Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/13

 ADTPA pursuant to Arkansas Code Annotated §§ 4-88-104, 4-88-105(d)(6) (Repl. 2011). Nowhere did Alpha plead or contest that the Attorney General’s Office did not have authority to act on alleged violations of the ADTPA or that it did not have a good-faith belief that violations of the ADTPA had occurred. Instead, Alpha asserts that the letter was a veiled attempt to cancel its trademarks and the proper procedure for doing so is to bring suit to cancel the trademarks. There is no requirement that the Attorney General's Office pursue a lawsuit to cancel trademarks when alleged advertising activities are also potentially deceptive in violation of the ADTPA. The Attorney General's Office could pursue a remedy under the ADTPA, which it is expressly authorized to enforce, for Alpha's allegedly deceptive conduct. Moreover, if the statutory scheme compelled the Commission to bring suit to cancel the trademarks, it would, in effect, compel the Commission to waive its sovereign immunity. Thus, Alpha has not stated facts sufficient to show that any act on the part of the Commission was ultra vires, made in bad faith, or was arbitrary or capricious.

In so far as Alpha seemingly pleaded a claim for an unconstitutional taking predicated on the Attorney General's Office sending a cease-and-desist letter, which Alpha characterizes as a "threat to take its private property," it failed to plead sufficient facts to establish the applicability of this exception. First, the pleadings demonstrate that, after sending the cease-and-desist letter, the Attorney General's Office subsequently informed Alpha that it did not intend to pursue the matter. Thus, even assuming that the letter did constitute a threat to take Alpha's property and that such a threat gave rise to an unconstitutional takings claim, neither the Commission nor the Attorney General's Office acted on the threat; in fact, the