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AMI 2900 Issues—Claim for Damages Based on Deceptive Trade Practices

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2900
Arkansas Model Jury Instructions-Civil
December 2023 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 29. Deceptive Trade Practices
AMI 2900 Issues—Claim for Damages Based on Deceptive Trade Practices
[Plaintiff] claims damages from [defendant] and has the burden of proving each of three essential propositions:
First, that (he)(she) has sustained actual financial loss;
Second, that [defendant] [knowingly made a false representation as to (the characteristics, ingredients, uses, benefits, alteration, source, sponsorship, approval, or certification of goods or services) (or) (whether goods are original or new, or of a particular standard, quality, grade, style, or model);] [or]
[disparaged the goods, services, or business of [plaintiff] by a false or misleading representation of fact;] [or] [advertised goods or services with the intent not to sell them as advertised;] [or]
[refused (to provide requested relevant information to [plaintiff] about) (or) (to deliver to [plaintiff]) the record of warranty and statement of service availability included in the original container of an electronic or mechanical product;] [or]
[used bait-and-switch advertising;] [or]
[knowingly failed to inform [plaintiff] that goods were damaged by flood, water, fire, or accident;] [or]
[made a false representation to [plaintiff] that contributions solicited for charitable purposes would be spent in a specific manner or for specific purposes;] [or]
[knowingly took advantage of [plaintiff], who was reasonably unable to protect (his)her interest because of physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement, or a similar reason;] [or]
[offered a trust document for sale, assembly, or drafting;] [or]
[displayed or caused to be displayed a fictitious or misleading name or telephone number on an Arkansas resident's telephone caller identification service;] [or]
[engaged in an unconscionable, false, or deceptive act or practice in business, commerce, or trade;] and
Third, that [his or her] actual financial loss was proximately caused by his or her reliance on the defendant's conduct described above.
[If you find from the evidence in this case that each of these propositions has been provided, then your verdict should be for [plaintiff]; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for [defendant].]
“Actual financial loss” means an ascertainable amount of money that is equal to the amount paid by a person for goods or services and the actual market value of the goods of services provided to a person.
Do not use the final bracketed paragraph if the case is submitted on interrogatories.
This instruction is based on the Arkansas Deceptive Trade Practices Act (“ADTPA”), specifically, Ark. Code Ann. § 4-88-107, which sets out prohibited deceptive and unconscionable trade practices, and Ark. Code Ann. § 4-88-113(f), which provides for a private cause of action to recover damages.
The Arkansas Supreme Court, in Air Evac EMS, Inc. v. USAble Mutual Insurance Company d/b/a Arkansas Blue Cross Blue Shield, 2017 Ark. 368, 533 S.W.3d 572, has further interpreted the safe harbor provision of the ADTPA set forth at Ark. Code Ann. § 4-88-101 concluding that Arkansas follows the specific-conduct rule “meaning that [the ADPTA] precludes claims only when the actions or transactions at issue have been specifically permitted or authorized under laws administered by a state or federal regulatory body or officer.” Id. at 575–76; See also DePriest v. AstraZeneca Pharmaceuticals, L.P., 2009 Ark. 547, at 13–15. (The ADTPA does not apply to advertising or practices that are subject to and comply with any rule, order, or statute administered by the Federal Trade Commission or actions or transactions “specifically permitted” under laws administered by a regulatory body or officer acting under statutory authority of this state or the United States.)
Act 986 replaced “actual damage or injury” with “actual financial loss.”
Business entities and other non-consumers, as well as individuals, may bring claims under the ADTPA. Ark. Code Ann. § 4-88-102(5); Vanoven v. Chesapeake Energy Corp., No. 4:10CV0158 BSM, 2011 WL 1042251, at *5 (E.D. Ark. Mar. 22, 2011); ElectroCraft Arkansas, Inc. v. Super Electric Motors, Ltd., 70 U.C.C. Rep. Serv. 2d 716, at *20–23 (E.D. Ark. 2009).
There is no private cause of action for injunctive relief under the ADTPA. Baptist Health v. Murphy, 2010 Ark. 358, at 27–29 (citing Wallis v. Ford Motor Co., 362 Ark. 317, 208 S.W.3d 153 (2005)).
The ADTPA does not apply to the practice of law by licensed attorneys. Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, at 14–15 (citing Preston v. Stoops, 373 Ark. 591, 594, 285 S.W.3d 606, 609 (2008)). This is true even if the attorney is licensed by, and located in, another state and is engaged in the collection of debts inside this state. Boyajian v. State, 2012 Ark. 210, at 3. However, in Campbell v. Asbury Automotive, Inc., the Arkansas Supreme Court held that the ADTPA can apply to a cause of action for the unauthorized practice of law by a nonlawyer. 2011 Ark. 157, at 10–11.
Section 4-88-107(a)(10), which prohibits “any other unconscionable, false, or deceptive act or practice,” is not too vague for enforcement. State ex rel. Bryant v. R & A Inv. Co., 336 Ark. 289, 295, 985 S.W.2d 299, 302 (1999).
While the ADTPA “protects consumers from unfair ways of doing business,” the alleged prohibited conduct must be considered in light of trade practices. Independence Cnty. v. Pfizer, Inc., 534 F. Supp. 2d 882, 887–88 (E.D. Ark. 2008), aff'd, 552 F.3d 659 (8th Cir. 2009) (dismissing on the pleadings ADTPA claims against drug manufacturing companies involved in manufacture or distribution of over-the-counter products containing ephedrine or pseudoephedrine based on theory that they knew their products were being used in illegal manufacture of methamphetamine). Nothing in the Act protects consumers against third party criminal conduct. Id.
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