Moore v. Mack's Sport Shop LLLP et al

Filing 35

OPINION AND ORDER granting 18 summary judgment to the Mack Defendants and Yeti on Mr. Moore's ADTPA claims (Counts I and III), common law fraud or deceit claim (Count II), negligence and gross negligence claim (Count VI), unjust enrichment c laim (Count IV), request for a constructive trust (Count V), and breach of contract claim (Count VII). The Court directs further briefing on Mr. Moore's breach of warranty claims consistent with the terms of this Order. The Court directs Mr. Moore to respond to the Mack Defendants arguments regarding his warranty claims within 14 days from the entry of this Order. Signed by Judge Kristine G. Baker on 9/29/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMES MOORE, on behalf of himself
and all similarly situated persons and
entities
v.

PLAINTIFF

Case No. 4:16-cv-00540-KGB

MACK’S SPORT SHOP, LLLP d/b/a
MACK’S PRAIRIE WINGS, LLLP,
and YETI COOLERS, LLC

DEFENDANTS

OPINION AND ORDER
Plaintiff James Moore brings this action on behalf of himself and a putative class alleging
that defendants engaged in purportedly deceptive trade practices, as well as other unlawful conduct
(Dkt. No. 2). Before the Court is a motion for summary judgment filed by separate defendants
Mack’s Sport Shop, LLLP, and Mack’s Prairie Wings, LLLP (collectively “Mack Defendants”)
(Dkt. No. 18). Mr. Moore has responded in opposition to the motion (Dkt. No. 29), and the Mack
Defendants have filed a reply (Dkt. No. 31). Separate Defendant Yeti Coolers, LLC (“Yeti”), filed
a motion to join in the Mack Defendants’ motion for summary judgment (Dkt. No. 32), to which
Mr. Moore responded in opposition (Dkt. No. 33).
The Mack Defendants move for summary judgment on Mr. Moore’s claims under the
Arkansas Deceptive Trade Practices Act (“ADTPA”), Ark. Code Ann. §§ 4-88-101, et seq.
(Counts I and III), making several arguments in support. The Mack Defendants claim that Mr.
Moore does not have actual damages or injury required under the ADTPA. They also argue that
Mr. Moore does not come forward with evidence sufficient to show proof of the Mack Defendants’
intent to deceive, as required under the false advertising provision of the ADTPA and that Mr.
Moore has not, and cannot, prove that he reasonably relied on the alleged misrepresentations. The

Mack Defendants contend reliance is a necessary element to false advertising claims under the
ADTPA. They also maintain that the “catch-all” provision of the ADTPA, Ark. Code Ann. § 488-107(a)(10), does not apply on these facts and that, even if that provision did apply, Mr. Moore
cannot satisfy the elements of the claim.

The Mack Defendants contend that, under the

circumstances presented, reliance is required to prove causation under the ADTPA. Finally, the
Mack Defendants contend that Mr. Moore is not entitled to the injunctive relief he seeks under the
ADTPA.
The Mack Defendants also move for summary judgment on several of Mr. Moore’s
remaining claims, including his common law fraud or deceit claim (Count II), negligence and gross
negligence claim (Count VI), his unjust enrichment claim (Count IV), his request for a constructive
trust (Count V), and his breach of contract claim (Count VII). Mr. Moore opposes the Mack
Defendants’ motion.
The Mack Defendants failed to address Mr. Moore’s claims for breach of express
warranties (Count VIII), breach of implied warranty of merchantability (Count IX), and breach of
implied warranty to conform with usage of trade (Count X) in their motion for summary judgment.
However, the Mack Defendants do brief the issue of summary judgment on these claims in their
reply (Dkt. No. 31). By this Order, the Court directs Mr. Moore to respond to the Mack Defendants
arguments regarding his warranty claims within 14 days from the entry of this Order. The Mack
Defendants will then have 7 days from Mr. Moore’s filing of his response to file a reply, should
they choose to do so. If appropriate, the Yeti defendants may move to join in this portion of the
motion, and Mr. Moore may timely respond to that request.

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I.

Background Facts

These facts are taken from the Mack Defendants’ brief in support of motion for summary
judgment, unless otherwise noted (Dkt. No. 19, at 1-3). In his response, Mr. Moore does not
dispute these facts (Dkt. No. 30).
The Mack Defendants operate a retail store headquartered in Stuttgart, Arkansas, that sells
hunting products and apparel in store, online, and through a catalog. They are an authorized dealer
of Yeti® coolers. Yeti® coolers are premium coolers known for keeping ice and other cold
products cold for days. Mr. Moore purchased a Yeti® Tundra® cooler online from Mack’s. He
alleges that the advertised volume of the Tundra® model was not accurate. Specifically, he
contends that the cooler holds 37.6 quarts, rather than 45 quarts.
Mack’s has sold Yeti® coolers since 2006. Product descriptions and specifications,
including the size and dimensions of the various Yeti® cooler models are provided to Mack’s by
Yeti. Likewise, pricing is determined by Yeti. Mack’s provides this product information to
customers on its website and in store.
The cooler Mr. Moore purchased was called a “Yeti® 45 Quart Tundra Cooler” on his
order confirmation. Mr. Moore alleges that his cooler holds 37.6 quarts, not 45 quarts. However,
the actual dimensions of the Yeti® Tundra® model Mr. Moore purchased are available on Mack’s
website, www.mackspw.com. Mr. Moore produced documents through discovery showing that the
dimensions were available at the time of his purchase.
All of the information included in Mack’s online product descriptions and specifications
was provided by Yeti. Mack’s did not independently determine the volume of the Yeti® Tundra®
cooler. Mr. Moore’s order confirmation contains the following disclaimer relating to product
specifications on Mack’s website: “Mack’s Prairie Wings is not responsible for typographical

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errors in pricing or product specification inaccuracies in our web site. Prices are subject to change
without notice.”
Mr. Moore complains that his Yeti® cooler volume is slightly smaller than described and,
therefore, the Mack Defendants violated the ADTPA and committed fraud, as well as other
unlawful acts. He also seeks declaratory relief and temporary and permanent injunctive relief, and
he makes claims for negligence, unjust enrichment, constructive trust, breach of contract, breach
of express warranties, breach of the implied warranty of merchantability, and breach of the implied
warranty to conform with usage of trade.
II.

Summary Judgment Standard

Summary judgment is proper if the evidence, when viewed in the light most favorable to
the nonmoving party, shows that there is no genuine issue of material fact and that the defendant
is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable
jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008).
“The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the
dispute must be outcome determinative under the prevailing law.” Holloway v. Pigman, 884 F.2d
365, 366 (8th Cir. 1989).
However, parties opposing a summary judgment motion may not rest merely upon the
allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial
burden is on the moving party to demonstrate the absence of a genuine issue of material fact.
Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that
there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366

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(8th Cir. 1997). “The evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
III.

Analysis
A.

ADTPA Claims

Mr. Moore brings two counts against defendants under the ADTPA (Counts I and III).
Specifically, Mr. Moore brings his ADTPA claims under Arkansas Code Annotated §§ 4-88-107
and 108. Separate Mack Defendants move for summary judgment on both counts, asserting
several arguments. Generally, to prevail on a private action under the ADTPA based on an
affirmative misrepresentation, a plaintiff must show that: “(1) the plaintiff has sustained damages;
(2) the defendant used a deception, fraud, or false pretense in connection with the sale or
advertisement of services; and (3) the defendant’s conduct was a proximate cause of the plaintiff’s
damages.” Ramthun v. Bryan Career Coll. Inc., 93 F. Supp. 3d 1011, 1023–24 (W.D. Ark. 2015)
(citing Ark. Code Ann. § 4–88–108; Ark. Model Jury Instr.—Civ. 2902; Ashley Cnty., Ark. v.
Pfizer, Inc., 552 F.3d 659, 666 (8th Cir. 2009)). “To prevail on a private action under the ADTPA
based on omission, a plaintiff must show that: (1) the plaintiff has sustained damages; (2) the
defendant concealed, suppressed, or omitted a material fact in connection with the sale or
advertisement of services; (3) the defendant intended that others rely upon the concealment,
suppression, or omission; and (4) the defendant’s conduct was a proximate cause of the plaintiff’s
damages.” Id. (citing Ark. Code Ann. § 4–88–113(f); Wallis v. Ford Motor Co., 208 S.W.3d 153,
161 (Ark. 2005)).
1.

Actual Damages Or Injury

Under the ADTPA, on the type of claim Mr. Moore alleges, with respect to the issue of
damages, the parties agree that a plaintiff must show that he has sustained “actual damage or

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injury.” Ark. Code Ann. § 4–88–113(f); Yazdianpur v. Safeblood Technologies, Inc., 779 F.3d
530 (8th Cir. 2015); Ramthun v. Bryan Career Coll.-Inc., 93 F. Supp. 3d 1011, 2023-24 (W.D. Ark.
2015); Wallis v. Ford Motor Co., 208 S.W.3d 153, 161 (Ark. 2005)). Here, Mr. Moore alleges the
Mack Defendants violated the ADTPA because they allegedly “misrepresented the volume” of
Yeti® coolers in advertising and, as a result, Mr. Moore and the putative class members “suffered
an ascertainable loss of money, namely that the payment of monies” for a Yeti® cooler that was
purportedly misrepresented by the Mack Defendants (Dkt. No. 1, at 33, ¶ 29; 34, ¶ 32). In his
complaint, Mr. Moore pleads for both rescission of his payment for the Yeti® cooler and pro rata
reimbursement based on actual volume (Dkt. No. 1, at 34-35, ¶ 36). In his discovery responses,
Mr. Moore states that he and the putative class “will have the option to rescind the purchase or to
be paid a pro rata amount based on the purchased price.” (Dkt. No. 18, Exhibit B). The Mack
Defendants maintain that these are not actual damages under the ADTPA and, therefore, that Mr.
Moore’s ADTPA claims fail as a matter of law.
The Arkansas Supreme Court first examined this issue in Wallis v. Ford Motor Company,
208 S.W.3d at 154 (“The instant appeal involves an issue of first impression. This court is asked
to determine whether the circuit court erred in dismissing a class-action fraud and statutory
deceptive trade practices lawsuit arising out of the purchase or lease of an allegedly defective
vehicle where the only injury complained of is a diminution in value of the vehicle. We hold that
the complaint was properly dismissed by the circuit court.”). In Wallis, D.R. “Buddy” Wallis filed
a class-action lawsuit against Ford Motor Company alleging violations of the ADTPS and
common-law fraud. Id. at 154. He sought to certify a class consisting of “all persons and entities
in the State of Arkansas who now own or lease, or owned or leased, model year 1991 through 2001

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Ford Explorer sport utility vehicles (‘Explorers’) purchased or leased in the State of Arkansas.”
Id.
Specifically, he claimed that Ford Motor Company knowingly concealed the fact that the
Explorer had a dangerous design defect that caused it to roll over under normal operations. Id.
Mr. Wallis alleged in the complaint that Ford Motor Company’s alleged “cover up of the inherent
design problems and resulting accidents, combined with its Explorer brand imaging, led millions
of consumers to purchase or lease Ford Explorers at prices far in excess of the values which would
have been assigned to such vehicles had these dangers been disclosed. Furthermore, thousands of
Arkansas residents still own or lease Explorers, which are of substantially diminished value solely
as a result of Ford’s fraudulent and deceptive scheme.” Id. Mr. Wallis did not allege any personal
injury or property damage caused by the design defect, nor did he allege that the Explorer
malfunctioned in any way. Id.
Determining that his entire damage claim rested on the assertion that the design defect
“substantially diminished” the value of the Explorer, the Arkansas circuit court dismissed Mr.
Wallis’s complaint concluding that he failed to “state a legally cognizable cause of action. . . . [and
that, because he had] not experienced a cognizable injury or damages as a result of the alleged
defect, he ha[d] no cause of action.” Id. at 155. The Arkansas Supreme Court affirmed. Id.
Since Wallis, other courts have examined what constitutes actual damages sufficient to
state a private action under this provision of the ADTPA and have rejected plaintiffs’ claims. See
Yazdianpour v. Safeblood Techs., Inc., 779 F.3d 530, 538 (8th Cir.2015) (alleging inability to
patent technology); Ramthun, 93 F. Supp. 3d 1011, 1031 (W.D. Ark. 2015) (alleging inability to
transfer educational credits); Craig v. Twinings N. Am., Inc., No. 5:14-CV-05214, 2015 WL
505867, at *9 (W.D. Ark. Feb. 5, 2015) (alleging that tea did not include the antioxidants

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represented). One court determined that the actual damages alleged by plaintiff sufficed to state
an ADTPA claim. In M.S. Wholesale Plumbing, Inc. v. University Sports Publications Co., the
court determined that paying for a product that was “not at all what [defendant] represented”
alleged sufficient facts to satisfy the ADTPA's actual damage requirement. 2008 WL 90022, at
*3–4 (E.D. Ark. Jan. 7, 2008). The court reasoned that, “[u]nlike the plaintiff in Wallis, who
suffered a purely pecuniary loss, M.S. [was] not alleging that it purchased a product with less
economic value than represented by the seller. Instead, M.S. claim[ed] that it paid for a product
that was not at all what USP represented—that is, an advertisement sold on behalf of ATU.” Id.
at *4. The M.S. Wholesale court allowed the claim to proceed. Id.
Here, Mr. Moore argues that the diminution in value cases do not control and that Wallis
is inapposite. 362 Ark. 317. He argues that defendants sold to Mr. Moore a Yeti® Tundra® 45
Quart Cooler for $349.99 and that this equates to an actual cost to Mr. Moore of $7.78 per quart
that defendants represented Mr. Moore was purchasing. However, Mr. Moore contends that the
cooler was only 37.6 quarts, which he maintains means he should have only paid $292.53 for the
volume cooler that he received. Mr. Moore contends that volume exclusively determines the price
of the coolers and that defendants knowingly marketed the cooler at a larger volume so that they
could charge Mr. Moore more for the cooler. The Mack Defendants maintain that this argument,
regardless of Mr. Moore’s attempts to characterize it as something else, is a diminution in value
argument that should be rejected by this Court.
After examining the controlling legal authorities, this Court determines that Mr. Moore’s
allegations are more akin to plaintiffs’ allegations in Wallis, Safeblood, Bryan Career College, and
Twinings, not M.S. Wholesale. Here, Mr. Moore’s alleged damages are based solely upon an
alleged diminution in value, not that the product was not at all what defendants represented. M.S.

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Wholesale Plumbing, Inc., 2008 WL 90022, at *4. Mr. Moore received what he intended to
purchase—a cooler. Mr. Moore acknowledged that he has been able to “use the cooler for cooler
duties.” (Dkt. 18, Exhibit B). The Court determines that this legal argument extends to Yeti. As
a result, the Court determines that defendants, both the Mack Defendants and Yeti, are entitled to
summary judgment on Mr. Moore’s ADTPA claims on this basis.
2.

Evidence Of Intent To Deceive Under False Advertising
Provision Of ADTPA

The ADTPA false advertising provisions under which Mr. Moore sues defendants prohibit
the following:
(a)(1) [k]nowingly making a false representation as to the characteristics,
ingredients, uses, benefits, alterations, source, sponsorship, approval, or
certification of goods or services or as to whether goods are original or new or of a
particular standard, quality, grade, style, or model;
...
(a)(3) [a]dvertising the goods or services with the intent not to sell them as
advertised.
Ark. Code Ann. §§ 4-88-107(a)(1) and (3). These subsections “require that the defendant
knowingly and intentionally engage in a deceptive trade practice.” Curtis Lumber Co. v. Louisiana
Pac. Corp., 618 F.3d 762, 776 (8th Cir. 2010).
The Mack Defendants maintain that Mr. Moore has not, and cannot, present proof that the
Mack Defendants knowingly and intentionally mislead him about the size and volume of the Yeti®
cooler purchased because the record evidence demonstrates that the Mack Defendants did not
independently determine the size and volume of the Yeti® coolers it sells (Dkt. No. 19, at 9).
Rather, the record evidence establishes that the Mack Defendants used the product information
provided by Yeti, the maker of the coolers. Further, the Mack Defendants point to record evidence

9

that establishes they had no knowledge that the product information provided by Yeti was
inaccurate and, therefore, could not have intended to mislead consumers (Dkt. No. 19, at 9).
The Mack Defendants also contend that the undisputed record evidence demonstrates that
information available on Mack’s website included the specific dimensions of each cooler, which
are undisputedly correct (Dkt. No. 18, Exhibit B). They argue that, if they had known the cooler
volume description was incorrect, it would have been illogical for them to provide information
containing accurate dimensions for each cooler so that any purchaser could independently and
easily determine the exact volume of the cooler (Dkt. No. 19, at 9-10).
Mr. Moore seems to argue that the claims he asserts do not require knowing or intentional
deception, arguing that neither provision on its face requires an intent to deceive or knowledge that
a representation is false. In an effort to bolster this argument, Mr. Moore claims that the Arkansas
legislature intended to proscribe more than traditional fraud when it used the term “deceptive act
or practice” in the ADTPA catch-all provision. See Ark. Code Ann. § 4-88-107(a)(10) (proscribing
other “unconscionable, false, or deceptive act or practice in business, commerce, or trade”). Mr.
Moore contends that “deceptive act or practice” is not defined in any Arkansas statute, regulation,
or opinion. Therefore, he directs the Court to other states’ interpretations of deceptive trade
practices cases and claims that these cases hold a defendant’s good faith is immaterial to whether
a “deceptive act” has occurred (Dkt. No. 30, at 12). He urges a definition that trade practices are
deceptive if they are likely to deceive or have a capacity to deceive a reasonable consumer. Id. at
12-13 (citing Black’s Law Dictionary, 435 (8th ed. 2004) (defining “deceptive act” “as defined by
the [FTC] and most state statutes, conduct that is likely to deceive a consumer acting reasonably
under similar circumstances.”)).

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He also contends that the Arkansas Supreme Court has recognized “the legislature’s
remedial purpose” in enacting the ADTPA and that a “liberal construction of the [A]DPTA is
appropriate.” (Dkt. No. 30, at 13) (citing Arkansas ex rel. Bryant v. R&A Inv. Co., 985 S.W.2d
299, 302 (Ark. 1999)). Liberal construction, according to Mr. Moore, means that the ADTPA
should protect consumers from trade practices beyond common law fraud. In support, Mr. Moore
points to Arkansas Code Annotated § 4-88-107(b) that provides “[t]he deceptive and
unconscionable trade practices listed in this section are in addition to and do not limit the type of
unfair trade practices actionable at common law or under other statutes of this state.”
The Mack Defendants counter that these arguments are belied by the unambiguous
language of the applicable provisions of the ADTPA and maintain that the catch-all provision of
the ADTPA cited by Mr. Moore does not apply here. The conduct the ADTPA’s catch-all
provision proscribes is conduct other than the specific conduct covered in subsections (a)(1)
through (a)(9) and (a)(11). Mr. Moore’s claim is one of false advertising, as described in
subsections (a)(1) and (a)(3) of the ADTPA.
In the alternative, Mr. Moore maintains that, even if there is an intent requirement, there is
sufficient record evidence to get to a jury on the issue of intent. He contends that, in Curtis Lumber,
the court determined that, to satisfy this element, plaintiff was not required to put forth “direct
evidence or positive testimony” of fraud. 618 F.3d at 773–74 (“Circumstantial evidence can
provide a basis for the jury to infer fraud where. . . the circumstances are inconsistent with honest
intent.” (quoting Stine v. Sanders, 987 S.W.2d 289, 293 n.3 (Ark. Ct. App. 1999))); see also
Receivables Purchasing Co. v. Eng’g & Prof’l Servs., Inc., 510 F.3d 840, 844 (8th Cir. 2008). Mr.
Moore contends that intent is a question of fact that should be left for the jury, especially with the
record evidence before this Court (Dkt. No. 30, at 14-15). Mr. Moore points to the following

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evidence. He contends that, although the Mack Defendants included the actual dimensions on the
website, they advertised the Yeti® 45 Quart Tundra® Cooler on the website; represented it as a
“Yeti® 45 Quart Tundra Cooler” in its Product Description; and stated on the website as the first
item under “Yeti® 45 Quart Tundra Cooler Features” a section titled “45 Quart.” He claims the
Mack Defendants showed a cooler in Mr. Moore’s website cart as “Yeti® 45 Quart Tundra cooler,
item Number YETYT 45 TAN” and provided an invoice after the purchase that represented the
cooler as “Yeti® 45 Quart Tundra cooler, Item number YETYT 45 TAN.” Mr. Moore also claims
that, even when a consumer looks at the dimensions chart, the Mack Defendants again represented
the “size” in quarts for the dimensions listed, including the size in quarts beside each cooler’s
dimensions in the catalogs.
Mr. Moore maintains that, as a result of this record evidence, it is undisputed that the Mack
Defendants intended to advertise, and did advertise, the Yeti® Tundra® 45 cooler as the “Yeti®
45 Quart Tundra cooler” and that the Mack Defendants intended to sell, and did sell, Mr. Moore a
45 quart cooler that only held 37.6 quarts. Further, he claims that, based on the record evidence,
it is undisputed that the Mack Defendants knew that they were inaccurately advertising the volume
on Yeti® coolers and intentionally made the statements.

He claims the Mack Defendants

intentionally made these statements, even though they were an authorized dealer of Yeti® coolers
in possession of all measurements necessary to determine the actual volume of the Yeti® coolers
misrepresented. Mr. Moore argues that, if as the Mack Defendants contend he could have
performed calculations with this information to determine the correct volume, the Mack
Defendants could have made this simple mathematical calculation for the Yeti® coolers they
advertised and sold to Mr. Moore and other Arkansas consumers or, at a minimum, that is a
question of fact for the jury (Dkt. No. 30, at 14).

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In Curtis Lumber, the court determined that plaintiff was required to demonstrate scienter,
meaning that defendant “made a material false statement knowing that it was false at the time
made.” Curtis Lumber, 618 F.3d at 773 (quoting McAnally v. Gildersleeve, 16 F.3d 1493, 1497
(8th Cir. 1994); see also South County, Inc. v. First W. Loan Co., 871 S.W.2d 325, 326 (Ark.
1994) (“Proof of a mere naked falsehood or representation is not enough even though the
complaining party relied on it and sustained damages, but, in addition thereto, the false statement
must have been knowingly or intentionally made.”) (quotation omitted)). As Mr. Moore points
out, the court determined that, to satisfy this element, plaintiff Curtis Lumber was not required to
put forth “direct evidence or positive testimony” of fraud. Id. (quoting Receivables Purchasing
Co., Inc., 510 F.3d at 844). However, the court explained that, even with circumstantial evidence,
“the circumstances must be so strong and well connected as to clearly show fraud.” Id. (quoting
Allred v. Demuth, 890 S.W.2d 578, 580 (Ark. 1994)).
The court determined that evidence of scienter was “lacking” because Curtis Lumber had
not identified “any unusual or suspicious conduct or circumstances surrounding [the alleged]
statements from which [the court] could reasonably infer a fraudulent state of mind.” Id.
Specifically, the court determined that defendant had consistently maintained its interpretation of
the rebate promotion at issue and had not engaged in contradictions. Id. Further, the court rejected
Curtis Lumber’s argument that defendant’s ”knowledge of a false statement c[ould] be inferred
from [ ] testimony that (1) [defendant] intended retailers and customers to rely on the rebate
program documents, (2) [defendant] intended to include a proof-of-use requirement in the rebate
program, and (3) that the rebate program documents [were] incomplete because they did not
specify the requirement that rebate applicants must install [certain] products by a certain date.” Id.

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at 773-74. The court determined that, even construed in the light most favorable to Curtis Lumber,
these admissions in hindsight were insufficient. The court reasoned:
The mere admission of a misstatement is not enough to presume a fraudulent state
of mind. See [Interstate Freeway Services, Inc. v.] Houser, 835 S.W.2d [872,] 873
[(Ark. 1992)] (“Fraud is never presumed, and must be affirmatively proved. . . .”).
At most, [defendant’s] testimony supports an inference that the omission in the
rebate documents was a product of an honest mistake, which is insufficient to prove
fraud. See Morrill [v. Becton, Dickinson and Co.], 747 F.2d [1217,] 1222 [(8th Cir.
1984)] (some of the defendant’s misrepresentations could not be actionable fraud
where the only evidence of scienter was testimony that the inaccuracies “were
honest mistakes”). This testimony falls short of the elevated burden for proving
fraud by circumstantial evidence.
...
In sum, Curtis Lumber has not presented evidence to shed light on [defendant’s]
state of mind when it issued the rebate documents. As such, no reasonable factfinder could conclude that [defendant] falsely represented the terms of the rebate
promotion with knowledge of such falsity.
Id.
This Court concludes that, much like the evidence upon which Curtis Lumber relied, Mr.
Moore’s record evidence falls short of the elevated burden for proving through circumstantial
evidence scienter or that the Mack Defendants made a material false statement knowing that it was
false at the time made as required by the ADTPA false advertising provision under which he sues.
The Court determines that, based on the record evidence and construing all reasonable inferences
in favor of Mr. Moore, no fact finder could conclude that the Mack Defendants made a material
false statement knowing it was false at the time it was made. Therefore, the Mack Defendants are
granted summary judgment on Mr. Moore’s ADTPA claims on this basis. The Court does not find
that these same arguments extend to Yeti. Therefore, the Court declines to grant summary
judgment to Yeti on this basis.

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3.

Reasonable Reliance Under False Advertising Provision Of
ADTPA

The Mack Defendant also maintain that Mr. Moore has not, and cannot, prove that he
reasonably relied on the alleged misrepresentation(s) in his purchasing decision. Under Arkansas
law, “[p]roximate cause encompasses two distinct aspects: cause in fact and legal cause.”
Ramthun v. Bryan Career Coll.-Inc., 93 F. Supp. 3d 1011, 1030 (W.D. Ark. 2015) (quoting Ashley
Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 667 (8th Cir. 2009)). It appears to the Court that the
proximate cause element in this case is coextensive with reliance. Reasonable reliance on the
alleged false advertising is a necessary element of Mr. Moore’s false advertising ADTPA claims.
See Ramthun, 93 F. Supp.3d at 1030 (examining proximate cause and reasonable reliance under
the ADTPA); White v. Volkswagen Group of America, Inc., 2013 WL 685298, at *8 (W.D. Ark.
Feb. 25, 2013) (dismissing plaintiff’s ADTPA claims stating that plaintiff “may only claim a
violation of the ADTPA, if she suffered some economic injury ‘as a result’ of her reliance on
Defendant’s allegedly false representations or advertisements.”).
Mr. Moore contends that the text of the ADTPA makes no mention of reliance and that
inserting reliance would be antagonistic to the consumer protection origins of the legislation, as
well as the law’s objective to eradicate unfair and deceptive trade practices, See State ex. rel.
Bryant v. R&A Inv. Co., 985 S.W.2d 299, 302 (Ark. 1999) (recognizing that the General Assembly
enacted the ADTPA “to protect the interest of. . . the consumer public”); Ark. Dep’t of Human
Servs. Div. of Econ. And Med. Serv. v. Walters, 866 S.W.2d 823, 825 (Ark. 1993) (instructing that
a “cardinal principle for construing” statues like the ADTPA is to “give appropriate regard to the
spirit which promoted its enactment [and] the mischief sought to be abolished”). In support of this
argument, Mr. Moore cites a string of cases from other jurisdictions. Mr. Moore also maintains

15

that adding a reliance element would run afoul of the “liberal construction” that is “appropriate.”
State ex rel. Bryant, 985 S.W.2d at 302.
The Court rejects Mr. Moore’s arguments and determines that, under Arkansas law,
reliance is an element of the false advertising claims he alleges under the ADTPA. Ark. Code
Ann. § 4-88-113(f) (granting a right of recovery to “any person who suffers actual injury as a result
of an offense or violation”); see White, 2013 WL 685298, at *7 (determining that, because plaintiff
did not state she “relied on particular false representations in making her decision to purchase the
vehicle,” she could not proceed with her ADTPA claims); Jarrett v. Panasonic Corp. of N. Am., 8
F. Supp. 3d 1074, 1084 (E.D. Ark. 2013) (same); Whatley v. Recontrust Co. NA, No. 3:10-CV00242 JLH, 2010 WL 4916372, at *6 (E.D. Ark. Nov. 23, 2010) (dismissing plaintiff’s claims
because plaintiff failed to allege that defendant’s “misrepresentations caused her to suffer any
actual damages or explain the nature of those damages. . . .”). The reliance standard for
misrepresentations by positive statement and ones by silence are slightly different under Arkansas
law. Erdman Co. v. Phoenix Land & Acquisition, LLC, No. 2:10-CV-2045, 2013 WL 3776373, at
*2 (W.D. Ark. July 17, 2013) (citing Lane v. Midwest Bancshares Corp., 337 F. Supp. 1200, 1208
(E.D. Ark. 1972)).

A party relying on misrepresentation-by-silence must show “that the

ascertainment of the undisclosed fact was not within the reach of the [party]’s diligent attention or
observation.” Erdman, 2013 WL 3776373, at *2 (quoting Brookside Village Mobile Homes v.
Meyers, 782 S.W.2d 365, 367 (Ark. 1990)).
The Mack Defendants maintain that Mr. Moore cannot demonstrate that he reasonably
relied on the alleged misrepresentation in making his purchase for several reasons. First, the Mack
Defendants disclaimed any “product specification inaccuracies.” (Dkt. 18, Exhibit B (“Mack’s
Prairie Wings is not responsible for typographical errors in pricing or product specification

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inaccuracies in our web site.”)). The Mack Defendants argue that, at a minimum, this language
put Mr. Moore on notice that he could not, and should not, rely on Mack’s for product
specifications. They contend that any reliance was not justified. See Barringer v. Hall, 202
S.W.3d 568, 573 (Ark. Ct. App. 2005) (upholding jury verdict in favor of defendant on fraud claim
brought by purchasers of a house partly on the basis that the jury could have found a lack of
justifiable reliance based on disclaimers in sale documents). Further, the Mack Defendants assert
that the documents Mr. Moore claims to have reviewed prior to his purchase included the exact
product dimensions of the Yeti® cooler he purchased and that, approximately three weeks before
his online purchase, Mr. Moore claims to have accessed Yeti® product information on the website
(Dkt. No. 18, Exhibit B). The Mack Defendants state that it is undisputed the product information
contained the dimensions of the cooler Mr. Moore purchased, as well as a diagram of those
measurements in relation to the parts of the Yeti® cooler, and that Mr. Moore does not allege that
those measurements were wrong. Instead, Mr. Moore claims that the reference to the cooler being
“45 Quart” is misleading. The Mack Defendants assert that Mr. Moore had the means to determine
the actual volume of the Yeti® cooler by making a simple calculation using the product dimensions
available but did not do so. They also assert that he ignored the actual product label affixed to his
Yeti® cooler, which explicitly stated the capacity was 9.4 gallons, which equates to 37.6 quarts
(Dkt. No. 18, Exhibit B). For all of these reasons, the Mack Defendants contend Mr. Moore cannot
satisfy his burden to demonstrate reasonable reliance.
Regardless of these points, this Court determines that the Mack Defendants are entitled to
summary judgment on Mr. Moore’s ADTPA claims because, as they point out, Mr. Moore does
not contend and more importantly offers no record evidence that the alleged false advertisements
caused him to purchase the Yeti® cooler or that he would not have purchased the cooler had he

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known it only held 37.6 quarts. The Court determines that absence of this proof is fatal to his
ADTPA claims. The Court also determines that this argument extends to Yeti. Because there is
no allegation or record evidence to support this essential element of Mr. Moore’s ADTPA claims,
the Court determines that the Mack Defendants and Yeti are entitled to summary judgment on Mr.
Moore’s ADTPA claims on this basis, as well.
4.

“Catch-All” Provision Of The ADTPA

Mr. Moore cites the same conduct and alleges that it also violates the catch-all provision
of the ADTPA. The Court determines that, based on his allegations, the catch-all provision is not
a viable path for Mr. Moore to bring an ADTPA claim. Arkansas Code Annotated §§ 4-88107(a)(1) and (3) expressly prohibit conduct that constitutes false advertising. Mr. Moore’s claims
against defendants are based on allegations of false advertising. The catch-all provision, by its
terms, prohibits conduct different than that addressed by subsections (a)(1) and (a)(3) of the
ADTPA.
The catch-all provision states that it prohibits “[e]ngaging in any other unconscionable,
false, or deceptive act or practice in business, commerce, or trade.” Ark. Code Ann. § 4-88107(a)(10). The language of the catch-all provision is not ambiguous. The Court gives the word
“other” its “ordinary and usually accepted meaning in the common language.” Cave City Nursing
Home, Inc. v. Ark. Dept. of Human Servs., 89 S.W.3d 884, 889 (Ark. 2002). It applies to conduct
other than conduct identified in subsections (a)(1) through (a)(9) and (a)(11) of the ADTPA. The
ADTPA must be construed to mean what is says. See, e.g., Universal Cooperatives, Inc. v. AAC
Flying Service, Inc., 710 F.3d 790, 795 (8th Cir. 2013) (using rule of statutory construction that
ordinary meaning of language must be used and finding, based on that rule, that “unconscionable,

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false, or deceptive” language of the catch-all provision of the ADTPA is not a general reference to
any unlawful conduct).
As explained in this Order, this Court concludes that intent is an element of a claim for
violation of the false advertising provision of the ADTPA, Curtis Lumber Co. v. Louisiana Pac.
Corp., 618 F.3d 762, 776 (8th Cir. 2010), and that justifiable reliance on the purportedly false
advertising is required to succeed on the claim, White v. Volkswagen Group of America, Inc., 2013
WL 685298, at *7 (W.D. Ark. Feb. 25, 2013). It is less clear whether these elements are required
in an ADTPA claim brought under the catch-all provision. See Philip Morris Co. v. Miner, 462
S.W.3d 313, 320 (Ark. 2015); Erdman Company v. Phoenix Land & Acquisition, LLC, 2013 WL
3776373, at *4-5 (W.D. Ark. July 17, 2013). Allowing the catch-all provision to apply to conduct
that equates to false advertising may create different standards of proof under the same statute
applicable to the same conduct. The Court will not read this Arkansas law to produce that result.
The only conduct about which Mr. Moore complains is defendants’ alleged
misrepresentation in the advertising of the volume of the Yeti® cooler. There is no “other”
unconscionable, false, or deceptive act or conduct alleged by Mr. Moore, and he has supplied no
record evidence to support “other” conduct. For these reasons, the Court concludes that, as a
matter of law, Mr. Moore may not maintain a claim under the catch-all provision of the ADTPA.
The Court determines that this argument extends to Yeti, as well. Therefore, the Court grants
summary judgment in favor of the Mack Defendants and Yeti on Mr. Moore’s catch-all ADTPA
claim. 1

1

Because the Court concludes that the acts Mr. Moore alleges are not subject to a claim
under the catch-all provision of the ADTPA, the Court declines to address the Mack Defendants’
argument that, even if a catch-all ADTPA claim existed on these facts, Mr. Moore could not
succeed on such a claim due to lack of causation or reasonable reliance allegations or record
evidence (Dkt. No. 19, at 16-17).
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5.

Injunctive Relief Under The ADTPA

Mr. Moore, as a private litigant, may not maintain an action under the ADTPA for
injunctive relief. The ADTPA provides that “the Attorney General of this state shall have
authority, acting through the Consumer Counsel, to file an action in the court designated in § 488-112 for civil enforcement of the provisions of this chapter, including, but not limited to, the
seeking of restitution and the seeking of an injunction prohibiting any person from engaging in
any deceptive or unlawful practice prohibited by this chapter.” Ark. Code Ann. § 4-88-104. “[T]he
plain language of the ADTPA does not provide for a private cause of action seeking injunctive
relief.” Baptist Health v. Murphy, 373 S.W.3d 269, 288 (Ark. 2010). The Mack Defendants and
Yeti are entitled to summary judgment in their favor on Mr. Moore’s ADTPA claim seeking
injunctive relief (Count III).
B.

Common Law Fraud And Deceit

Common law fraud or deceit under Arkansas law requires that a plaintiff show that: (1) he
has sustained damages; (2) a false representation of material fact was made by the defendant; (3)
the defendant knew that the representation was false; (4) the defendant intended to induce the
plaintiff to act in reliance upon the representation; and (5) the plaintiff justifiably relied upon the
representation in acting and as a result sustained damages. Ark. Model Jury Instr.—Civ. 402;
Knight v. Day, 36 S.W.3d 300, 302–03 (Ark. 2001). For an omission of material fact to be
equivalent to a false representation of material fact, a plaintiff must show that the defendant had a
duty to disclose the material fact. Bridges v. United Sav. Ass’n, 438 S.W.2d 303, 306 (Ark. 1969)
(citing 37 C.J.S. Fraud §§ 15, 16).
Liability for constructive fraud requires a plaintiff to show by a preponderance of the
evidence that: (1) a legal or equitable duty existed between the plaintiff and the defendant; (2) the

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defendant made a material misrepresentation of fact; (3) the misrepresentation was a breach of the
duty owed to the plaintiff; (4) the misrepresentation was of a type considered fraudulent because
of its tendency to deceive others; (5) the plaintiff justifiably relied on the misrepresentation; and
(6) the plaintiff was harmed as a result of the reliance. Knight, 36 S.W.3d at 303; Roach v. Concord
Boat Corp., 880 S.W.2d 305, 307 (Ark. 1994) (“The year model of the boat was misrepresented
to appellant which amounts to a material misrepresentation upon which appellant justifiably relied
to his detriment. In the absence of intentional wrongdoing, this amounts to constructive fraud,
which was proved by a preponderance of the evidence.” (internal citation omitted)).
This type of claim requires as an element justifiable reliance on the part of plaintiff. For
the reasons explained in this Order, Mr. Moore fails to allege or present record evidence of
reasonable reliance sufficient to survive summary judgment on this claim. For this reason, the
Mack Defendants and Yeti are entitled to summary judgment on Mr. Moore’s common law fraud
or deceit claim.
C.

Negligence And Gross Negligence Claim

Mr. Moore’s negligence and gross negligence claim is premised on the alleged
misrepresentation of the Yeti cooler volume (Dkt. No. 2, ¶¶ 50-51). Mr. Moore asserts a claim for
negligent misrepresentation. The Supreme Court of Arkansas has made clear that this type of
claim is not recognized under Arkansas law. South County, Inc. v. First Western Loan Co., 871
S.W.2d 325 (Ark. 1994). This Court declines to recognize such a claim under Arkansas law. For
this reason, the Mack Defendants and Yeti are entitled to summary judgment on Mr. Moore’s claim
of negligence and gross negligence.

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D.

Unjust Enrichment And Request For Constructive Trust

Under Arkansas law, an unjust enrichment claim requires proof that the defendant received
something of value to which he or she is not entitled and which he or she must restore. DePriest
v. AstraZeneca Pharmaceuticals, L.P., 351 S.W.3d 168 (Ark. 2009). This theory often is used as
a contractual theory when there is no written contract; the existence of an express contract bars a
claim of unjust enrichment. Servewell Plumbing, LLC v. Summit Contractors, Inc., 210 S.W.3d
101, 112 (Ark. 2005). “There must also be some operative act, intent, or situation to make the
enrichment unjust and compensable.” Indep. Cty. v. Pfizer, Inc., 534 F. Supp. 2d 882, 891 (E.D.
Ark. 2008), aff'd sub nom. Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009)
(quoting Hatchell v. Wren, 211 S.W.3d 516, 522 (Ark. 2005). A party who is free from fault
cannot have been unjustly enriched only because he chose to exercise a legal right. Pfizer, 534 F.
Supp. 2d at 891 (citing Hatchell, 211 S.W.3d at 522).
A constructive trust is a remedy similar to unjust enrichment, but it is not a separate cause
of action under Arkansas law. See, e.g., Jackson v. Smith, 380 S.W.3d 443, 453 (Ark. Ct. App.
2010) (“The remedy of constructive trust is available, therefore, if appellant prevails on any of her
causes of action remanded for trial.”). It is the imposition of a trust over monies obtained to which
defendant is not entitled.
The Mack Defendants contend that they are entitled to summary judgment on Mr. Moore’s
unjust enrichment claim because the Mack Defendants did not receive anything of value to which
they were not entitled. They maintain the undisputed evidence is that Mr. Moore paid the market
price for the Yeti® cooler he received, regardless of whether the cooler was 45 or 37.6 quarts, as
Yeti set the price (Dkt. No. 18, Exhibit A). It is undisputed that Mr. Moore did not return the
Yeti® cooler to Mack’s or exchange it for a larger capacity cooler (Dkt. No. 18, Exhibit B

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(explaining Mack’s return policy)). Instead, Mr. Moore kept the cooler and continues to use it.
The Court concludes that, on the undisputed facts, Mr. Moore cannot succeed on his unjust
enrichment claim. The Mack Defendants and Yeti are entitled to summary judgment in their favor
on Mr. Moore’s unjust enrichment claim.
E.

Breach Of Contract

To prevail on a breach of contract claim under Arkansas law, a plaintiff must show that:
(1) the plaintiff and defendant had a contract; (2) the contract required the defendant to perform a
certain act; (3) the plaintiff did what the contract required; (4) the defendant did not do what the
contract required; and (5) the plaintiff was damaged by the breach. Foreman Sch. Dist. No. 25 v.
Steele, 61 S.W.3d 801, 807 (Ark. 2001) (“A person may be liable for breach of contract if the
complaining party can prove the existence of an agreement, breach of the agreement, and resulting
damages.”); Ark. Model Jury Instr.—Civ. 2401. Mr. Moore relies on a product advertisement—
one he alleges was false—as the basis for his breach of contract claim. The Mack Defendants
assert that, under Arkansas law, there is no authority that a product advertisement constitutes a
contractual promise. See, e.g., DePriest v. AstraZeneca Pharmaceuticals, L.P., 351 S.W.3d 168,
180 (Ark. 2009) (determining that plaintiffs cited no authority that a product advertisement
constituted a quasi-contractual promise so as to maintain a breach of contract claim). Therefore,
they contend they are entitled to summary judgment as a matter of law on Mr. Moore’s breach of
contract claim. Mr. Moore cites no authority to counter this.
Given the controlling law, the Court grants summary judgment to the Mack Defendants
and Yeti on Mr. Moore’s breach of contract claim.

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F.

Warranty Claims

On June 23, 2016, Mr. Moore amended his state court complaint to add claims of breach
of express warranties, breach of the implied warranty of merchantability, and breach of the implied
warranty to conform with usage of trade (Dkt. No. 1, at 38-40). This amended complaint was filed
in this Court July 26, 2017 (Dkt. No. 2). The Mack Defendants did not address these warranty
claims in their motion for summary judgment (Dkt. No. 18), but they do brief the issue of summary
judgment on these claims in their reply (Dkt. No. 31). By this Order, the Court directs Mr. Moore
to respond to the Mack Defendants arguments regarding his warranty claims within 14 days from
the entry of this Order. The Mack Defendants will then have 7 days from Mr. Moore’s filing of
his response to file a reply, should they choose to do so. If appropriate, the Yeti defendants may
move to join in this portion of the motion, and Mr. Moore may timely respond to that request.
IV.

Conclusion

For the foregoing reasons, the Court grants summary judgment to the Mack Defendants
and Yeti on Mr. Moore’s ADTPA claims (Counts I and III), common law fraud or deceit claim
(Count II), negligence and gross negligence claim (Count VI), unjust enrichment claim (Count
IV), request for a constructive trust (Count V), and breach of contract claim (Count VII). The
Court directs further briefing on Mr. Moore’s breach of warranty claims consistent with the terms
of this Order.
It is so ordered this, the 29th day of September 2017.

_______________________________
Kristine G. Baker
United States District Judge

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