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On this date in 1896 the Dutch completed the harbor at IJmuiden.  (That capital J is not a mistake.  The I and J go together as a digraph, and they form a ligature that effectively makes up a single letter in the Dutch language.)  The IJmuiden harbor has an interesting history.  It connects Amsterdam to the North Sea via canals.  After the Germans invaded the Netherlands in 1940, the Dutch Royal family left the country from IJmuiden.  The Germans then used the IJmuiden harbor to house their torpedo boats and midget submarines.  After D-Day, the Allies bombed IJmuiden.  The American Air Force employed various weapons to penetrate the German concrete bunkers, including rocket-powered Disney bombs.  The bombs were named after war propaganda efforts by the Disney Studio.  Today IJmuiden harbor welcomes cruise ships.  It is a safe harbor.

(Yes, that is a rather long and pointless windup to get to our safe harbor case, but we are busily planning our Benelux Summer vacation, so you’ll have to excuse the travelogue/history.)

In the past we have had several opportunities to discuss state consumer protection laws containing “safe harbor” provisions that bar suits over conduct that was authorized, approved, or permitted by governmental agencies. Applying these safe harbor provisions, courts have dismissed consumer protection claims that attacked FDA-approved actions (usually labeling) after finding that the challenged conduct had the imprimatur of an agency.  One example was the DePriest case in the Arkansas Supreme Court.  The plaintiff in that case claimed that the defendant fraudulently marketed Nexium as better than older drugs that – allegedly – did essentially the same thing. The case was styled as an economic-loss-only class action.  The Arkansas Supreme Court threw the case out and we blogged about it here in 2009.

Continue Reading Consumer Food Fraud Claim Sinks in Arkansas Safe Harbor

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Last November we took note of a case where a federal court sought clarification from the Arkansas Supreme Court about the scope of claims for “illegal exaction.”  Now we have the answer, and lo, it is good.

For those of you who do not commit our old posts to memory, here is a refresher on Arkansas v. Takeda Pharmaceuticals North America, Inc.,  2013 U.S. Dist. LEXIS 160593 (W.D. La. Nov. 7, 2013).  The plaintiff (named Bowerman) brought an action against Actos manufacturers/sellers to recover costs borne by Arkansas and its citizens for injuries allegedly caused by Actos.   Bowerman never purchased or used Actos, but claimed standing simply by virtue of being an Arkansas taxpayer. The plaintiff sought a refund of money spent by the state to purchase Actos and to treat the injuries.  The theory relied upon by the plaintiff is called “illegal exaction,” which arises under the Arkansas Constitution and is defined as “any exaction that is not authorized by law or is contrary to law.”  That is broad language, but the theory was typically limited to allegations that public officials misappropriated public funds.  Unfortunately, there was enough muddiness in Arkansas law to prompt the federal court to certify questions to the Arkansas Supreme Court as to whether the “illegal exaction” theory was so vast or elastic as to permit Bowerman’s case to proceed.

Continue Reading Final Answer: Arkansas “Illegal Exaction” Theory Does Not Reach Drug Reimbursement

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“Tell your Mama, tell your Pa/I’m gonna send you back to Arkansas.”  The way Ray Charles sings those lyrics from “What’d I Say,” it sounds like a threat. What’s so terrible about ending up in the Razorback, excuse us, the “Natural” State?  How can we not adore a place that gave us Johnny Cash, Douglas MacArthur, and Maya Angelou?  Bear Bryant is justifiably famous for coaching Alabama (and, before that, Texas A&M),  but he was born in Arkansas. Because of Arkansas, we can buy really cheap poultry at Walmart.  Plus, we applaud a state legislature that officially endorsed the possessive form “Arkansas’s.”

What’s not to like?

Well, maybe you haven’t noticed, but we are defense lawyers. Arkansas courts ‘enjoy’ a reputation of serving up nasty home cooking to out-of-state corporate defendants. Certain counties in Arkansas are as friendly as parts of Southern Illinois are to class actions, mass actions, and just-plain-horrible actions.  We were delighted earlier this year when the U.S. Supreme Court held that plaintiffs cannot escape CAFA federal jurisdiction by submitting a bogus stipulation that the amount at issue was less than the $5 million jurisdictional minimum.  Standard Fire Ins. v. Knowles, 113 S. Ct. 1345 (2013).  That case came out of Arkansas, and the record was replete with recitals regarding Texarkana jurisprudence.  It made us think of Sling Blade – a movie whose star was that well-known Arkansas auteur, Billy Bob Thornton.  Put plainly, Arkansas seems to afford way too many opportunities to plaintiffs to create high-volume, high-stakes litigation that steers a case toward settlement via extortion.
Continue Reading Actos Court Asks Arkansas Supremes to Clarify Scope of “Illegal Exaction” Claims

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We (well, Bexis) doesn’t know all that much about Arkansas.  He’s only been there once – if driving through without stopping on I-55 to Memphis many years ago counts.  Even his massive (excessive?) million-plus word Harry Potter fanfic had only one Arkansas reference in it (about James Potter once being the lead singer for a Hogwarts band called “Black Oak Azkaban”).  Bexis did, however, vote for Bill Clinton twice (and would happily have done so in every election since – peace, prosperity, and budget surpluses look pretty good in retrospect).

But Razorback-related ignorance didn’t stop Bexis from purporting to state Arkansas law recently in our 50-state survey of hospital strict liability.  That post stated:


The Arkansas Supreme Court avoided the issue in Adams v. Arthur, 969 S.W.2d 598, 614 (Ark. 1998) (“we do not decide whether a hospital . . . may be strictly liable as a supplier”).  The holding in Adams – that the strict liability claims were barred by the statute of limitations applicable to malpractice claims – is suggestive that no separate cause of action for strict liability exists, but that’s not the ruling. There’s also mention of a holding rejecting hospital strict liability in Kirkendall v. Harbor Insurance Co., 698 F. Supp. 768, 770 (W.D. Ark. 1988), but it’s in a procedural history discussion.  If somebody has access to the order in Kirkendall, please send it to us.

That turned out well (no, nobody sent the missing Kirkendall order, but that hardly matters anymore).  Apparently, Bexis missed the crucial case, at least according to some recent opinions that we’ve learned about on this topic.  See Wages v. Johnson Regional Medical Center, ___ F. Supp.2d ___, 2013 WL 120888 (W.D. Ark. Jan. 9, 2013); Shepherd v. Baptist Health, ___ F. Supp.2d ___, 2012 WL 6811076 (E.D. Ark. Nov. 30, 2012); Gunn v. St. Vincent Infirmary Medical Center, 2012 WL 6811786, *1 (E.D. Ark. Nov. 29, 2012).

Continue Reading On Speaking Too Soon