Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/7

 declaratory-relief claim would require the Commission to file suit seeking to cancel the trademarks, thus forcing the Commission to surrender its sovereign immunity. ''Travelers Cas. & Sur. Co.'', 353 Ark. at 728–29, 120 S.W.3d at 54. Thus, the lawsuit is barred by the defense of sovereign immunity.

Additionally, a judgment for Alpha on its trademark-infringement claim, in which it seeks lost-profit damages, or on its takings claim in which it seeks an injunction until the Commission deposits adequate funds with the court to compensate for damages, would implicate the state's treasury and subject it to liability. Alpha's claim for lost-profit damages stemming from alleged acts of trademark infringement is barred by sovereign immunity because none of the exceptions apply to permit a damages claim to proceed against the sovereign state. There is an exception to sovereign immunity for unconstitutional acts, but the scope of the exception is limited to actions for injunctions. ''Ark. Tech Univ.'', 341 Ark. at 507, 17 S.W.3d at 816. The exception does not apply to suits seeking money damages. Id., 17 S.W.3d at 816. In addition, the exception for ultra vires, arbitrary, capricious or bad-faith acts extends only to injunctive relief; this court has never recognized the exception to allow a claim for damages to proceed. ''See Ark. Dep't of Envtl. Quality'', 374 Ark. at 6-7, 318 S.W.3d at 573–74. Because these exceptions do not apply to a claim seeking monetary damages, and because the Commission did not waive its sovereign immunity, this claim is barred.

Because each of Alpha's claims is barred by sovereign immunity, we must determine whether Alpha pled facts sufficient to establish that one of the recognized exceptions to sovereign immunity applies. If not, its claims are barred by the doctrine of sovereign immunity.