Arkansas

• Pages: 49-62

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CHAPTER 5

ARKANSAS

A. Scope of the Statute and Elements of a Cause of Action

The Arkansas Deceptive Trade Practices Act (ADTPA)1 was enacted

with a remedial purpose “to protect the interests of both the consumer

public and the legitimate business community.”2 The ADTPA generally

prohibits “(1) [t]he act, use or employment by a person of any deception,

fraud, or false pretense; or (2) [t]he concealment, suppression, or omission

of any material fact with intent that others rely upon the concealment,

suppression, or omission” when “utilized in connection with the sale or

advertisement of any goods, services, or charitable solicitation . . . .”3

“Goods” include “any tangible property, coupons, or certificates, whether

bought or leased.”4 “Services” include “work, labor, or other things

purchased that do not have physical characteristics.”5

In addition to these general prohibitions, the ADTPA also has asection

listing eleven “deceptive and unconscionable trade practices made

unlawful and prohibited by” the act.6Prohibited conduct is “not limited

to” these specific prohibitions.7 Among other things, this list of prohibited

conduct includes “[k]nowingly making a false representation” as to

characteristics “of goods or services”;8 “[a]dvertising the goods or services

with the intent not to sell them as advertised”;9 using “bait-and-switch

1. ARK.CODE ANN. § 4-88-101 et seq.

2. State ex rel.Bryantv.R&A Inv.Co.,985 S.W.2d 299,302(Ark.

1999) (quoting the preamble to Arkansas Act 92 of 1971).

3. ARK.CODE ANN. § 4-88-108; see also New Equity Sec. Holders Comm.

for Golden Gulf v. Phillips, 97 B.R. 492, 502 (Bankr. E.D. Ark.

1989) (holding plaintiff partnership’s misrepresentations violated the

ADTPA and defendant partners could use the violation as an affirmative

defense).

4. ARK.CODE ANN. § 4-88-102(4).

5. Id. § 4-88-102(7).

6. Id. § 4-88-107(a).

7. Id.

8. Id. § 4-88-107(a)(l).

9. Id. § 4-88-107(a)(3).