Durante mucho tiempo no había principios uniformes para la Atribución de nombres a los antibióticos https://antibioticos-wiki.es . Más a menudo se les llama por el nombre genérico o especie del producto, con menos frecuencia-de acuerdo con la estructura química. Algunos antibióticos se nombran de acuerdo con el lugar donde se asignó el producto.
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RECENT DEVELOPMENTS Product Liability—Eighth Circuit Adopts Narrow View: Only APLA Failure-to-Warn/Mislabeling Claims Against Generic Manufacturers Are Preempted Under Mensing; Design-Defect and Implied-Warranty Claims Are Still Viable
The Court of Appeals for the Eighth Circuit recently
issued a pair of opinions interpreting the United States
Supreme Court’s decisions in PLIVA, Inc. v. Mensing, 131
S. Ct. 2567 (2011), and Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013). The Eighth Circuit’s
decisions concerned federal preemption over claims against
generic drug manufacturers under the Arkansas Product
Liability Act (APLA) and interpreted the viability of
APLA claims against brand-name drug manufacturers
brought by plaintiffs who only came into contact with the
generic equivalent of the brand-name products.
Bell v. Pfizer, Inc., The Eighth Circuit interpreted the APLA to bar any
claims brought against brand-name drug manufacturers by
plaintiffs who were prescribed brand-name medications but
filled those prescriptions with generic equivalents. The
court determined these claims fail the necessary element of
proximate cause through brand identification. The Eighth
Circuit also interpreted the APLA proximate-cause
standard as applying to all claims against product
manufacturers, even if plaintiffs couch their claims in
common-law theories of negligence, fraud, or
misrepresentation, instead of strict product liability.
Regarding APLA claims against generic drug
manufacturers, the Eighth Circuit held that the United
States Supreme Court’s decision in Mensing preempted
failure-to-warn claims based on the labeling of generic
medications. However, the Eighth Circuit declined to
extend this preemption to APLA claims for design defect
The Bell opinion arose out of multiple claims brought
by Shirley J. Bell, who was prescribed the brand-name drug
Reglan (manufactured by Pfizer) in January 2008 to treat
abdominal pain. As permitted by Arkansas law, Bell’s
pharmacist substituted Reglan with a generic form of
metoclopramide (manufactured by Pliva). Bell took the
generic drug through December 2008 and alleged that she
developed tardive dyskinesia, a neurological disorder that
the Food and Drug Administration (FDA) has since linked
to prolonged exposure to Reglan and metoclopramide. In
2004, the FDA approved new labeling for Reglan that
warned use should not exceed twelve weeks. However,
Pliva did not add this new warning language to its
metoclopramide products. In 2009, after Bell’s prescription
expired, the FDA began requiring all metoclopramide
manufacturers to include a black box warning specifically
addressing the risks of tardive dyskinesia. Bell faulted Pliva
and the brand-name manufacturers for not adequately
informing her and her doctor, prior to 2009, of the risks
Bell filed a product-liability action against the generic
and brand-name manufacturers on April 12, 2010, claiming
negligence, failure to warn, strict liability, breach of
warranty, misrepresentation, suppression of evidence,
fraud, and gross negligence. Bell also brought a cause of
action against Pliva for failing to incorporate the 2004
warning language. The United States District Court for the
Eastern District of Arkansas dismissed all claims asserted
Chief Judge Riley, writing for the Eighth Circuit,
upheld the dismissal of all claims against the brand-name
defendants because Bell stipulated that she had never
ingested Reglan (the brand-name drug manufactured by
Pfizer). Therefore, she failed the necessary threshold
showing of proximate cause through brand identification, as
required for all product-liability claims——even claims
based in common-law theories not explicitly brought under
the APLA. Chief Judge Riley based this decision on an
earlier Eighth Circuit opinion—Mensing v. Wyeth, Inc., 658
F.3d 867 (8th Cir. 2011)—that interpreted a Minnesota
statute similar to the APLA and found brand-name
manufacturers do not owe a duty of care to users of their
Additionally, the Eighth Circuit upheld the dismissal
of a portion of Bell’s claims against Pliva. First, the Eighth
Circuit upheld the dismissal of Bell’s claim based on Pliva’s
failure to incorporate the 2004 warning language,
concluding that the claim was not viable under Arkansas’s
learned-intermediary doctrine. Bell’s physician, who
prescribed Reglan (which included the warning), should
have known of the recommended 12-week warning.
Therefore, the physician’s failure to communicate this
warning to Bell broke the causal chain to Pliva’s failure to
update. (citing Ehlis v. Shire Richwood, Inc., 367 F.3d 1013,
Next, the Eighth Circuit addressed Bell’s claim that
even the 2004 language would have been an insufficient
warning, and therefore, a failure-to-warn action still existed
at the time of Bell’s exposure. Upholding the Eastern
District’s dismissal, Chief Judge Riley noted that the
United States Supreme Court’s 2011 decision in Mensing
held that the Federal Food, Drug, and Cosmetic Act
(FDCA), 21 U.S.C. § 301, et seq., which requires generic
drugs to carry exactly the same warning labels as their
brand-name equivalents, preempted any claims brought
against generic manufacturers under failure-to-warn
theories. (citing PLIVA, Inc. v. Mensing, 131 S. Ct. 2567,
2572 (2011). Therefore, under Mensing, the Eighth Circuit
held that the FDCA preempted Bell’s claims based on
Pliva’s failure to create its own warning prior to the 2009
FDA update because Pliva had the legal right to
independently issue such a warning under federal law.
However, noting a growing circuit split over the scope
of Mensing’s preemption holding, the Eighth Circuit
reinstated Bell’s claims against Pliva for design defect and
breach of warranty, adopting the narrow view offered by
the Court of Appeals for the First Circuit in Bartlett v. Mutual Pharmaceutical Co., 678 F.3d 30 (1st Cir. 2012),
rev’d 133 S. Ct. 2466 (2013), which interpreted New
Hampshire law. Under Bartlett, the federal generic drug-
labeling restrictions do not preempt claims that are not tied
specifically to a failure to warn, such as design defect and
implied warranty. Bartlett, 678 F.3d at 37-38.
But on June 24, 2013, just two weeks after the Eighth
Circuit’s decision in Bell, the United States Supreme Court
overturned the First Circuit’s holding in Bartlett. Mut. Pharm. Co.v. Bartlett, 133 S. Ct. 2466 (2013). Fullington v. Pfizer, Inc.,
In wake of the Supreme Court overturning the First
Circuit’s Bartlett opinion—which was a significant basis for
the Eighth Circuit’s decision in Bell—Circuit Judge
Gruender reaffirmed Bell, holding that, under Arkansas
law at least, federal law does not preempt design-defect
claims against generic drug manufacturers.
With facts almost identical to Bell, Joyce Fullington
brought the same slate of claims against Pfizer and Pliva
under Arkansas law. Like Bell, the District Court for the
Eastern District of Arkansas dismissed all of Fullington’s
claims as either not viable under the APLA or preempted
Once again, the Eighth Circuit overturned the Eastern
District’s dismissal of the plaintiff’s claims for design defect,
holding that such claims did not fall under the Supreme
Court’s Mensing standard for federal preemption. The
Eighth Circuit distinguished Bell from the First Circuit’s
now-overturned Bartlett opinion by observing differences
between the elements of design defect under New
Hampshire and Arkansas law. Whereas New Hampshire
design-defect claims rely on a risk-utility analysis (that
incorporates elements of failure to warn) to find an
“unreasonably dangerous product,” the Eighth Circuit
interpreted Arkansas’s design-defect standard for finding
an unreasonably dangerous product as a consumer-
expectations test. (citing ARK. CODE ANN. § 16-116-
1. Although the Eighth Circuit asserts that Arkansas law applies the
consumer-expectations test, other courts have observed ongoing confusion as to whether Arkansas courts have explicitly adopted any standard. See Freeman v.
102(7)(A) (Repl. 2006 & Supp. 2013); Purina Mills, Inc. v. Askins, 317 Ark. 358, 875 S.W.2d 843, 847 (1994); Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653
S.W.2d 128, 133 (1983)). The Eighth Circuit held that,
because of this different standard, the possibility exists for
bringing a design-defect claim in Arkansas without running
afoul of the federal generic-drug-labeling requirements.
Writing separately in concurrence, Circuit Judge
Murphy noted that the United States Supreme Court’s
broad application of federal preemption over generic-drug
claims in Mensing and Bartlett has “severely eroded” the
basis for the Eighth Circuit’s earlier Wyeth opinion (on
which the Eighth Circuit relied in Bell and Fullington),
which found that brand-name manufacturers do not have a
duty to the users of generic equivalents. (citing Mensing v. Wyeth, Inc., 588 F.3d 603, 613 n.9 (8th Cir. 2009)). Judge
Murphy observed that, under federal law and the recent
Supreme Court opinions, brand-name manufacturers are
now “solely responsible” for the labeling and
manufacturing of the generic equivalents to their drugs;
therefore, they cannot argue that such decisions are not
directed at the consumers of those generic products.
Caterpillar, Inc., No. 3:02–CV–00039 GTE, 2006 WL 6850715, at *9-10 (E.D. Ark. July 17, 2006).
Foreclosure—The Eighth Circuit Interprets Arkansas Law as Allowing Out-of-State Financial Institutions to Utilize the State’s Non-Judicial Foreclosure Procedure Even If They Are Not Registered with the Secretary of State to Do JPMorgan Chase Bank, N.A. v. Johnson, The Eighth Circuit recently interpreted Arkansas law
as allowing nationally chartered banks to use the Arkansas
non-judicial foreclosure statute, even if they are not
registered with the Secretary of State to do business in
This opinion arose after several Arkansas borrowers
challenged the foreclosure of their homes by JPMorgan
Chase through Arkansas’s statutory, non-judicial
foreclosure process. The borrowers sought relief by filing
for Chapter 13 protection in the United States Bankruptcy
Court for the Eastern District of Arkansas. Because the
court needed to determine the amount of arrearage owed
on the homes for purposes of confirming a Chapter 13 plan,
the bankruptcy judge held a hearing on the validity of the
In challenging the foreclosures, the borrowers relied
on the Arkansas Statutory Foreclosure Act (SFA), ARK.
CODE ANN. § 18-50-101, et. seq., which governs the process
whereby banks and mortgage companies can initiate
foreclosure proceedings without judicial supervision. In
2003, the Arkansas General Assembly amended the SFA to
restrict use of the SFA-created, non-judicial foreclosure
process, stating that no bank or mortgage company “shall
avail themselves of the procedures under this chapter
unless authorized to do business in the state.” (quoting
ARK. CODE ANN. § 18-50-117 (Repl. 2003)). The borrowers
interpreted this authorization language to mean only banks
registered to do business with the Arkansas Secretary of
State could use the non-judicial foreclosure process.
Therefore, JPMorgan Chase, who was not so registered,
had improperly foreclosed on the borrowers’ homes.
The bankruptcy court agreed with the borrowers’
interpretation, holding that JPMorgan Chase’s non-judicial
foreclosure violated the SFA. JPMorgan Chase appealed
to the United States District Court for the Eastern District
of Arkansas, which reversed the bankruptcy court’s
decision. The district court interpreted the statute’s
authorization requirement to include any valid
authorization to do business, not limited specifically to a
registration with the Arkansas Secretary of State. Since
JPMorgan Chase is a federally chartered bank regulated at
the United States Office of the Comptroller of the
Currency, the court concluded the bank was sufficiently
authorized to do business anywhere in the country,
including Arkansas. Therefore, JPMorgan Chase was
“authorized to do business” in the state for the purposes of
In affirming the district court’s decision, Judge Bye,
writing for the Eighth Circuit, relied on similar logic.
Though Judge Bye mentioned the Arkansas General
Assembly had implemented the “authorization”
requirement in 2003 in response to concerns over “foreign
entities” using the non-judicial foreclosure process “often
times . . . to the detriment of Arkansas citizens,” he
concluded that such concerns were not directed at
nationally chartered banks, which derive their authorization
on a national level through the National Bank Act (NBA)
and federal regulation. (quoting Act 1303, 2003 Ark. Acts
Judge Bye based this prediction of Arkansas law
primarily on the construction of authorization language
within other provisions of the SFA. In particular, he
focused on the relationship between the broad “shall avail”
language in the SFA’s 2003 amendment and section 18-50-
102(a)(2), which allows “any ‘[b]ank or savings and loan
authorized to do business under the laws of Arkansas or
those of the United States’” to serve in the role of a trustee
as part of a non-judicial foreclosure. (emphasis omitted)
(quoting ARK. CODE ANN. § 18-50-102(a)(2) (Repl. 2003).
In discussing this reasoning, Judge Bye broadly
interpreted the meaning of “avail” in the 2003 language as
prohibiting such non-registered entities from any
participation in the non-judicial foreclosure process, not
just initiation of the process, as the borrowers argued.
Therefore, the court determined that a narrow reading of
the 2003 amended authorization as requiring Arkansas-
specific authorization to do business in the state, combined
with a broad interpretation of “avail,” would create an
inconsistency within the statute. If section 18-50-117
prohibited nationally chartered banks from any
participation in the non-judicial foreclosure process, it
would conflict with section 18-50-102(a)’s explicit
authorization for nationally chartered banks to serve as
Since the Eighth Circuit would not assume the
Arkansas General Assembly intended such an
inconsistency within the Arkansas Code, it interpreted the
broad authorization language of section 18-50-102(a)—
which provides that federal authorization is sufficient for
the purposes of authorization to participate as a trustee—as
governing the definition of “authorization” throughout the
remainder of the SFA portion of the Arkansas Code.
TILA/Mortgage Recision—The Eighth Circuit Interprets TILA as Requiring Mortgage Borrowers to File a Recision Lawsuit Within the Statutory Three-Year Window Following a TILA Disclosure Violation; Written Notice to the Lender of Intent to Rescind Is Insufficient Keiran v. Home Capital, Inc., The Court of Appeals for the Eighth Circuit recently
considered a circuit split regarding preservation of
mortgagee recision rights under the Truth in Lending Act
(TILA). The court adopted the view that borrowers must
file a lawsuit to rescind their mortgages within the three-
year window provided by TILA to preserve their right to
rescind the mortgage after a lender violates the Act’s notice
At closings for loans secured by a principal dwelling,
TILA requires the lender to provide two copies of: (1) the
notice of the borrower’s right to rescind unconditionally
within three days; and (2) a TILA disclosure statement
outlining the terms and conditions of the loan repayment.
If a creditor fails to make these disclosures in the exact
manner prescribed, the borrower may rescind the mortgage
anytime within three years after the date of consummation
of the transaction under 15 U.S.C. § 1635(f).
Two couples, the Keirans and Sobieniaks, filed
separate actions to rescind their mortgages after their
lenders failed to provide two copies of the TILA disclosure
agreement at closing. Within three years of this TILA
disclosure violation, both couples sent written recision
notices to their mortgage holders, believing such written
notice was sufficient to preserve their rights within the
three-year statute of repose. After the mortgage holders
denied the written recision notices, the couples filed
recision lawsuits. Because the three-year window had
lapsed by the time the couples filed their lawsuits, the
district court dismissed both suits as untimely. Both
couples appealed, arguing that the TILA statutory language
only requires written notice within the three-year window
In opening its discussion of the issue, the Eighth
Circuit noted a circuit split on interpreting the repose
provision. The court noted that the Third and Fourth
Circuits have adopted the view that written notice of the
intent to rescind within three years is sufficient to satisfy
the statute of repose. (citing Sherzer v. Homestar Mortg. Servs., 707 F.3d 255 (3d Cir. 2013); Gilbert v. Residential Funding LLC, 678 F.3d 271 (4th Cir. 2012)). In adopting
this view, both circuits relied heavily on Regulation Z (the
regulation implementing TILA), which states: “To exercise
the right to rescind, the consumer shall notify the creditor
of the recision by . . . written communication.” (quoting 12
C.F.R § 226.23(a)(2)). These circuits read Regulation Z’s
plain language as establishing that a borrower must only
provide written notice to his creditor to properly exercise
his right of recision under TILA. Both circuits noted that
the regulation does not mention the need for a formal
However, the Eighth Circuit sided with the alternate
view promulgated by the Ninth and Tenth Circuits—that,
generally, courts must strictly construe statutes of repose as
completely extinguishing the right concerned at the time
the repose period lapses. (citing Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1188 n.12 (10th Cir. 2012); McOmie-
Gray v. Bank of Am. Home Loans, 667 F.3d 1325, 1328 (9th
Cir. 2012)). According to the Tenth Circuit, such
provisions are to “‘serve[] as an unyielding and absolute
barrier to a cause of action’” intended to provide
defendants with peace. (quoting Rosenfield, 681 F.3d at
1182-83). If borrowers could preserve their right to rescind
through only written notice of their intent to rescind at
some future date, such a threat could cloud the lender’s
ability to act on its right to title through a foreclosure. The
Eighth Circuit agreed and held that such an uncertain
scenario defeats the presumed purpose of a statute of
In her dissent, Judge Murphy noted that Congress
intended TILA to be a remedial statute “construed broadly
in favor of consumers.” (quoting Rand Corp. v. Yer Song Moua, 559 F.3d 842, 845 (8th Cir. 2009)) (internal quotation
mark omitted). Therefore, where the statutory language
does not mention a requirement that plaintiffs file a lawsuit
to preserve a consumer right, the court should presume that
Congress did not intend such an anti-consumer provision.
Further, Judge Murphy pointed out that any extended
cloud on the lender’s rights as the result of a written
recision notice would be due to the lender’s own inaction.
Once a lender receives such notice, it has the right either to
negotiate with the borrower or to deny the borrower’s right
completely and proceed to litigation (as occurred with the
notices provided in the instant case). Finally, Judge
Murphy echoed the First Circuit’s holding that the obvious
legislative intent in TILA was to encourage lenders and
borrowers to work out recision matters privately without
always relying on the slower and more costly formal court
proceedings. (citing Belini v. Wash. Mut. Bank, FA, 412
Jesinoski v. Countrywide Home Loans, Inc.,
729 F.3d 1092 (8th Cir. 2013) (per curiam).
In a per curiam opinion issued on September 10, 2013,
addressing facts nearly identical to those in Keiran, the
sitting panel of judges wrote that the Keiran precedent
required them to affirm the district court’s dismissal of the
borrower’s recision suit as outside the statute of repose.
However, Judges Melloy and Colloton wrote separately to
express their belief that the court wrongly decided Keiran.
Sentencing—Arkansas Supreme Court Denies Judges’ Discretion to Suspend Enhanced Criminal Sentences Imposed by Statute and Holds All Suspensions of Enhanced Sentences Allowed Under Law Must Run Concurrently with the Primary Sentence State v. Colvin,
2013 Ark. 203, ___ S.W.3d ___ (May 16, 2013).
The Arkansas Supreme Court recently held that state
judges do not have the discretion to suspend or otherwise
alter enhanced sentences when a statute mandates such
sentences. Within this opinion, the court also found that
Arkansas law requires all suspended enhanced sentences to
run concurrently with the primary sentence.
Telecia Colvin was convicted of aggravated assault on
a family member after testimony revealed that she
purposefully crashed her vehicle into the driver’s side of a
car driven by Robert Redmon, the father of Colvin’s infant
daughter. Testimony also revealed that the infant daughter
was in Colvin’s vehicle at the time of the assault. After a
bench trial, the Pulaski County Circuit Court suspended the
imposition of a sentence for five years. The court sentenced
Colvin to a one-year enhancement under section 5-4-702 of
the Arkansas Code for committing the offense in the
presence of a child. Over the prosecution’s objection, the
court also suspended the one-year enhancement, which
Colvin was to serve consecutive to the suspended, primary
The prosecution appealed, claiming the suspension of
the statutory enhancement constituted an illegal sentence
that interfered with the uniform administration of the
enhanced-sentencing law. Colvin argued that section 5-4-
702 was not a mandatory sentencing provision and that the
Arkansas statutes prohibiting alternative sentencing for
certain enumerated offenses—sections 5-4-104 and 5-4-301
of the Arkansas Code—do not mention assault in the
Justice Courtney Hudson Goodson, writing for the
majority, agreed with the prosecution and overturned the
judge’s suspension of the enhanced sentence. The court
noted section 5-4-702 provides that a person found to have
committed certain acts in the presence of a child “may be
subject to an enhanced sentence of an additional term of
imprisonment of not less than one (1) year” that must be
served “consecutive to any other sentence imposed.”
(quoting ARK. CODE ANN. § 5-4-702(a), (d) (Repl. 2006))
(internal quotation marks omitted). The court noted,
however, that “if the enhanced sentence is suspended, other
sentencing law requires periods of suspension to run
concurrently with other suspended sentences and other
terms of imprisonment.” (citing ARK. CODE ANN. § 5-4-
The prosecution, along with the majority, cited to
Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006), as
standing for the proposition that the word “may” in section
5-4-702 refers to the prosecution’s option to decide whether
to seek an enhancement, not a judge’s discretion on the
manner in which to apply the enhancement. Furthermore,
the court determined that section 5-4-307’s “concurrently”
requirement for any suspended sentence conflicts with
“Accordingly, suspension defeats the clear legislative intent
for the enhanced sentence to be served consecutively to the
sentence imposed for the designated felony.” Therefore,
the court held that sentencing enhancements are not
Consistent with Sullivan, the Colvin court read the
statutory language as evidencing a clear legislative intent
that the enhancement be mandatory and not subject to
alternative sentencing. Although the court affirmed that,
generally, courts must strictly construe penal statutes with
any doubts resolved in favor of the defendant, the
“obvious” legislative intent of section 5-4-702 placed it
outside the reach of any doubt that might trigger the
In their dissenting opinions, Justices Baker and Hart
argued that the majority abandoned the established
precedent that courts must strictly construe criminal
statutes by their plain language and that the plain language
of section 5-4-702 does not mandate imprisonment or
exclude the alternative sentencing otherwise available
under Arkansas law. Further, the dissent argued section 5-
4-307(b)(1)—the statute that the majority construed to
disallow suspended enhancements—is a general statute that
does not apply where a specific statute exists (such as the
“consecutive” language in section 5-4-702). Therefore, a
consecutively running, suspended enhancement is a viable
option under Arkansas law, and the presence of the
“consecutive” language does not speak at all to the
legislative intent regarding alternative sentencing
Finally, Justice Hart wrote that in Sullivan—the
precedent relied on by the majority—the Arkansas
Supreme Court actually affirmed a trial court’s sentence
that included a one-year suspended enhancement.
Taxation of Fees/Sovereign Immunity—The Arkansas Supreme Court Holds the State’s Sovereign Immunity Trumps Arkansas Supreme Court Rule 6-7, Prohibiting Taxation of Appellate Costs Against the State. Kiesling-Daugherty v. State,
The Arkansas Supreme Court recently held that the
State of Arkansas, under sovereign immunity, does not
have to award appellate costs—which Arkansas Supreme
Court Rule 6-7 might otherwise allow—to a litigant whose
criminal conviction was overturned on appeal.
After successfully appealing a criminal speeding
violation, Partne Kiesling-Daugherty sought an award of
appellate costs against the Attorney General under Rule 6-
7, which allows the court to assess such costs against an
unsuccessful party. Kiesling-Daugherty contended that
such an award did not violate the doctrine of sovereign immunity because the State, through the local prosecutor
and Attorney General, voluntarily waived such immunity
when it submitted itself to the power of the court as the
moving party seeking specific relief in bringing the initial
Writing for the majority, Chief Justice Hannah
recognized that sovereign immunity might be overcome
where the State is a moving party seeking specific relief
under Arkansas law. (citing Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, at 4, ___ S.W.3d ___, ___ ). Nonetheless, he rejected the idea that criminal prosecutions
For support, Chief Justice Hannah relied on Arkansas Department of Human Services v. State (ADHS), 312 Ark.
481, 850 S.W.2d 847 (1993), where the Department of Human Services (DHS) was held liable for restitution and
court costs arising from offenses committed by juveniles
over whom DHS had custody. In ADHS, the trial court had
made such assessments after finding DHS had waived its immunity and submitted itself to the power of the court
when it first applied for custody of the children (seemingly
prior to, or at least separate from, the criminal proceedings)
and appeared on behalf of the children in the criminal
proceedings. According to Chief Justice Hannah, the Arkansas Supreme Court reversed that assessment because
DHS had not acted voluntarily but, rather, had performed
its assigned duties by taking custody over and appearing on
In applying ADHS, Chief Justice Hannah held that the
“moving party seeking specific relief” exception merely
extends the doctrine that allows the State to waive
voluntarily its constitutionally granted immunity and that a
State official performing enumerated duties of his office
cannot create such a voluntary waiver. Since a prosecutor has a duty to bring charges against those he deems guilty
and because the Attorney General has a duty to defend the
State on appeal, the performance of those duties does not
constitute a voluntary waiver. Therefore, such performance
may never serve as the basis for an exception to sovereign immunity.
Although the intended scope of the majority opinion
might be limited to criminal prosecutions, one could
interpret the court’s reasoning as prohibiting any
assessment of costs against the State under Rule 6-7 when a state official brings the underlying trial-court action in the
course of performing his official duties.
In their dissenting opinions, Justices Baker and Hart
contended that such a broad holding goes against the long-
established precedent of Powell v. State, 233 Ark. 428, 345 S.W.2d 8 (1961), which held that appellants are entitled to
an award of appellate costs against the State when their
criminal convictions are overturned. Both judges
contended that the majority conflated the power to award
costs and the execution of that award. Moreover, they asserted that the supreme court undeniably has the power
to assess liability for costs against the State. Once the court
creates such liability, the appellant may seek payment of costs under section 16-92-105(d) of the Arkansas Code or
through the Arkansas State Claims Commission.
Judge Hart wrote that the majority opinion diminishes
the court’s constitutionally granted rule-making authority
and allows the executive to effectively “neutralize” the judiciary’s power over the orderly administration of justice.
Venue/Internet Contracts—The Arkansas Supreme Court Holds Hyperlinked Terms and Conditions Are Not Effective Communication and Cannot Create the Basis for a Valid Roller v. TV Guide Online Holdings, LLC,
The Arkansas Supreme Court recently held that online
“browsewrap” agreements based on hyperlinked terms and
conditions of website use are not valid contracts because the hyperlink alone does not effectively communicate the
terms of the agreement to the website user.
The decision arose from a class-action suit filed in the
Washington County Circuit Court against TV Guide by
users of the TV Guide website who claimed the site downloaded a data-mining “Flash cookie” onto their
computers without permission. TV Guide filed a motion to
dismiss, challenging venue and subject-matter jurisdiction.
As the basis for their motion, TV Guide claimed the terms
and conditions listed on their site require plaintiffs to bring any action regarding use of the site in Los Angeles,
California. Because the site communicated the terms and
conditions, TV Guide argued that visitors’ continued use of
the site created an enforceable browsewrap contract.
Based on this argument, the circuit court granted TV Guide’s motion and dismissed the suit.
Reversing the circuit court and reinstating the suit,
Justice Baker, writing for the Arkansas Supreme Court,
noted that TV Guide did not make available the terms and
conditions, including the choice of venue clause, on the face of its website. Rather, they were only available through a
hyperlink, which a user would have to activate before
seeing the terms of use. The court held that the mere
existence of such a hyperlink was insufficient to show that
TV guide effectively communicated the terms and conditions to site users. Because assent cannot exist
without an effective communication of the contract terms, TV Guide failed to demonstrate that an enforceable
contract existed over the choice of venue clause that was
the basis for its motion to dismiss. (citing Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991)).
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