Ark. Code Ann. § 4-88-113 (2026)

Research References

ALR.

Right to private action under state consumer protection act — Equitable relief available. 115 A.L.R.5th 709.

Right to private action under state consumer protection act — Preconditions to action. 117 A.L.R.5th 155.

Ark. L. Rev.

Nathan Price Chaney, The Arkansas Deceptive Trade Practices Act: The Arkansas Supreme Court Should Adopt the Specific-Conduct Rule, 67 Ark. L. Rev. 299 (2014).

Britta Palmer Stamps, Recent Developments: Attorney's Fees — Fees May Be Awarded Under Arkansas Deceptive Trade Practices Act Regardless of Overall Prevailing Party, 67 Ark. L. Rev. 1111 (2014).

Margaret E. Rushing, Comment: Deceptively Simple: The Arkansas Deceptive Trade Practices Act, 71 Ark. L. Rev. 1033 (2019).

U. Ark. Little Rock. L. Rev.

Annual Survey of Case Law, Civil Procedure, 28 U. Ark. Little Rock L. Rev. 631.

Annual Survey of Case Law: Practice, Procedure, and Courts, 29 U. Ark. Little Rock L. Rev. 905.

Case Notes

In General.

This section limits a private cause of action for deceptive trade practices under § 4-88-107 to instances where actual damage or injury has occurred; hence, where the only alleged injury is the diminution in value of a product, a private cause of action is not cognizable. Wallis v. Ford Motor Co., 362 Ark. 317, 208 S.W.3d 153 (2005).

Plaintiff's motion to dismiss defendant's Arkansas Deceptive Trade Practices Act (ADTPA) claim on the ground that the ADTPA was not cognizable because defendant was not a consumer was denied because one did not have to be a consumer to recover under the ADTPA pursuant to subsection (f) of this section and §§ 4-88-101 and 4-88-102(5). Valor Healthcare, Inc. v. Pinkerton, — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 105988 (W.D. Ark. Dec. 23, 2008).

Claims stated by the contractor in Count I constituted ordinary breach-of-contract claims that did not rise to the level of violating the Arkansas Deceptive Trade Practices Act, §§ 4-88-101 to 4-88-503, as they were devoid of any factual bases on which the appellate court could conclude that the subcontractor engaged in deceptive business practices. CEI Eng'g Assocs. v. Elder Constr. Co., 2009 Ark. App. 259, 306 S.W.3d 447 (2009).

Circuit court properly ruled that the Arkansas Deceptive Trade Practices Act was not applicable to appellant's case because appellant failed to assert that appellee engaged in any type of consumer-oriented act or practice that caused damages. Skalla v. Canepari, 2013 Ark. 415, 430 S.W.3d 72 (2013).

Construction.

—Prior Version of Section.

Building owner's deceptive trade practices claim under the former version of subsection (f) of this section (amended 2017) was properly dismissed where there was no evidence that the owner either knew about a “leak proof” label before the incident that caused water damage or took some action because of it. Apex Oil Co. v. Jones Stephens Corp., 881 F.3d 658 (8th Cir. 2018) (decision under prior version of section).

Building owner's argument that reliance was not an element under the former version of subsection (f) (amended 2017) was rejected as the more natural reading of the former text required proof of reliance, even though not expressly included in the statute, and the 2017 amendment was better viewed as a clarification. Apex Oil Co. v. Jones Stephens Corp., 881 F.3d 658 (8th Cir. 2018) (decision under prior version of section).

Actual Damages.

Appellees could not recover damages for mental anguish as an element of actual damages under this section because appellees had no physical injury; Arkansas does not recognize negligent infliction of emotional distress. FMC Corp. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005).

Trial court properly dismissed, for failure to state a claim, a class-action fraud and statutory deceptive trade practices lawsuit alleging that a concealed design defect caused a diminution in value of a vehicle; a private cause of action could not be maintained under § 4-88-107 because no actual damage or injury occurred within the meaning of this secttion. Wallis v. Ford Motor Co., 362 Ark. 317, 208 S.W.3d 153 (2005).

Plaintiff's § 4-88-107(a)(1) false representation/unfair competition claim, arising from the fact that defendant had begun using the same name that it used for its informal hunting club, failed as a matter of law because plaintiff did not offer any evidence showing that it suffered any actual damage or injury as a result of defendant's actions. Subsection (f) of this section required that plaintiff show such injury or damage, in order to pursue a claim under the Arkansas Deceptive Trade Practices Act. Ark. Trophy Hunters Ass'n v. Tex. Trophy Hunters Ass'n, 506 F. Supp. 2d 277 (W.D. Ark. 2007).

Plaintiff's claims regarding violations of Telephonic Sellers Act and School Calendar Act were actionable under the Arkansas Deceptive Trade Practices Act, § 4-88-107, even though neither Act provided a private cause of action for consumers because a violation of either statute constituted a deceptive trade practice under the ADTPA pursuant to §§ 4-88-503(a), 4-99-111(b), and any person who suffered actual damage as a result of such a practice had a cause of action under the ADTPA, subsection (f) of this section. M.S. Wholesale Plumbing, Inc. v. Univ. Sports Publs. Co., Inc., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 4159 (E.D. Ark. Jan. 7, 2008).

Plaintiff's claim alleging a violation of the Arkansas Deceptive Trade Practices Act (ADTPA), § 4-88-107(a)(1), (a)(10), was actionable because plaintiff had alleged sufficient facts to satisfy the ADTPA's actual damage requirement under subsection (f) of this section; plaintiff was not alleging that it purchased a product with less economic value than represented by defendant, but instead, plaintiff claimed that it paid for a product that was not at all what defendant represented, that is, an advertisement sold on behalf of a university. M.S. Wholesale Plumbing, Inc. v. Univ. Sports Publs. Co., Inc., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 4159 (E.D. Ark. Jan. 7, 2008).

Jury was properly instructed that licensees could not recover on their deceptive trade practices claim if the only injury they suffered was a diminution in value of the product; the jury could have found that a lack of patent protection resulted in only a diminution in value of the products the licensees contracted to market. Yazdianpour v. Safeblood Techs., Inc., 779 F.3d 530 (8th Cir. 2015).

Trial court abused its discretion in dismissing the doctor's Arkansas Deceptive Trade Practices Act claim because the operator's alleged conduct took advantage of physically infirm customers and was an unconscionable business practice; the doctor alleged actual damages sufficient to withstand a motion to dismiss because he was allegedly terminated due to his resistance to take part in the operator's scheme to increase revenue. Hamby v. Health Mgmt. Assocs., 2015 Ark. App. 298, 462 S.W.3d 346 (2015).

In a foreclosure action, in which borrowers asserted a counterclaim under the Arkansas Deceptive Trade Practices Act based on § 4-88-107(a)(8)(A) and (a)(10), there was no showing that the lender co-trustees, who were the parents of one of the borrowers, were in the business, commerce, or trade of making loans; instead, there was testimony that the borrowers would not qualify for a conventional loan and this was simply a case of parents helping their child, and the circuit court found that borrowers were not damaged. Parker v. Parker, 2017 Ark. App. 242, 520 S.W.3d 693 (2017).

It was not necessary to determine whether the 2017 amendment to this section, requiring “actual financial loss”, applied to plaintiff's complaint because he failed to meet the “actual damage or injury” requirement of the pre-2017 version of this section. Parnell v. FanDuel, Inc., 2019 Ark. 412, 591 S.W.3d 315 (2019).

Circuit court properly dismissed a subscriber's complaint and class-action allegations against an internet-based fantasy sports game company for violation of the Arkansas Deceptive Trade Practices Act and unjust enrichment; while the subscriber alleged that the company failed to match his $200 deposit as advertised, he failed to allege any “actual damage or injury” where he made no allegation that he was in any way prevented from spending or withdrawing his deposit from his account and could not demonstrate that the company was unjustly enriched. Parnell v. FanDuel, Inc., 2019 Ark. 412, 591 S.W.3d 315 (2019).

Class Action.

Superiority requirement was established in a class action suit against a title company under the Arkansas Deceptive Trade Practices Act, § 4-88-101 et seq., because it was not feasible to recover the small document fee charged to parties in real estate transactions in individual litigation and an examination of individual cases were not required; the title company's argument that this section showed the economic feasibility of individual claims was rejected. Lenders Title Co. v. Chandler, 358 Ark. 66, 186 S.W.3d 695 (2004).

Consumer-Oriented.

Chicken growers' claim that the processor violated the Arkansas Deceptive Trade Practices Act, § 4-88-101 et seq., was dismissed as the growers failed to plead facts showing that the processor's alleged unequal treatment of growers it contracted with was a consumer-oriented act or practice. Crutchfield v. Tyson Foods, Inc., 2017 Ark. App. 121, 514 S.W.3d 499 (2017).

Circuit court erred in finding that a corporation violated the Arkansas Deceptive Trade Practices Act (ADTPA), § 4-88-101 et seq., because there was simply no “consumer-oriented act” as required for a cause of action under the ADTPA; the circuit court clearly erred in finding that the plaintiff competitor was a consumer for purposes of the ADTPA because the corporation and the competitor were opponents in the market of selling counties' public data. Apprentice Info. Sys. v. DataScout, LLC, 2018 Ark. 149, 544 S.W.3d 536 (2018).

Costs and Fees.

Subdivision (b)(2) of this section only provides for the award of attorneys' fees in those cases where the attorney general seeks the “suspension or forfeiture of franchises, corporate charters, or other licenses or permits, or authorizations to do business in the state”; where the attorney general does not seek such remedies, a request for attorney's fees will be denied. State ex rel. Bryant v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994).

Subsection (b) of this section does not provide that expert-witness fees can be charged against the losing party. State ex rel. Bryant v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994).

Trial court abused its discretion in awarding all of appellees' requested attorneys' fees where only one of their causes of action provided for fees; nothing in § 16-22-308 or this section provides that a party is entitled to an award of all fees in cases where multiple claims have been pursued. FMC Corp. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005).

Plain reading of subsection (f) of this section requires that an award for actual damages or attorney's fees is predicated on prevailing on the claim or claims asserted; thus, where the jury rejected the buyer's claims pursuant to §§ 4-88-107 and 4-88-108, thereby denying her recovery of actual damages or attorney's fees, it was not necessary for the appellate court to consider whether attorney's fees were a part of an element of damages under subsection (f). Thomas v. Olson, 364 Ark. 444, 220 S.W.3d 627 (2005).

It was necessary to remand for a determination of whether defendant was entitled to attorney's fees on its counterclaim under the Arkansas Deceptive Trade Practices Act, because a party who prevailed on a cause of action to recover actual damages under the Act was eligible for an award of attorney's fees, in the discretion of the court, even when another party was the prevailing party in the overall action. G&K Servs. Co. v. Bill's Super Foods, Inc., 766 F.3d 797 (8th Cir. 2014).

In a deceptive trade practices action, the circuit court's award of attorney's fees, costs, and expenses to the State comported with the language of this section where the practice of the attorney general was to record the cumulative hours regarding certain work on the day the work was completed, and there was no error in the circuit court's acceptance of the State's explanation. Pleasant v. State ex rel. McDaniel, 2019 Ark. App. 248, 576 S.W.3d 90 (2019).

Elements of Claim.

Appellee alleged that appellant made false representations and that its actions were deceptive and unconscionable under the Arkansas Deceptive Trade Practices Act. As appellee never explained what the false representations were or what acts appellant engaged in that violated the Act, and did not explain how it was damaged by appellant's actions, it failed to allege facts setting forth a cause of action under the Act. Forever Green Ath. Fields, Inc. v. Lasiter Constr., Inc., 2011 Ark. App. 347, 384 S.W.3d 540 (2011).

In a case alleging negligence, breach of contract, breach of warranty, strict product liability, and violations of the Arkansas Deceptive Trade Practices Act based on a claim that a casket was defective, the complaint failed to include the elements of the causes of actions pled because it failed to state facts that linked the damages to the conduct or product supplied; there was no way of knowing the condition of the casket purchased since it had not been disinterred or inspected since its burial in 1996. Clayton v. Batesville Casket Co., 2015 Ark. App. 361, 465 S.W.3d 441 (2015).

Substantial evidence existed that the officer, acting for the company, omitted or concealed material facts in connection with the home services; he made representations about his age, education, experience, and insurance coverage that were false, and thus there was sufficient evidence for the jury to have found that the failure to speak truthfully caused the owners damage, and thus substantial evidence supported the jury's finding on the deceptive trade practices claim. Roggasch v. Sims, 2016 Ark. App. 44, 481 S.W.3d 440 (2016).

Individual Liability.

Because substantial evidence supported the jury's finding on the deceptive trade practices claim, there was no error in the corporate officer being held individually accountable. Roggasch v. Sims, 2016 Ark. App. 44, 481 S.W.3d 440 (2016).

Judgment on Pleadings.

Judgment on the pleadings was entered because Arkansas counties could not pursue a private action under subsection (f) of this section against companies that produced and marketed cold remedies containing ephedrine and pseudoephedrine, which were ingredients used in manufacturing methamphetamine (meth), because the counties failed to assert actionable claims under the Arkansas Deceptive Trade Practices Act (ADTPA), §§ 4-88-101 to 4-88-503: (1) the counties alleged that the companies engaged in unconscionable behavior under § 4-88-107(a)(10), by failing to take action to prevent their remedies from being used to manufacture meth, by benefitting from that illegal use of their remedies, and by actively impeding measures to prevent the remedies from being used to manufacturer meth; (2) the ADTPA was limited to trade practices and did not protect consumers or the counties against third party criminal conduct involving the use of the companies' remedies; (3) the counties could not show that the companies caused their financial injury because the companies did not have any special relationship with the counties that rendered them liable for the criminal acts of the meth manufactures; and (4) the counties could not seek relief under the ADTPA because there injury was too remote, as there was no direct link between the companies' remedies and their alleged financial injuries. Independence County v. Pfizer, Inc., 534 F. Supp. 2d 882 (E.D. Ark. 2008), aff'd, Ashley County v. Pfizer, Inc., 552 F.3d 659 (8th Cir. 2009).

Lost Profits.

Where plaintiff retailer sued defendant supplier on claims of deceptive trade practices in connection with the supplier's refusal to honor its rebate program for the retailer's customers, if successful, the retailer's lost profits were recoverable under the Arkansas Deceptive Trade Practices Act, subsection (f) of this section, and the voluntary payment rule would not preclude a recovery of lost profits since, while the retailer's decision to issue its own rebates to customers could arguably be considered “voluntary,” the retailer's alleged lost profits were not. Curtis Lumber Co. v. La. Pac. Corp., 618 F.3d 762 (8th Cir. 2010).

Odometer.

There were no genuine issues of material fact remaining where there was a violation of the Arkansas Odometer Fraud Act by failing to have the odometer read the correct mileage or by adjusting it to zero to put buyers on notice; a violation of the Odometer Fraud Act constituted an unfair or deceptive trade practice. The damages for economic loss, treble damages, and attorney’s fees were upheld under the Odometer Fraud Act and the Arkansas Deceptive Trade Practices Act. Ukegbu v. Daniels, 2014 Ark. App. 422, 438 S.W.3d 284 (2014).

Standing.

It did not appear that Arkansas counties had standing to bring a suit under subsection (f) of this section of the Arkansas Deceptive Trade Practices Act (ADTPA), §§ 4-88-101 to 4-88-503, against companies that produced and marketed cold remedies containing ephedrine and pseudoephedrine, which were ingredients used in manufacturing methamphetamine (meth), because the counties could not show that they suffered actual damage or injury as a result of an offense or violation of the ADTPA. The counties had merely alleged that they expended significant sums in dealing with issues relating to the use and manufacture of meth and that the companies could and should have taken action to impede or eliminate the use of their remedies in meth manufacturing. Independence County v. Pfizer, Inc., 534 F. Supp. 2d 882 (E.D. Ark. 2008), aff'd, Ashley County v. Pfizer, Inc., 552 F.3d 659 (8th Cir. 2009).

Violation Not Shown.

In a case that set aside a foreclosure decree due to improper service on the property owner, the foreclosure sale purchaser did not have a cause of action against the foreclosure mortgagee under the Arkansas Deceptive Trade Practices Act; the purchaser did not challenge the circuit court's finding that the foreclosure mortgagee's actions were neither intentional nor reckless. MidFirst Bank v. Sumpter, 2016 Ark. App. 552, 508 S.W.3d 69 (2016).

Cited: Anderson v. Stewart, 366 Ark. 203, 234 S.W.3d 295 (2006); Holiday Inn Franchising v. Hotel Assocs., 2011 Ark. App. 147, 382 S.W.3d 6 (2011).