Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/12

 it should have brought suit to cancel the trademarks under Arkansas Code Annotated section 4-71-209(3)(c),(4) (Repl. 2011) as opposed to sending the cease-and-desist letter, which it contends amounted to a threat to take Alpha's property. Interspersed with this argument is that sending the letter amounted to an arbitrary, capricious, and bad-faith act.

A state agency may be enjoined if it can be shown that the agency's pending action is ultra vires or outside the authority of the agency. ''Ark. Dep’t of Envtl. Quality'', 2009 Ark. 297, at 6, 318 S.W.3d at 573. Furthermore, a state agency may also be enjoined from acting arbitrarily, capriciously, in bad faith, or in a wantonly injurious manner. Id. at 6–7, 318 S.W.3d at 573–74. Alpha failed to plead facts to demonstrate that the Commission acted outside the scope of its authority or that it acted in an arbitrary, capricious manner or in bad faith. Alpha does not assert anywhere in its pleadings that the Commission solicited the Attorney General's Office to send the letter; nor does the letter mention the Commission. If the Attorney General's Office acted of its own volition, which the letter indicates and Alpha does not contest, it is unclear how the letter can be construed as an ultra vires, arbitrary, capricious, or bad-faith act by the Commission.

Even assuming that the letter had been sent by the Commission through the Attorney General's Office, it was predicated on Alpha’s alleged violations of the ADPTA; nowhere did the letter refer to Alpha's trademarks or the desire to cancel them. Alpha did not plead that the Commission, by and through the Attorney General's Office, did not have authority to send the cease-and-desist letter predicated on a violation of the ADTPA. As the Commission correctly argues, the Attorney General's Office is expressly authorized by statute to enforce the