CHAD PARNELL, AN ARKANSAS CITIZEN ON BEHALF OF HIMSELF AND ALL OTHER ARKANSAS CITIZENS SIMILARLY SITUATED APPELLANT
FANDUEL, INC. APPELLEE
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CV-17-639]
HONORABLE LYNN WILLIAMS, JUDGE.
Wright, Gray, by: Scott Poynter, of Counsel, and Nate Steel,
Friday, Eldredge & Clark, LLP, by: William A. Waddell,
Jr., for appellee.
A. Womack, Associate Justice.
Chad Parnell filed a class-action lawsuit against FanDuel,
Inc., in the Garland County Circuit Court, alleging
violations of the Arkansas Deceptive Trade Practices Act
(ADTPA) and unjust enrichment on behalf of himself and the
putative class. The circuit court dismissed Parnell's
complaint and the class-action allegations. We affirm.
opened an account with FanDuel, which offers Internet-based
fantasy sports games on its website, fanduel.com. On June 22,
2017, Parnell filed a class-action lawsuit in the circuit
court alleging that FanDuel ran a series of advertisements
promoting its fantasy sports games, which informed new
subscribers that if they deposited $200 into their account,
FanDuel would match their deposit with $200. In his
complaint, Parnell alleged that this advertising was illegal
because FanDuel did not match his $200 deposit when he opened
his account. Parnell alleged violations of the ADTPA and
unjust enrichment on behalf of himself and the putative
class. Parnell submitted the following proposed class
All citizens of the State of Arkansas that subscribed to
FanDuel's service by opening an account with a sum of
$200.00 from August 1, 2015, to December 31, 2015 (the
"Class Period"). Excluded from the Class are the
presiding judge, and his/her immediate family members, and
Defendant's officers, directors, employees, and agents.
subsequently moved to dismiss the action based upon an
amendment to the ADTPA passed by the General Assembly in
2017. The amendment, then House Bill 1742, made two
alterations to the existing law pertinent to this case.
First, it changed the remedy available to civil litigants to
the recovery of their "actual financial loss."
Second, the amendment prohibited private class actions under
the ADTPA. 2019 Ark. Acts 986, §§ 2, 3. In its
motion to dismiss, FanDuel argued that Parnell's
complaint failed to allege an actual loss and also that the
class allegations could no longer be maintained under the
amended ADTPA. The circuit court agreed with FanDuel and
dismissed both Parnell's complaint and the class
Standard of Review and Applicable Law
reviewing a circuit court's decision on a motion to
dismiss under Ark. R. Civ. P. 12(b)(6), this court treats the
facts alleged in the complaint as true and views them in the
light most favorable to the party who filed the complaint.
Travelers Cas. & Sur. Co. of Am. v. Ark. State
Highway Comm'n, 353 Ark. 721, 120 S.W.3d 50 (2003).
In testing the sufficiency of the complaint on a motion to
dismiss, all reasonable inferences must be resolved in favor
of the complaint, and the pleadings are to be liberally
construed. Id. However, Arkansas law requires fact
pleading, and a complaint must state facts, not mere
conclusions, in order to entitle the pleader to relief.
court has previously articulated that class-action cases may
be dismissed at the pleading stage prior to class
certification on an Ark. R. Civ. P. 12(b)(6) motion to
dismiss for failure to state facts upon which relief can be
granted. See Speights v. Stewart Title Guar. Co.,
358 Ark. 59, 65-A, 186 S.W.3d 715 (2004) (supplemental
opinion on denial of rehearing); Kersten v. State Farm
Mut. Auto. Ins. Co., 2013 Ark. 124, at 1-2, 426 S.W.3d
455, 457. Further, Rule 23(b) calls for the circuit court to
determine whether a case can be maintained as a class action
"[a]t an early practicable time after the commencement
of an action." Ark. R. Civ. P. 23(b).
argues that but for FanDuel's advertisements of matching
deposits, he would not have created a FanDuel account and
deposited $200. As such, he did not receive the benefit of
their bargain and lost $200 by taking FanDuel's bait.
Because Parnell pled that he was deceived by FanDuel's
advertised promise to match $200 deposits with ...