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.

Columbia County wet/dry petition gathers enough signatures, issue will be on November ballot

Chaney Law Firm client Vote for Growth in Columbia County has successfully filed a valid "local option" petition with the Columbia County Clerk. The county's long-standing dry status may be changing in the November election.

Under Arkansas law, the only way to change a county from dry to wet (or vice versa) is to file a local option petition. The requirements are strict; supporters of the petition must gather signatures from 38% of the registered voters in the county.

Vote for Growth in Columbia County turned in more than 1900 petition pages containing over 8000 signatures. On Tuesday evening, the Columbia County Clerk reported that the petition contained at least 4954 valid signatures, which is the minimum number required to get the issue certified. At least 1000 additional signatures must still be reviewed.

You can read more coverage on the Columbia County effort from the Arkansas Times and the Magnolia Reporter. These types of campaigns cost a significant amount of money, and you can donate online to help with the costs.

Our firm has helped several counties through the local option process. If you're interested in a local option election in your county, take a look at our overview here. We also have many blog posts on local option elections and general election law. We invite you to take a look.

The Hog Call®, now a registered trademark

The University of Arkansas received a trademark registration earlier this month for the Hog Call, the ubiquitous chant at Arkansas sporting events, weddings, pubs, and anywhere else a few Hog fans get together. I vividly remember watching the '03 Auburn-Arkansas game with a bunch of alums in Washington, D.C. while in law school. We called the Hogs. And called the Hogs. And called the Hogs. I'm sure the waitstaff was happy to see us leave. Unfortunately, we were too far away to be heard, and the Hogs fell 10-3. 

As part of any trademark application, the owner has to show that the owner itself uses the mark in commerce, and that the mark functions as an indicator of source. The trademark examiner initially objected to registration of the Hog Call on both grounds, claiming that a video of a crowd performing the Hog Call didn't prove that (1) the crowd would recognize the Hog Call as indicating the UofA as the source of the chant; and (2) the UofA wasn't technically performing the Hog Call in the video.

Undeterred, the UofA filed a new video with the Trademark Office showing none other than Frank Broyles performing the Hog Call. If Frank Broyles back in the day didn't represent the UofA, no one could. Here's the video:

This video was plenty for the examiner to withdraw both objections and grant the registration.

One interesting aside: in order to enforce a trademark for infringement damages, you have to provide notice of the registration by using the "®" symbol or using the words "Registered in U. S. Patent and Trademark Office" or "Reg. U.S. Pat. & Tm. Off." in connection with the mark. How do you do that with a sound?

It sounds weird to hear that a sound can be registered as a trademark, but it's true. There are many examples, such as the NBC chime, the MGM lion (start Dark Side of the Moon on the third lion's roar during the Wizard of Oz), the Looney Tunes theme song, and many more. Check out some examples on the USPTO's website here.

Keep safe on the water with these boating safety tips

As a long Independence Day weekend quickly approaches, many of us will be heading to lakes and rivers to relax. Unfortunately, these summer holidays usually see an uptick in tragic, avoidable incidents. The Arkansas Game & Commission has a website dedicated to boating safety, which we hope you'll visit. You can also download a free PDF of the Arkansas Boating Handbook. Some of the high points include:

• Boat operators born in 1986 or later must have an AGFC-approved operator's card in their possession. The course and exam cost $24.50 and is available online. There is no minimum age to take the exam.
• Make sure your liability insurance policy is current on your boat (for jet skis and boats 50 hp or more).
• Let a relative know where you're going in case of an emergency.
• Be sure to pack sun block. No one likes looking like a lobster at work after a holiday weekend.
• If you're going to be out at night, make sure all lights on the boat are operational.
• Don't overload your boat — most boats have a yellow and white capacity plate. I once saw a party barge with 20+ people on it plow the front end under the surface of the water. It threw many of the passengers to the floor of the boat. Luckily, no one was injured.
• Wear life jackets, especially when under power. Be prepared to throw a flotation device to anyone falling overboard. Make sure life jackets for kids are weight-appropriate.
• Keep a good lookout, and maintain a safe speed and distance from other boats. 
• Don't operate any boat under the influence of alcohol or drugs. Patrol boats can and will pull you over, and patrols increase on holidays.
• Don't litter, and avoid glass containers. There's nothing like a sliced foot to ruin a perfectly good weekend.

Enjoy your holiday weekend, and be safe out there! Peace!

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Dateline investigation of "paper reviews" used to deny claims

Check out this NBC Dateline series (there are 4 parts), which describes how State Farm and other insurance companies use a "paper review" process to deny claims. Non-doctors write reports that are signed by doctors, oftentimes without review of records by the actual doctor. Doctors sign 30-50 reports in "autograph sessions" without reviewing records, and the reports were often changed after being signed by doctors. The reports were written in a way slanted in favor of the insurance companies to downplay injuries, limit claim payments, and cut care. 

Part 2 of 4:

Part 3 of 4:

Part 4 of 4: