chime Financial 13 Inc. (“Chime”), asserting claims under Washington’s Commercial Electronic Mail Act (“CEMA”) 14 and Washington’s Consumer Protection Act (“CPA”). Presently before the Court is Chime’s 15 motion to dismiss the consolidated class action complaint (Dkt No. 18) and its request for 16 incorporation by reference and judicial notice of certain documents. Dkt. Nos. 25, 26. The 17 motions have been fully briefed, and the Court has considered the oral argument of counsel. Dkt. 18 Nos. 25, 26, 31, 32, 35, 36, 43. For the reasons below, the Court grants the motion for 19 incorporation by reference and denies the motion to dismiss. 20 I. BACKGROUND 21 Chime is a financial technology company that offers various banking products and services 22 through both its website and mobile application. Dkt. No. 18 ¶ 1. Chime promotes the use of its 23 banking products and services through its referral marketing program, which includes the refer-a- 24 1 friend (“RAF”) program. Id. ¶ 17. Using the Chime mobile application, in “just a few taps,” 2 Chime users can select one or more contacts from their phone and transmit a pre-populated 3 marketing text message, which includes a customized referral link prompting recipients to
4 download the Chime app. Id. ¶ 18. 5 White alleges that the RAF program is “prominently promoted” within the mobile 6 application, being featured at the top of the main application page. See id. ¶ 18 (Figure 1: screen 7 capture of top of account page showing “Get $100” button). Upon tapping the “Get $100” button, 8 users are taken to a page that allows them to transmit a pre-written marketing message to the user’s 9 phone contacts. See id. ¶ 20. Next to each contact’s name is another “Get $100” button. Id. When 10 the user taps “Get $100” next to a particular contact’s name, the Chime application opens the text 11 messaging application on the phone, and inserts a pre-composed marketing message and referral 12 link. Id. ¶ 21. “The only additional action the user must take” is to tap the “send message” icon.
13 Id. White, who received a RAF text message without her consent, alleges that Chime’s RAF 14 program violates both the CEMA and CPA. Id. ¶ 4. 15 Chime filed a motion to dismiss, as well as a motion for judicial notice and incorporation 16 by reference. Dkt. No. 25. After considering the parties’ briefing and oral argument, the Court 17 grants the motion for incorporation by reference and denies the motion to dismiss for the following 18 reasons. 19 II. ANALYSIS 20 A. Legal Standard 21 In evaluating a motion to dismiss under Rule 12(b)(6), a court examines the complaint to 22 determine whether, assuming the facts alleged are true, the plaintiff has stated “a claim to relief
23 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 24 v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible if “the plaintiff pleads factual content 1 that allows the court to draw the reasonable inference that the defendant is liable for the misconduct 2 alleged.” Id. 3 B. Judicial Notice and Incorporation by Reference
4 Chime asks the Court to consider the following documents under the doctrines of 5 incorporation-by-reference or judicial notice: Chime’s May 13, 2025 Form S-1 Registration 6 Statement; Chime’s March 24, 2025 blog post titled “Chime’s Referral Program: Everything You 7 Need to Know”; and former plaintiff Charles Taft’s original complaint. Dkt. No. 26. 8 “Generally, district courts may not consider material outside the pleadings when assessing 9 the sufficiency of a complaint[.]” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th 10 Cir. 2018). “When ‘matters outside the pleading are presented to and not excluded by the court,’ 11 the 12(b)(6) motion converts into a motion for summary judgment under Rule 56.” Id. (quoting 12 Fed. R. Civ. P. 12(d)). “There are two exceptions to this rule: the incorporation-by-reference
13 doctrine, and judicial notice under Federal Rule of Evidence 201.” Id. 14 The incorporation-by-reference doctrine “treats certain documents as though they are part 15 of the complaint itself” and is intended to “prevent[] plaintiffs from selecting only portions of 16 documents that support their claims, while omitting portions of those very documents that 17 weaken—or doom—their claims.” Id. at 1002. While a defendant may seek to incorporate a 18 document into the complaint by reference where “the plaintiff refers extensively” to it or “the 19 document forms the basis of the plaintiff’s claim,” “the mere mention of the existence of a 20 document is insufficient to incorporate the contents of a document.” Id. (first quoting United States 21 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003), and then quoting Coto Settlement v. Eisenberg, 593 22 F.3d 1031, 1038 (9th Cir. 2010)).
23 “Judicial notice under Rule 201 permits a court to notice an adjudicative fact if it is ‘not 24 subject to reasonable dispute.’” Id. at 999 (quoting Fed. R. Evid. 201(b)). “A fact is ‘not subject 1 to reasonable dispute’ if it is ‘generally known,’ or ‘can be accurately and readily determined from 2 sources whose accuracy cannot reasonably be questioned.’” Id. (quoting Fed. R. Evid. 201(b)(1)– 3 (2)). Though a court may take judicial notice of undisputed facts contained in public records, it
4 “cannot take judicial notice of disputed facts contained in such public records.” Id. 5 1. The Court will take judicial notice of former plaintiff Taft Charles’s complaint. 6 Chime asks the Court to take judicial notice of former plaintiff Taft Charles’s previously- 7 filed complaint. Dkt. No. 26 at 4. Plaintiff does not object to the Court considering Charles’s 8 original complaint (Dkt. No. 32 at 3), and thus, the Court grants Chime’s motion for judicial notice 9 of that document. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 10 2006) (taking judicial notice of pleadings and documents filed in parallel litigation, as they were 11 “readily verifiable and, therefore, the proper subject of judicial notice”). 12 2. The amended complaint incorporates Chime’s May 13, 2025 Form S-1 Registration
13 Statement and March 24, 2025 RAF Blog Post by reference. 14 Chime also asks the Court to consider, through either incorporation-by-reference or judicial 15 notice, its May 13, 2025 Form S-1 Registration Statement, filed with the Securities and Exchange 16 Commission, as well as its March 24, 2025 blog post detailing its RAF program. Dkt. No. 26 at 17 3–4. White counters that because her claims do not rely on the existence of either the S-1 18 Registration statement or the blog post, neither document is properly subject to incorporation-by- 19 reference. Dkt. No. 32 at 3–4. She also opposes judicial notice of the documents, arguing that 20 Chime cannot “gesture[] at entire documents” through incorporation-by-reference or judicial 21 notice without explaining how “those documents demonstrate that the allegations are inaccurate 22 or untrue.” Id. However, because the amended complaint references and includes links to both
23 Chime’s S-1 Registration Statement and its blog post and relies on facts stated therein to support 24 White’s claims, see Dkt. No. 18 at 2 n.2, 15 n.6, both documents are properly considered under 1 the incorporation-by-reference doctrine. See, e.g., Smith v. YETI Coolers, LLC, 754 F. Supp. 3d 2 933, 941 n.2 (N.D. Cal. 2024) (finding documents incorporated by reference “because Plaintiff’s 3 complaint makes allegations regarding [their] existence”); also Dfinity Found v. Meta Platforms,
4 Inc., 22-CV-2632-CRB, 2022 WL 16857036, at *1 n.1 (N.D. Cal. Nov. 10, 2022) (same where 5 document was “quoted in and linked in the complaint”). 6 C. White Has Stated Claims for Violation of CEMA and the CPA.1 7 CEMA imposes liability for persons conducting business in Washington who “initiate or 8 assist” in transmitting a commercial text message to a telephone number assigned to a Washington 9 resident’s cell phone. WASH. REV. CODE § 19.190.060(1). CEMA defines “assist the 10 transmission” of a text message as the provision of “substantial assistance or support which enables 11 any person to formulate, compose, send, originate, initiate, or transmit” a commercial text message 12 “when the person providing the assistance knows or consciously avoids knowing that the initiator
13 of the [text message]” will or intends to violate the CPA. Id. § 19.190.010(1). CEMA specifies 14 that the practice of sending such a commercial text message as “an unfair or deceptive act in trade 15 or commerce and an unfair method of competition for the purpose of applying the [CPA].” Id. § 16 19.190.060(2). 17 White’s complaint alleges that Chime both initiated and, through the RAF program, 18 assisted its customers in transmitting commercial text messages in violation of CEMA. Dkt. No. 19 18 ¶¶ 13, 28. In support of her allegations, White highlights several of Chime’s mobile application 20 features, including “Get $100” buttons that appear throughout the application, including next to 21 users’ phone contacts (see Dkt. No. 18 ¶¶ 19–24). When a user clicks a “Get $100” button, they 22 1 A violation of CEMA “automatically constitutes a CPA violation.” Moore v. Robinhood Fin. LLC, 2:21-CV- 23 01571-BJR, 2022 WL 3082969, at *2 (W.D. Wash. Aug. 3, 2022) (citing Wright v. Lyft, Inc., 406 P.3d 1149, 1153 (Wash. 2017)); see also Jensen v. Capital One Fin. Corp., C24-0727-KKE, 2025 WL 606194, at *5 (W.D. Wash. Feb. 25, 2025) (Plaintiff’s “CPA claim and CEMA claim rise and fall together”). Thus, the Court analyzes the 24 motion to dismiss under CEMA. 1 initiate pre-written text messages referring their contacts to use Chime. See Dkt. No. 18 ¶ 21. 2 Such features, in White’s view, amount to substantial assistance to Chime’s users in sending 3 referral texts. In the alternative, White posits that Chime users who use the referral program “act
4 as agents of Chime,” and thus, Chime itself initiates transmission of the messages in violation of 5 CEMA. Dkt. No. 18 ¶ 30. 2 6 Chime makes three arguments in support of its motion to dismiss. First, Chime contends 7 its RAF conduct falls within CEMA’s exception for activity related to a product with a 8 “commercially significant use.” Dkt. No. 25 at 9–12. Chime next argues that Plaintiff cannot 9 show it assisted the transmission of text messages because she does not plausibly allege CEMA’s 10 knowledge requirement. Id. at 12–15. Finally, Chime suggests that, given CEMA’s legislative 11 purpose, the Court should not read its “assistance” provision as applying to its RAF program. Id. 12 at 15–16. The Court considers each of these arguments in turn. 13 1. Chime’s alleged conduct does not fall within CEMA’s exception for activity related 14 to a product with a “commercially significant use.” 15 Chime argues that its RAF program is expressly excluded from CEMA’s definition of 16 “assist the transmission,” and thus, it cannot be subject to CEMA liability for RAF text messages, 17 pointing to a 2005 amendment that excepts activities which constitute commercially significant 18 uses other than to violate CEMA. Dkt. No. 25 at 15 (citing WASH. REV. CODE § 19.190.010(1)(b)). 19 Chime argues this amendment reflects the legislature’s “express intent” to limit “secondary 20 liability” of businesses such as Chime for facilitating communications between third parties. Id. 21 In Chime’s view, the RAF program serves a “commercially significant use” other than to violate 22 2 Because the Court finds that White’s complaint states a CEMA claim under a theory of substantial assistance, the 23 Court need not assess whether the initiation/agency theory is also plausible. See Fed. R. Civ. P. 8(d)(2); Floyd Blinsky Trucking, Inc. v. Navistar, Inc., No. C15-5467 BHS, 2020 WL 7043299, at *2 (W.D. Wash. Dec. 1, 2020) (finding it improper to dismiss an alternate theory of liability via a motion to dismiss for failure to state a claim, where one theory 24 has been sufficiently pleaded). 1 CEMA because it “fosters the provision of access to liquidity and other banking products and 2 services through trusted community connections and is integral to Chime’s business goals,” and is 3 thus exempted under Wash. Rev. Code § 19.190.010(1)(b). Dkt. No. 25 at 15. In response, White
4 argues that the CEMA exceptions under Wash. Rev. Code § 19.190.010(1)(a)–(b) were meant 5 primarily to protect telecommunications service providers, and that Chime’s construction of the 6 exceptions would swallow the rule. For the reasons below, the Court agrees with White and finds 7 that the RAF program does not fit within either CEMA exception. 8 When interpreting a statute, a federal court must “determine what meaning the state’s 9 highest court would give to the law,” and thus, must “follow the state’s rules of statutory 10 interpretation.” Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 998 (9th Cir. 2017) (quoting 11 Bass v. Cnty. of Butte, 458 F.3d 978, 981 (9th Cir. 2006)). Under Washington law, the 12 “fundamental objective” of statutory interpretation “is to ascertain and carry out the Legislature’s
13 intent, and if the statute’s meaning is plain on its face, then the court must give effect to that plain 14 meaning as an expression of legislative intent.” Thurston Cnty. ex rel. Snaza v. City of Olympia, 15 440 P.3d 988, 991 (Wash. 2019) (citation omitted). Where the language in a statute is ambiguous 16 and “remains susceptible to more than one reasonable meaning,” the Court resorts to the statute’s 17 legislative history. Dep’t of Ecology v. Campbell & Gwinn, LLC, 43 P.3d 4, 10 (Wash. 2002). 18 The Washington Supreme Court has instructed courts to construe consumer protection statutes 19 such as CEMA “liberally in favor of the consumers they aim to protect.” Jametsky v. Olsen, 317 20 P.3d 1003, 1007 (Wash. 2014). The Court begins its inquiry with the plain language of the statute. 21 As noted above, CEMA carves out two exceptions to liability for conduct that would 22 otherwise “assist the transmission” of an unsolicited text message in violation of CEMA:
23 (a) Activities of an electronic mail service provider or other entity who provides intermediary transmission service in sending or receiving electronic mail, or 24 1 provides to users of electronic mail services the ability to send, receive, or compose electronic mail; or 2 (b) activities of any entity related to the design, manufacture, or distribution of any 3 technology, product, or component that has a commercially significant use other than to violate or circumvent this section. 4 WASH. REV. CODE § 19.190.010(1)(a)–(b). The Washington legislature added these exceptions as 5 part of a series of amendments to CEMA in 2005. See 2005 Wash. Laws Ch. 378 §§ 1–5. 6 Subsection (a) applies to the “[a]ctivities of an email service provider” or any other entity 7 “who provides intermediary transmission service in sending or receiving electronic mail.” WASH. 8 REV. CODE § 19.190.010(1)(a). Subsection (b)—on which Chime relies—applies to the activities 9 of “any entity related to the design, manufacture, or distribution of any technology, product or 10 component that has a commercially significant use other than to violate [CEMA].” Id. § 11 19.190.010(1)(b). At oral argument, White asserted that the express reference to email service 12 providers in subsection (a), taken together with the legislative history and structure of the statute, 13 indicates that the legislature intended subsection (b) to primarily apply to telecommunications 14 service providers. Chime counters that subsection (b) applies to “any entity” and provides no limit 15 as to which alternate uses are “commercially significant” enough to trigger the exception. 16 Though the statute itself is not especially clear, the Court finds White’s interpretation more 17 persuasive. Washington courts will not “construe statutory text as ‘superfluous, void, or 18 insignificant’ if any other reasonable interpretation exists.” Freedom Found. v. Teamsters Loc. 19 117 Segregated Fund, 480 P.3d 1119, 1128 (Wash. 2021) (quoting Ralph v. Dep’t of Nat. Res., 20 343 P.3d 342, 345 (Wash. 2014)). Chime’s reading of subsection (b) would mean that any 21 company could avoid liability for communications that violate CEMA by claiming some alternate 22 use, so long as that use is “commercially significant.” This broad construction would render 23 CEMA’s general prohibition on commercial text messages superfluous and obviate the need for 24 1 subsection (a). See Qwest Corp. v. City of Kent, 139 P.3d 1091, 1093 (Wash. 2006) (rejecting 2 interpretation of statute that would result in an exception swallowing the rule). Such an expansive 3 approach would also contravene the required liberal construction of consumer protection laws.
4 Jametsky, 317 P.3d at 1007. 5 At the same time, as Chime observed at oral argument, subsection (b) must be read to have 6 some meaning. Yet the statute does not clearly specify what entities subsection (b) protects or 7 what types of activities “related to the design, manufacture, or distribution of any technology, 8 product or component” are “commercially significant.” To resolve this ambiguity, the Court looks 9 to CEMA’s legislative history. See Campbell & Gwinn, LLC, 43 P.3d at 10. 10 Between 2003 and 2005, the Washington legislature twice amended CEMA to address 11 emerging telecommunications technologies and related issues. First, in 2003, the legislature 12 amended the statute to include text messaging. 2003 Wash. Laws 137 § 1. The bill report of the
13 House Committee on Technology, Telecommunications & Energy summarized the impact of the 14 2003 amendments as “Prohibit[ing] businesses in the state of Washington from sending 15 commercial electronic text messages to a telephone number assigned to a Washington resident for 16 cellular or page service equipped with short message capability.” Dkt. No. 25-1 at 20. The bill 17 report further “clarifie[d] that the cellular or pager service provider is not liable for merely acting 18 as an intermediary,” but nevertheless “may be liable if they provide assistance knowing that 19 messages are being sent in violation of the law.” Id. at 21–22. The report acknowledged that the 20 2003 amendments were drafted to address the fact that “text messages sent to cellular phones or 21 pagers” did not, at that time, “fall within current regulations and restrictions.” Id. at 20. 22 In 2005, the legislature again amended CEMA to address e-mail and the internet. See Dkt.
23 No. 25-1 at 13–18 (legislature adding, among other things, definitions of “Electronic mail 24 message” and “Internet,” as well as a prohibition on phishing). These amendments included the 1 “assist the transmission” exceptions now at issue. Although the legislative history of these 2 exceptions is scant, the legislature’s notes about the exceptions read: “EFFECT: Excludes 3 intermediary e-mail providers from liability under this act. Clarifies that an individual may only
4 bring an action against a person or entity that directly violates this act.” Dkt. No. 25-1 at 19. 5 Although Chime asserts that the exceptions were intended to provide businesses like Chime 6 protection from “secondary liability,” the plain language of both the legislature’s notes and the 7 statute’s text more narrowly express an intent to provide protection to telecommunications 8 intermediaries—that is, entities that provide a product or service that CEMA violators use to send 9 unsolicited messages. See Dkt. No. 25-1 at 12 (2003 amendments providing protection from 10 liability to cellular or pager services “for serving merely as an intermediary between the sender 11 and the recipient”); id. at 19 (2005 legislative notes explaining the “assist the transmission” 12 exceptions were meant to “[e]xclude[] intermediary e-mail service providers from liability” and
13 clarify that liability attaches only where “a person or entity [] directly violates” CEMA). 14 Chime asserts that the RAF program nonetheless satisfies subsection (b) because it has a 15 “commercially significant use”; namely, “to let Chime members share Chime’s features in a 16 trusted, person-to-person setting.” Dkt. No. 25 at 15. This argument fails for two reasons. First, 17 as discussed above, the legislative history supports White’s claim that the term “commercially 18 significant use” is intended to apply to products and technologies similar to email, cellular, and 19 pager services, or other telecommunications services, which were the focus of the legislature when 20 it drafted the amendments. Nowhere in the legislative history did the Washington legislature 21 express an intent to protect other types of entities (such as banks or financial technology companies 22 like Chime), or to exempt from CEMA a bank’s referral program (even as described by Chime).
23 Second, even if the exceptions were not limited to telecommunications providers and 24 similar technologies, Chime’s claim that its RAF program itself is a commercially significant use 1 is insufficient, at this stage, to defeat White’s allegations that the program directly violates 2 CEMA.3 Moreover, it is unclear how Chime’s claimed “commercially significant uses” differ 3 from the features of any refer-a-friend program. As another judge in this district observed, “[w]ere 4 the Court to apply [this] broad reading of the exemption[,] almost every [product] would be 5 excluded from liability” as most products could be said to “serve a purpose other than to violate 6 CEMA.” Bottoms v. Block, Inc., 23-1969 MJP, 2024 WL 1931690, at *5 (W.D. Wash. May 2, 7 2024).4 And despite Chime’s description of its RAF program, White plausibly alleges the RAF 8 texts violated CEMA because they “promot[ed] [Chime’s] products and services[.]” Dkt. No. 18 9 ¶ 50. Chime’s claim that some customers view the RAF positively does not, at the motion-to- 10 dismiss stage, undermine White’s own well-pleaded allegations that the text messages were 11 unsolicited and commercial in nature. 12 Finally, Chime argues that White herself acknowledges that there is a “primary purpose of 13 the [RAF] program that is not to violate or circumvent CEMA.” Dkt. No. 35 at 7. In support of 14 this argument, Chime points to White’s complaint, which alleges: 15 The primary purpose of the message and the accompanying hyperlink is to induce the recipient to funnel earnings to a Chime-affiliated checking account via direct 16 deposit and access those funds using a Chime Visa Debit Card, which generates revenue for Chime in the form of, inter alia, interchange fees and ATM fees. 17 3 Notwithstanding protection for secondary liability, the Washington legislature contemplated that even email and 18 cellular service providers could still be held liable under CEMA where their actions directly violate the statute. See Dkt. No. 25-1 at 19, 22. Thus, even assuming, for the sake of argument, that the RAF program constitutes a technology, product or component with a commercially significant use, Chime could still be liable for any direct 19 CEMA violations such as those alleged by White.
20 4 Chime attempts to distinguish this case from Bottoms v. Block, Inc., 23-1969 MJP, 2024 WL 1931690 (W.D. Wash. May 2, 2024). Dkt. No. 25 at 16–17. In Block, as here, the plaintiff alleged that the defendant’s a refer-a- 21 friend program violated CEMA’s prohibition against assisting the transmission of commercial text messages. 2024 WL 1931690, at *2–3. In its motion to dismiss, the Block defendant argued that the subsection (b) exception applied because its phone application, which was used to send referral messages, had commercially significant uses other 22 than to violate CEMA. Id. at *5. The Block court denied the motion to dismiss because the defendant failed to show that the refer-a-friend program itself—as opposed to the phone application—had a commercially significant use 23 other than to violate CEMA. Id. Chime argues Block is distinguishable because Chime’s RAF itself has a commercially significant use other than to violate CEMA. Dkt. No. 25 at 16–17. But Chime’s factual claims about the value of the RAF are not properly before the Court on a motion to dismiss. As such, Block’s reasoning applies 24 equally here. 2024 WL 1931690, at *5. 1 Dkt. No. 35 at 7 (citing Dkt. No. 18 ¶ 63). The Court disagrees that this allegation concedes the 2 RAF program is a “technology, product, or component with a commercially significant use” such 3 that § 19.190.010(1)(b) applies. Moreover, this portion of the complaint explains the purpose of 4 the messages that the Chime application pre-populates, not the purpose of the RAF program itself. 5 Id. Regardless, even if the purpose of the RAF program is to generate revenue for Chime, that fact 6 alone does not preclude the RAF program from otherwise violating CEMA. 7 In sum, the exceptions in §§ 19.190.010(1)(a)–(b) do not apply to Chime’s RAF program. 8 2. White sufficiently alleges Chime knew or avoided knowing its users sent messages 9 without consent, in violation of CEMA. 10 CEMA defines assisting in the transmission as 11 [A]ctions taken by a person to provide substantial assistance or support which 12 enables any person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message or a commercial electronic text message when 13 the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message or the commercial electronic 14 text message is engaged, or intends to engage, in any practice that violates the consumer protection act. 15 WASH. REV. CODE § 19.190.010(1). 16 White alleges that Chime knows or consciously avoids knowing whether its users send 17 RAF text messages without obtaining the recipients’ clear and affirmative consent in advance, in 18 violation of CEMA. Dkt. No. 18 ¶ 29 (citing WASH. REV. CODE § 19.190.070). Chime counters 19 with several reasons that White has not plausibly alleged that Chime “knew or consciously avoided 20 knowing that the senders … were engaged or intending to engage in a practice violating the CPA 21 when they sent the texts.” Dkt. No. 25 at 12 (citing Moore v. Robinhood Fin. LLC, No. 21-CV- 22 01571, 2022 WL 3082969, at *4 (W.D. Wash. Aug. 3, 2022)). 23 24 1 First, without citing any authority, Chime suggests that the “friend-to-friend” structure of 2 its RAF program in fact “makes it less plausible that the texts were sent without the recipient’s 3 consent.” Id. at 18. Relatedly, Chime posits that the success of the RAF program and “recipients’
4 positive reactions to RAF texts,” undermine that it knows or avoids knowing recipients do not 5 consent to receive RAF text messages. Id. at 18–19. Chime states that recipients’ positive 6 reactions further “suggest[] that many if not most recipients in fact do welcome and consent to 7 receive RAF texts.” Id. at 18. White counters that it “does not matter that Chime enables text 8 messages between friends or other trusted contacts” because “CEMA does not provide an 9 exemption for unsolicited commercial electronic text messages sent by a friend.” Dkt. No. 31 at 10 13 (citing Aaland v. CRST Home Sols., LLC, 575 P.3d 1279, 1286 (Wash. Ct. App. 2025)). The 11 Court agrees with White. 12 As White points out, multiple courts in this district have denied motions to dismiss CEMA
13 and CPA claims concerning similar refer-a-friend programs that “rel[ied] on one-on-one 14 communications between trusted friends and contacts.” Dkt. No. 25 at 12–13; see, e.g., Jensen v. 15 Cap. One Fin. Corp., No. C24-0727-KKE, 2025 WL 606194, at *5 (W.D. Wash. Feb. 25, 2025); 16 Robinhood Fin. LLC, 2022 WL 3082969, at *4; Wright v. Lyft, Inc., No. 2:14-cv-00421, 2016 WL 17 7971290, *7 (W.D. Wash. Apr. 15, 2016); Block, Inc., 2024 WL 1931690, at *4. Although CEMA 18 provides certain narrow statutory exceptions, including where a recipient “has clearly and 19 affirmatively consented in advance to receive these text messages,” Chime points to no exceptions 20 for friends or trusted contacts generally. See WASH. REV. CODE § 19.190.070(1)(b). Crucially, 21 White affirmatively alleges (and thus the Court takes as true) that she and other Washington 22 residents who are recipients of RAF messages “did not provide advance consent to receive Chime
23 referral messages.” Dkt. No. 18 ¶¶ 4, 17. Thus, at this juncture, Chime’s argument that it is “more 24 plausible” that recipients of RAF messages consented to receiving them fails. Dkt. No. 25 at 17. 1 Finally, Chime contends that its “notices to members to send texts only with consent” 2 support that it did not know or avoid knowing that the text messages would be sent without consent. 3 Dkt. No. 25 at 19–20. As White points out, this Court rejected a similar argument in Jensen. As
4 in that case, Chime’s “description of the notice is only partially accurate: the notice on the mobile 5 app indicates that the customer should have received consent to send ‘text messages’ to the 6 recipient, but not that the customer should have received consent to send this particular commercial 7 text message.” Jensen, 2025 WL 606194, at *6. As in Jensen, here, the “plain language of the 8 notice, by referring to text messages in the plural, suggests that the consent at issue is the consent 9 to send text messages in general, rather than this particular text message.” Id. 10 In sum, White plausibly alleges Chime knew or consciously avoided knowing its users 11 were sending messages in violation of the CPA. 12 3. CEMA’s statutory purpose does not support excluding the RAF program.
13 Finally, Chime argues that “[o]rdinary principles of statutory interpretation and the plain 14 language of CEMA show that Chime did not ‘assist the transmission’ of Plaintiffs’ RAF texts” and 15 that construing CEMA’s substantial assistance provision to exclude Chime’s RAF program “is 16 consistent with CEMA’s statutory purpose.” Dkt. No. 25 at 20. In Chime’s view, the “assistance” 17 language in the statute is meant to target tools with the sole purpose of violating the statute, such 18 as “mass texting programs, spam bots and the like.” Id. Chime claims that “[b]y prohibiting 19 ‘assist[ing] the transmission’ of certain commercial texts, the Washington legislature did not intend 20 to introduce expansive secondary liability.” Dkt. No. 25 at 20. Such a reading, according to 21 Chime, is further supported by the Washington legislature’s 2005 amendment which added a 22 “broad exclusion” for secondary liability. Id.
23 Chime’s argument is inconsistent with the fact that, in 2003, “the Washington legislature, 24 recognizing the ‘serious concerns’ posed by the increase in unsolicited commercial text messages, 1 amended CEMA to expand its scope of prohibited electronic practices.” Robinhood Fin. LLC, 2 2022 WL 3082969, at *2 (emphasis added) (citing 2003 Wash. Laws 137 § 1). And, as previously 3 discussed, the Court finds that the 2005 amendments were meant primarily to exempt
4 telecommunications intermediaries. Had the legislature wished to exempt other categories of 5 commercial entities assisting in the transmission of unsolicited commercial text messages, it could 6 have indicated as much. Finally, this Court joins many others in this district that have, after the 7 2005 amendments, denied motions to dismiss involving similar refer-a-friend programs. Jensen, 8 2025 WL 606194, at *5; Robinhood Fin. LLC, 2022 WL 308296, at *4; Lyft, Inc., 2016 WL 9 7971290, at *4; Block, Inc., 2024 WL 1931690, at *4. These decisions are consistent with the 10 Washington Supreme Court’s directive to “construe remedial consumer protection statutes … 11 liberally in favor of the consumers they aim to protect.” Jametsky, 317 P.3d at 1007. 12 As such, the Court declines to adopt Chime’s statutory construction, and accordingly
13 denies its motion to dismiss. 14 III. CONCLUSION 15 The Court DENIES Defendant’s motion to dismiss. Dkt. No. 25. The Clerk is directed to 16 file a class action joint status report order for the parties to use in preparing their report. 17 Dated this 29th day of May, 2026. 18 A 19 Kymberly K. Evanson 20 United States District Judge
22 23 24