United States District Court, E.D. Arkansas, Western Division
JAMES MOORE, on behalf of himself and all similarly situated persons and entities PLAINTIFF
MACK'S SPORT SHOP, LLLP d/b/a MACK'S PRAIRIE WINGS, LLLP, and YETI COOLERS, LLC DEFENDANTS
OPINION AND ORDER
Kristine G. Baker, United States District Judge
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).
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. § 4-88-107(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.
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.
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.
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).
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.
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.
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.
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 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.
Summary Judgment Standard
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).
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 (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).
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)).
Actual Damages Or Injury
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 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.
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 Ford Explorer sport
utility vehicles (‘Explorers') purchased or leased
in the State of Arkansas.” Id.
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.
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.
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
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.
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 ...