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Nathan Publishes Article in the Arkansas Law Review

The summer 2014 edition of the Arkansas Law Review is out, and I wrote one of the feature articles. The article is about the Arkansas Deceptive Trade Practices Act (ADTPA). The ADTPA permits any citizen who has been the victim of a deceptive trade practice to bring suit against the bad actor. The act is very broad and consumer-friendly. We most often see it when the Arkansas Attorney General uses it to stop wrongful practices, like very high interest check-cashers.

The Act contains an exemption for conduct "authorized" by federal and state laws and regulations. Some Arkansas courts apply the exemption as written. For example, when the Environmental Protection Agency approved an estimated mileage sticker for the Toyota Prius, an ADPTA claim against Toyota for misleading mileage estimates failed. The conduct was "authorized" by the EPA. When the ADTPA exemption is limited like this, it is known as an application of the "specific conduct" rule.

Some Arkansas courts have interpreted this to mean that all "regulated" conduct is exempt from the ADPTA. For example, some insurance companies argue that their claims practices are regulated and any ADTPA suit against them must fail, even though the insurance code defines certain insurance practices as deceptive (like failing to give you a reason for denying your claim). Primarily, the federal district courts for the Eastern District of Arkansas apply the rule this way; it is known as the "general activity" rule.

The Arkansas Supreme Court hasn't specifically ruled on this exemption. However, many courts around the country have ruled on similar exemptions.  My article surveys 50 other states, and concludes that most states having a rule similar to ours apply the specific conduct rule.

The full citation for the article is: Nathan P. Chaney, The Arkansas Deceptive Trade Practices Act: The Arkansas Supreme Court Should Adopt the Specific-Conduct Rule, 67 Ark. L. Rev. 299 (2014). I'll post a link when it becomes available.