{ "id": 8452104, "name": "MERCURY MARKETING TECHNOLOGIES OF DELAWARE, INC.; Gointernet.net, Inc.; Neal Saferstein; Arthur Cohen; and Robert Rosenkranz v. STATE of Arkansas ex rel. Mike Beebe, Attorney General", "name_abbreviation": "Mercury Marketing Technologies of Delaware, Inc. v. State ex rel. Beebe", "decision_date": "2004-07-01", "docket_number": "03-1328", "first_page": "319", "last_page": "338", "citations": [ { "type": "official", "cite": "358 Ark. 319" }, { "type": "parallel", "cite": "189 S.W.3d 414" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "45 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892070 ], "weight": 3, "year": 1885, "pin_cites": [ { "page": "189" }, { "parenthetical": "citations omitted" }, { "page": "178-180" } ], "opinion_index": 0, "case_paths": [ "/ark/45/0177-01" ] }, { "cite": "348 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74172 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "178" }, { "page": "103" }, { "page": "103-04" } ], "opinion_index": 0, "case_paths": [ "/ark/348/0167-01" ] }, { "cite": "356 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5369442 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/356/0576-01" ] }, { "cite": "196 W. Va. 346", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8577527 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "352" }, { "page": "798" } ], "opinion_index": 0, "case_paths": [ "/w-va/196/0346-01" ] }, { "cite": "471 N.E.2d 236", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1984, "pin_cites": [ { "page": "243", "parenthetical": "emphasis added" }, { "page": "243" }, { "page": "244" } ], "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 874", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524154 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "885" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0874-01" ] }, { "cite": "466 N.E.2d 792", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "392 Mass. 79", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3875911 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/mass/392/0079-01" ] }, { "cite": "355 Ark. 510", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2648963 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/355/0510-01" ] }, { "cite": "Ark. Code Ann. \u00a7 4-88-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 2001, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "340 Ark. 319", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365315 ], "weight": 9, "year": 2000, "pin_cites": [ { "page": "324" }, { "page": "519" }, { "page": "323" }, { "page": "519" }, { "page": "324" }, { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/ark/340/0319-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 4-88-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-65-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1997, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 1 }, { "cite": "331 Ark. 409", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604801 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "416" }, { "page": "31" } ], "opinion_index": 1, "case_paths": [ "/ark/331/0409-01" ] }, { "cite": "336 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51352 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/336/0289-01" ] }, { "cite": "344 Ark. 536", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210118 ], "weight": 4, "pin_cites": [ { "page": "542" }, { "page": "457-58" } ], "opinion_index": 1, "case_paths": [ "/ark/344/0536-01" ] }, { "cite": "300 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886790 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/ark/300/0594-01" ] }, { "cite": "307 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902424 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "351", "parenthetical": "citing Smith v. American Trucking Ass'n, 300 Ark. 594, 781 S.W.2d 3 (1989)" }, { "page": "443", "parenthetical": "citing Smith v. American Trucking Ass'n, 300 Ark. 594, 781 S.W.2d 3 (1989)" } ], "opinion_index": 1, "case_paths": [ "/ark/307/0345-01" ] }, { "cite": "330 Ark. 298", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298594 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "302" }, { "page": "224" } ], "opinion_index": 1, "case_paths": [ "/ark/330/0298-01" ] }, { "cite": "607 S.W.2d 670", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1756153 ], "weight": 3, "pin_cites": [ { "page": "671" } ], "opinion_index": 1, "case_paths": [ "/ark/271/0243-01" ] }, { "cite": "351 Ark. 13", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158943 ], "weight": 2, "year": 2002, "opinion_index": 1, "case_paths": [ "/ark/351/0013-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-37-407", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2003, "pin_cites": [ { "page": "(b)(1)", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "318 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455980 ], "weight": 2, "year": 1994, "opinion_index": 1, "case_paths": [ "/ark/318/0225-01" ] }, { "cite": "301 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885569 ], "weight": 2, "year": 1990, "opinion_index": 1, "case_paths": [ "/ark/301/0208-01" ] }, { "cite": "301 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885537 ], "weight": 2, "year": 1990, "opinion_index": 1, "case_paths": [ "/ark/301/0223-01" ] }, { "cite": "310 Ark. 138", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898913 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/310/0138-01" ] }, { "cite": "283 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879922 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "101" }, { "page": "738" } ], "opinion_index": 1, "case_paths": [ "/ark/283/0100-01" ] }, { "cite": "262 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675882 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/ark/262/0223-01" ] }, { "cite": "343 Ark. 662", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226493 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "668" }, { "page": "316" } ], "opinion_index": 1, "case_paths": [ "/ark/343/0662-01" ] }, { "cite": "348 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74172 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "175" }, { "page": "101" }, { "page": "176" } ], "opinion_index": 1, "case_paths": [ "/ark/348/0167-01" ] }, { "cite": "355 Ark. 510", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2648963 ], "weight": 2, "year": 2004, "opinion_index": 1, "case_paths": [ "/ark/355/0510-01" ] } ], "analysis": { "cardinality": 1523, "char_count": 43566, "ocr_confidence": 0.747, "pagerank": { "raw": 6.0900080145964e-08, "percentile": 0.38027854133580763 }, "sha256": "ef8a4d737a202bac35d7df3ba091c68d694ec005ad1db584da4d47aab7a0e0ee", "simhash": "1:1965d5bcc2c3db94", "word_count": 7196 }, "last_updated": "2023-07-14T21:06:33.181986+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, Imber, and Hannah, JJ., dissent.", "Corbin and Imber, JJ., join." ], "parties": [ "MERCURY MARKETING TECHNOLOGIES OF DELAWARE, INC.; Gointernet.net, Inc.; Neal Saferstein; Arthur Cohen; and Robert Rosenkranz v. STATE of Arkansas ex rel. Mike Beebe, Attorney General" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nAppellants, Mercury Marketing Technologies e. Delaware, Inc., GoInternet.Net, Inc., Neal Saferstein, Arthur Cohen, and Robert Rosenkranz (jointly referred to as Mercury), appeal from the circuit court\u2019s injunction restraining and enjoining it from conducting its telemarketing business in Arkansas. Mercury asserts four points on appeal. We affirm the order of the circuit court.\nOn November 12, 2002, the appellee, the State of Arkansas, which was represented by the State Attorney General, filed a complaint alleging a cause of action against Mercury under the Arkansas Deceptive Trade Practices Act (ADTPA), which is codified at Ark. Code Ann. \u00a7\u00a7 4-88-101 \u2014 4-88-503 (Repl. 2001, Supp. 2003). The complaint asserted that Mercury conducted business throughout the nation, including Arkansas, in operating telemarketing strategies that \u201costensibly offer services such as web site creation and maintenance.\u201d It then explained Mercury\u2019s method of conducting business:\n21. The Mercury defendants market their services primarily to small businesses such as churches, not-for-profit organizations, medical offices, and law firms. They obtain lists of telephone numbers of these businesses and arrange for the trained telemarketers to call these businesses.\n22. In 1998, the Mercury defendants began making telemarketing calls to Arkansas.\n23. The Mercury defendants\u2019 telemarketer speaks with the individual that answers the telephone for the business, whether it is an employee or a small business owner (the call recipient).\n24. During these calls, the Mercury defendants ostensibly offer to create web pages for businesses. Most call recipients that remember the call believed they were being offered a free sample web design and information but never agreed to be billed. Other call recipients do not recall ever being contacted.\n25. Following the telemarketer\u2019s initial discussion with the call recipient, he or she is asked to hold for verification. During the verification procedure, the call recipient is asked to verify information such as name, address and phone number.\n26. At no time during this process do the Mercury defendants clearly and conspicuously disclose to the call recipient basic and material terms, such as price, method of billing, method of cancellation, intent to bill, or even ask for the call recipient\u2019s assent to the contractual arrangement.\n27. One method by which the Mercury defendants conceal these material terms is that after the information referred to above is confirmed, the telemarketer begins speaking in such a rapid cadence that he cannot be understood. Another method used is that the telemarketer simply omits some or all of the terms from the presentation.\n28. During this monologue, the call recipient is not clearly and conspicuously informed by the telemarketer that the business target will be billed $29.95 if it does not affirmatively cancel the service within 15 days.\n29. At no time is the call recipient asked to agree to have the business target billed.\n34. The only written notice of the price of the service, the method of billing, or the .cancellation policy is printed in small print over half-way down the second page and on the back side of one page contained in the mail-out package. There, below a fine-print, grey-screened list of over 1,000 dial-up access numbers (not one of which is an Arkansas telephone number), at the very bottom of the page, in italicized gray-screened fine print is the following notice:\nPlease refer above for the dial up access numbers for setting up your internet service. If you have any questions about more dial up numbers, comments or if you decide to cancel your service please be advised to call our customer service number, 888-948-1930. After fifteen days rates are 29.95 a month conveniently on your local telephone bill. We are not associated with your local phone company.\n36. Fifteen days later, the Mercury defendants arrange for a third-party billing company to bill the business target $29.95 per month on its telephone bill. The charge is placed on the current charges, often listed as a billing from ILD services so it appears to be part of the normal service charges. That billing continues until cancelled by the business target. The result of this notice and billing method is that often the business[ ] target does not realize it is being billed. [Emphasis in original and emphasis added.]\nThe State asserted that the acts and practices of Mercury \u201cconstitute violations\u201d of the ADTPA and that absent injunctive relief, Mercury was likely to continue to injure consumers and harm Arkansas businesses. The State sought relief, including an injunction.\nOn the same day the State filed its complaint, it also filed a motion for a preliminary injunction. In that motion, the State claimed that it could meet its burden of proof for a preliminary injunction by showing that the appellants violated the ADTPA and that the act specifically authorized injunctive relief on a showing of violation of the act. The State further noted that, while not required, it could demonstrate that the \u201cfour elements traditionally considered and the factors identified in Rule 65 of the Arkansas Rules of Civil Procedure weigh in favor of granting the State\u2019s request[.]\u201d The State attached affidavits to its motion from representatives of four businesses stating that they had been fraudulently billed by Mercury (College Avenue Church of Christ in El Dorado, Hoggard Law Firm in Little Rock, Stuttgart Regional Medical Center, and a physician at Stuttgart Regional Medical Center). The State also attached an affidavit from its investigator who had investigated ADTPA violations by Mercury by conducting a survey.\nOn December 9, 2002, Mercury filed a motion to dismiss due to a statutory exception. In that motion, Mercury asserted that because it was currently subject to an order being administered by the Federal Trade Commission (FTC) concerning practices identical to those at issue in the current action, the ADTPA was not applicable under the terms of Ark. Code Ann. \u00a7 4-88-101 (Repl. 2001). Thus, according to Mercury, the matter should be dismissed. The State responded that this matter should not be addressed under our case of Villines v. Harris, 340 Ark. 319, 11 S.W.3d 516 (2000). It further contended that the ADTPA did apply because Mercury was not in compliance with any order administered by the FTC, as evidenced by a letter from the FTC stating that it was investigating Mercury for engaging in practices in violation of the FTC order. The State also asserted that many of the violations which occurred in Arkansas took place prior to the entry of the FTC order dated February 27, 2000. For these reasons, the State maintained, Mercury\u2019s motion to dismiss should be denied.\nA hearing was held on the motion on January 7, 2003, at which time the court heard testimony from Arkansas business owners who had been charged for Mercury\u2019s services on their phone bills without their knowledge. At that time, the circuit court denied Mercury\u2019s motion to dismiss and denied the State\u2019s motion for a preliminary injunction but found that there was probable cause for non-compliance with the FTC order. The court determined that there was reason to go forward with a trial on whether Mercury was in compliance with the FTC\u2019s order. At a subsequent hearing on July 14, 2003, the circuit court granted Mercury a continuance and again denied the State\u2019s oral renewal of its motion for a preliminary injunction. The circuit court then set trial for November 10, 2003.\nOn August 26, 2003, Mercury\u2019s original counsel withdrew due to a conflict of interest. Following new counsel\u2019s request for a continuance, the court noted its inclination to grant the temporary restraining order and said:\nI\u2019ll tell you what my inclination is to do is my guess is that it\u2019s not going to be ready for trial since you\u2019re coming in late. My inclination is to grant the temporary restraining order. They had, we had a hearing almost a year ago, and there was substantial evidence in that case, I thought, but I also thought since we were going to have a fairly early resolution of this, at least I thought so last fall, that I denied the Motion for Restraining Order. My inclination at this point is to, is to grant that motion. So, the reason I wanted you guys from the Attorney General\u2019s office to stay, if you would file a Motion to Reconsider, I will, then if Mr. Coulter is hired, he can respond. If, if not, somebody can respond, and I\u2019ll set that for, for some determination.\nAt a hearing held on October 1, 2003, on the State\u2019s motion for reconsideration and Mercury\u2019s motion for continuance, the circuit court decided to grant the preliminary injunction. Prior to the parties\u2019 arguments on the issue, the circuit court made the following statement:\nLet me just, let me just tell you what I think, and then I\u2019ll let you guys talk. We had a hearing last year on this too, I guess to, to injunction, and we had a full, a full day deal, it may have been two days, it seemed like it was about a week after I listened to it,... and my impression was... that truthfully,... listening to the spi[e]l that the telemarketers did ... to the Arkansas consumers, and given the nature of the Federal lawsuit and having studied the, . . . Federal Judge[\u2019s Order], it seemed to me that, it violated that [Order], My concern though, and the reason I didn\u2019t grant the injunction was that I think there is a real shaky legal precedent here. I\u2019m not so sure that this case is . . . governed by Federal law. I mean I just don\u2019t know. I think there is an issue there that has to be decided, and so, instead of granting an injunction, I tried to get this thing to some early resolution to a trial, and that way, it would get to the Supreme Court, and we [could get it decided] one way or the other. In the meantime, this thing has turned into Halloween Thirteenth, and we\u2019ve been wallowing in it for, and now we\u2019re going to wallow in it for another year, I suppose. And it concerns me that the type of marketing techniques that I saw in this preliminary hearing would be continued until we try it again. And that\u2019s... what bothers me, and I don\u2019t know if they\u2019re still doing [business here], if the SBC [ha]s cut them out of the business, and maybe that\u2019s something I shouldn\u2019t be concerned about. If I were to grant a preliminary temporary injunction, is that an appealable Order?\nFollowing the parties\u2019 arguments, the court granted the State\u2019s motion:\nWell,... I think I am going to grant injunctive relief. I just think that there\u2019s, but let me also say that we need to get this thing set for trial. I think it\u2019s in a position that I don\u2019t think they can try it in November.... Q]ust from what I\u2019ve seen before,... but... I\u2019m going to grant the temporary injunction at least until the trial date, [and] let you guys go in there with Melissa and figure out when you can try it this spring. And I\u2019ll be a year older, and we\u2019ll all be a little smarter, and get this thing going. But, I\u2019m going to grant your injunction. I think for one thing since, I don\u2019t think they\u2019re doing business here right now anyway, but I think that there\u2019s a chance for harm if they continue the way they\u2019re going, and it\u2019s hard to stop this type of conduct from hurting a lot of people if in fact that\u2019s what ... [is going on.] [I]s this going to be a trial by jury?\nOn October 21, 2003, the circuit court entered an order granting Mercury\u2019s motion for a continuance and the State\u2019s motion for a preliminary injunction based on the evidence and arguments presented. The order set the trial date for April 5, 2004, and restrained and enjoined Mercury \u201cfrom conducting any business in the state of Arkansas:\u201d\n. . . Specifically, Defendants shall not (1) initiate any telemarketing calls to Arkansas consumers; (2) bill any Arkansas consumers for any previous sales of services or products of any kind; or (3) collect any charges from any Arkansas customer for any sales of services or products.\nAn amended order was entered by the circuit court on November 6, 2003.\nI. ADTPA Exception\nMercury first argues that the ADTPA is inapplicable under \u00a7 4-88-101 of the Act, because the practices at issue are subject to and comply with an order administered by the FTC. It asserts this on grounds that the Federal Trade Commission had already investigated Mercury\u2019s identical telemarketing practices in Pennsylvania and had filed suit against one of the Mercury appellants in federal court, obtained a federal court order governing these identical practices, and was administering that order at the time the State initiated the action. It maintains that the circuit court violated the statute by accepting the State\u2019s claims and by issuing the preliminary injunction.\nThe question presented by Mercury appears to be this: does the circuit court have jurisdiction to issue a preliminary injunction pursuant to the ADTPA, and specifically under Ark. Code Ann. \u00a7 4-88-104(1) (Repl. 2001), where the party being enjoined is currently subject to an order administered by the FTC involving similar, if not the same, practices as contemplated under \u00a7 4-88-101. We turn to the language of \u00a7 4-88-101, which governs the applicability of the ADTPA:\nThis chapter does not apply to:\n(1) Advertising or practices which are subject to and which comply with any rule, order, or statute administered by the Federal Trade Commissionf.]\nArk. Code Ann. \u00a7 4-88-101(1) (Repl. 2001).\nThis court has previously observed that questions of jurisdiction are not independently appealable in an interlocutory appeal from a preliminary injunction. See Villines v. Harris, supra. In Villines, the court had a \u201cdistinct basis and specific authority to hear the appeal from an injunction[.]\u201d 340 Ark. at 324, 11 S.W.3d at 519. While the parties urged this court to examine whether the circuit court erred in finding it had subject-matter jurisdiction over the matter at issue, this court said: \u201c[w]hen an appeal reaches a court via an order granting a preliminary injunction, the appellate court will not delve into the merits of the case further than is necessary to determine whether the trial court exceeded its discretion in granting the injunction.\u201d Id. at 323, 11 S.W.3d at 519. This court concluded that where there is a distinct basis and specific authority to hear the appeal from an injunction, \u201cthe extent of our review is dependent on the decision appealed from.\u201d Id. at 324,11 S.W.3d at 519. We specifically declined to review a number of issues, unrelated to the preliminary injunction, including whether the circuit court erred in finding that it had subject-matter jurisdiction over the action, because this went beyond the scope of the interlocutory appeal dealing with that injunction.\nThe situation in Villines appears analogous to the situation here, where the statutory exception argued by Mercury concerns the circuit court\u2019s authority to enjoin Mercury under the ADTPA. In this regard, we are not persuaded by Mercury\u2019s contention that because the statutory exception is inextricably linked to this appeal, we should address it. Furthermore, we fail to see how Mercury is in compliance with an order administered by the FTC, which \u00a7 4-88-101 requires for the exception to take effect. We hold that the exception does not prevent the instant appeal.\nII. Applicable Legal Standard\nMercury argues that the State was erroneous in its contention that it need only show some credible evidence that reasonable cause existed to believe that Mercury had violated, or was likely to violate, the ADTPA in order to receive a preliminary or temporary injunction. It contends that this court has never held that the General Assembly could authorize the grant of preliminary injunctive relief in the absence of two essential requirements: likelihood of success on the merits and irreparable harm. It maintains that the court\u2019s issuance of a preliminary injunction is, at best, premised upon a \u201csuspicion that the tone and cadence of the \u2018spiel\u2019 of the telemarketers \u2014 which the trial court characterized as \u2018quick gibberish from someone in New Jersey\u2019 \u2014 might not be fully understood by some Arkansans.\u201d It asserts that nowhere in the record is there any statement by the circuit court of a finding of irreparable harm, much less any evidentiary basis for such a finding; nor is there any express finding of likelihood of success on the merits.\nInjunctive relief under the ADTPA is governed by Ark. Code Ann. \u00a7 4-88-104 (Repl. 2001), which provides:\nIn addition to the criminal penalty imposed hereunder, the Attorney General of this state shall have authority, acting through the Consumer Counsel, to file an action in the court designated in \u00a7 4-88-112 for civil enforcement of the provisions of this chapter, including, but not limited to, the seeking of restitution and the seeking of an injunction prohibiting any person from engaging in any deceptive or unlawful practice prohibited by this chapter.\nArk. Code Ann. \u00a7 4-88-104 (Repl. 2001). Mercury, however, relies on Arkansas Rule of Civil Procedure 65 and our common law for the proposition that when issuing a preliminary injunction or temporary restraining order, the trial court must find: (1) irreparable harm will result in the absence of an injunction or restraining order, and (2) the moving party has demonstrated a likelihood of success on the merits. See AJ&K Operating Co., Inc. v. Smith, 355 Ark. 510, 140 S.W.3d 475 (2004).\nAs an initial matter, we agree with the Attorney General that when he has a specific statutory mandate to protect the public interest, traditional common-law prerequisites for an injunction in civil litigation, such as irreparable harm and likelihood of success on the merits, are not applicable. See Commonwealth v. Mass. CRINC, 392 Mass. 79, 466 N.E.2d 792 (1984); People ex rel. Hartigan v. Dynasty Sys. Corp., 128 Ill. App. 3d 874, 471 N.E.2d 236 (1984).\nThe State discusses two state appellate decisions from foreign jurisdictions in support of its proposition that the Rule 65 requirements do not apply to the State\u2019s request for a preliminary injunction under \u00a7 4-88-104. The most recent decision is State ex rel. McGraw v. Imperial Marketing, 196 W. Va. 346, 472 S.E.2d 792 (1996). In that case, the West Virginia Supreme Court of Appeals examined the grant of a preliminary injunction which restricted the method and manner in which the appellee could solicit West Virginia consumers in the sale of jewelry and other products. The court observed that the method of analysis for an injunction issued under W. Va. Code \u00a7 46A-7-110 (1974) of the West Virginia Consumer Credit and Protection Act is more narrow than the typical motion for a preliminary injunction. The applicable West Virginia statute provided as follows:\nWith respect to an action brought to enjoin violations of this chapter or unconscionable agreements or fraudulent or unconscionable conduct, the attorney general may apply to the court for appropriate temporary relief against a respondent, pending final determination of the proceedings. If the court finds after a hearing held upon notice to the respondent that there is reasonable cause to believe that the respondent is engaging in or is likely to engage in conduct sought to be restrained, it may grant any temporary relief or restraining order it deems appropriate.\nW. Va. Code \u00a7 46A-7-110 (1974).\nThe West Virginia court then went on to analyze whether the issuance of the preliminary injunction was appropriate under that statute:\nThe method of analysis which governs the propriety and scope of an injunction under W. Va. Code 46A-7-110 (1974) deviates from the customary standard for the issuance of temporary relief and may best be described as whether the Attorney General has shown by the existence of some credible evidence, even if disputed, that reasonable cause exists to believe that the respondent is engaging in or is likely to engage in conduct sought to be restrained. In other words, the Attorney General need not prove the respondent has in fact violated the Act, but only needs to make a minimal evidentiary showing of good reason to believe that the essential elements of a violation of the Act are in view.\n196 W. Va. at 352, 472 S.E.2d at 798. In a footnote, the West Virginia court stated that the customary standard for the issuance of a preliminary injunction consists of requirements similar to Arkansas\u2019: reasonable likelihood of success on the merits, the presence of irreparable harm, the absence of any other appropriate remedy, and the necessity of a balancing-of-hardship test.\nThe second case cited by the State is People ex rel. Hartigan v. Dynasty Sys. Corp., supra. There, the Appellate Court of Illinois, Fourth Division, examined an interlocutory appeal from the denial of a motion to vacate a temporary restraining order and to vacate a preliminary injunction enjoining the appellees from marketing their products and services, which consisted of a multi-level sales program.\nThe Illinois statute governing the issuance of the injunction provided:\nWhenever the Attorney General has reason to believe that any. person is using, has used, or is about to use any method, act or practice declared by Sections 2 through 20 of this Act to be unlawful, and that proceedings would be in the public interest, he or she may bring an action... to restrain by preliminary or permanent injunction the use of such method, act or practice. Ill. Rev. Stat. 1983, ch. 121 1/2 , par. 267.\n128 Ill. App. 3d at 885, 471 N.E.2d at 243 (emphasis added). One of the issues before the court was whether the Illinois Attorney General, in seeking a preliminary injunction, was required to prove the traditional common-law requirements for an injunction. The Illinois court reiterated a prior holding that \u201cwhen an injunction is authorized by statute, the traditional common-law grounds for relief need not be established and that the requirements of the statute are controlling.\u201d Id., 471 N.E.2d at 243. The court then concluded that the Attorney General, in seeking an injunction pursuant to Illinois\u2019s Consumer Fraud and Deceptive Business Practices Act, need only \u201cshow a violation of the statute.\u201d Id., 471 N.E.2d at 244.\nOur statute \u00a7 4-88-104, differs from the two foreign statutes relied on by the State in that it provides that the State Attorney General may seek an injunction \u201cprohibiting any person from engaging in a deceptive or unlawful practice prohibited by this chapter.\u201d Thus, as is the case in Illinois, a violation of the Act, according to the state Attorney General, is what triggers the prayer for an injunction.\nThe question then arises as to what governs the issuance of an injunction under \u00a7 4-88-104. In West Virginia, the 1974 statute authorized the Attorney General to file suit and provided that a temporary restraining order would issue upon a finding by the court of \u201creasonable cause to believe\u201d the respondent is engaging in forbidden conduct. In Illinois, the statute provided that if the Attorney General \u201chas reason to believe\u201d that an unlawful practice contrary to the public interest is being perpetuated, he or she may seek a preliminary or permanent injunction. The Illinois statute offers no guidance on what standard the court should employ in issuing the injunction.\nIn the case before us, the Arkansas Attorney General clearly had reason to believe that a violation of the ADTPA was afoot, which he detailed in his complaint and in his motion for preliminary injunction. At the January 7, 2003 hearing, the Attorney General presented testimony from several Arkansas small-business owners who had been charged by Mercury for its services, including Dennis Haugen, owner of H & H Pawn; Dale Knoll, office manager for the Purple Cow Restaurants; Denise Hoggard, an attorney; and Joe Stewart, owner of Dixon Manor Mobile Home Park. None of the owners\u2019 employees had been authorized to accept service from Mercury, according to the owners. Some of the owners testified that they had never received any information from Mercury in the mail. And some testified that they would have no use for the services offered by Mercury in that they already had internet services, or they did not require internet service or a website. Each owner testified that only after reviewing a phone bill or upon receiving a survey from the Attorney General did he or she discover that the business was being billed for Mercury\u2019s services. During cross-examination, Mercury played for some of the owners and the circuit court the tape recordings of the telemarketing phone calls that transpired between the owners\u2019 employees and Mercury. The circuit court later described these phone calls as sounding like the Chipmunks from The Chipmunk Show, a spiel, and \u201cquick gibberish.\u201d\nWe conclude that -the circuit court clearly believed that a violation of the ADTPA was occurring. At the circuit court\u2019s July 14, 2003 hearing, the court said it had previously felt \u201cthere was a pretty strong case for an injunction[.]\u201d On August 26, 2003, the circuit court stated that his inclination was to grant the temporary restraining order because there had been a hearing on the matter a year previously and there was \u201csubstantial evidence in that case[.]\u201d\nThe circuit court found evidence of a violation, and we hold that the court\u2019s finding in this regard was not clearly erroneous. See Ark. R. Civ. P. 52(a); Thompson v. Bank of America, 356 Ark. 576, 157 S.W.3d 174 (2004). Moreover, the circuit court admitted to the parties that one reason it did not issue a preliminary injunction earlier was that it believed a full trial on the merits was imminent. When this proved not to be the case, the court isshed the preliminary injunction. This appears to us to be a reasonable explanation for the court\u2019s decision premised upon the public\u2019s interest.\nAt one point, the circuit court questioned whether Mercury was doing business in the state. The court went on to say that it was issuing the preliminary injunction because of the chance of harm to the public if Mercury is doing business in Arkansas. This seems entirely reasonable. If at trial on whether to issue a permanent injunction it is determined that Mercury has ceased doing business in Arkansas, the matter will be moot. Until then, the preliminary injunction should stand.\nAgain, we hold that the circuit court\u2019s finding that the ADTPA was violated is not clearly erroneous. See Ark. R. Civ. P. 52(a).\nIII. Judicial Comity\nFor its final point, Mercury urges that it is a violation of judicial comity for an Arkansas court to issue a preliminary injunction when a federal district court order in Pennsylvania is in effect and being administered by the FTC. Mercury cites our case of Three Sisters Petroleum, Inc. v. Langley, 348 Ark. 167, 72 S.W.3d 95 (2002), in support of its argument. The State disagrees and argues that Mercury\u2019s reliance on Three Sisters is misplaced.\nThe State is correct. This court\u2019s analysis in Three Sisters Petroleum, Inc. v Langley, supra, is inapplicable to the instant case. In that case, this court reviewed a temporary restraining order by an Arkansas circuit court enjoining the appellants from proceeding further in a similar suit in Louisiana state court. After rejecting the circuit court\u2019s bases for irreparable harm and likelihood of success on the merits, this court noted that the restraining order at issue ignored the \u201ccommon principles of comity between courts of sister states.\u201d 348 Ark. at 178, 72 S.W.3d at 103. We said:\n. . . \u201c \u2018Judicial comity\u2019 is the principle in accordance with which the courts of one state or jurisdiction give effect to the laws and judicial decisions of another, not as a matter of obligation but out of deference and respect.\u201d 16 Am.Jur. 2d Conflict of Laws \u00a7 16 (1998) (footnote omitted). The principle of comity requires that courts exercise the power to enjoin foreign suits sparingly. See 42 Am. Jur. 2d Injunctions \u00a7 195 (2000). This is particularly true where suit has already been brought in the foreign court. Generally, \u201c[a] court of one state will not enjoin the prosecution of an action in a second state when the court of the second state was the first to acquire jurisdiction of the parties and the right to adjudicate the controversy, in the absence of some peculiarly equitable ground for granting such relief.\u201d 42 Am. Jur. 2d Injunctions \u00a7 206 (2000) (footnote omitted). This general principle was recognized in Pickett v. Ferguson, 45 Ark. 177, 189 (1885), wherein this court held that restraining a party from proceeding in the courts of another state \u201cis a matter of very great delicacy, almost inevitably leading to the distressing conflicts of jurisdiction.\u201d This court concluded that such restraint should only be imposed \u201cwhere the foreign suit appears to be ill calculated to answer the ends of justice,\u201d such as where the court lacks jurisdiction over all of the parties or the subject matter of the case. Id. (citations omitted).\nHere, unlike the facts in Pickett, the Louisiana state court has jurisdiction over all of the parties. In fact, the issue of jurisdiction has been repeatedly litigated, with the Louisiana state court and both the Arkansas and Louisiana federal courts ruling that jurisdiction belonged in Louisiana state court, due to the fact that Louisiana residents were on both sides of the suit. Although Appellees have' appealed the most recent jurisdiction ruling by the Louisiana state court, it is not apparent that they will succeed on that issue. Moreover, the holding in Cook clearly demonstrates this court\u2019s historic reluctance to support an injunction restraining a resident of a sister state from proceeding with a suit already instituted in that state. In short, the circuit court\u2019s authority to issue injunctions of foreign suits should only be exercised in the rarest of circumstances. This is not such a rare circumstance.\nId. at 178-180, 72 S.W.3d at 103-04.\nIn the case at hand, the parties are not the same in both the Pennsylvania federal district court case and the Arkansas case. Namely, the State was not a party in the federal case, and the FTC is not a party here. Moreover, while the actions of Mercury might be the same in each case, those actions could certainly violate both state and federal statutes. In addition, the State in the instant case does not seek to enjoin the FTC\u2019s prosecution or the federal action being taken in Pennsylvania. The circumstances resulting injudicial comity which were at issue in Three Sisters are not analogous to the situation at issue here. We conclude that Arkansas has the right to seek restitution on behalf of its citizens. There was no violation of judicial comity.\nAffirmed.\nCorbin, Imber, and Hannah, JJ., dissent.\nBy order dated September 25, 2003, defendants Cohen and Rosenkranz were dismissed from the lawsuit.\nThe court, at the beginning of the hearing, noted that a jury trial in the matter was set in two weeks.\nWe question whether Mercury has argued on appeal that there was not sufficient evidence that the ADTPA had been violated. Rather, its arguments are couched in terms of no substantial evidence of irreparable harm or likelihood of success on the merits.", "type": "majority", "author": "Robert L. Brown, Justice." }, { "text": "Jim Hannah, Justice,\ndissenting. I respectfully dissent. I distice, majority\u2019s conclusion that the Rule 65 requirements do not apply to the State\u2019s request for a preliminary injunction under \u00a7 4-88-104. I believe this case should be reversed and remanded to the circuit court for application of Rule 65 to the State\u2019s request for preliminary injunction.\nIn determining whether to issue a preliminary injunction or temporary restraining order pursuant to Rule 65, the circuit court must consider two things: (1) whether irreparable harm will result in the absence of an injunction or a restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. Three Sisters Petroleum, Inc. v. Langley, 348 Ark. 167, 72 S.W.3d 95 (2002). Recently, in AJ& K Operating Co. v. Smith, 355 Ark. 510, 140 S.W.3d 475 (2004), this court took the opportunity to clarify that the standard of review for a temporary restraining order or preliminary injunction is whether the circuit court abused its discretion. We stated: \u201cThe standard of review is the same for the two essential components of a TRO or preliminary injunction: irreparable harm, and likelihood of success on the merits. See David \u00d1ewbern & John J. Watkins, Civil Procedure \u00a7 29-2, at 437 (3d ed. 2002).\u201d\nThe majority holds that in cases where the Attorney General \u201chas a specific statutory mandate to protect public interest, traditional common-law prerequisites for an injunction in civil litigation, such as irreparable harm and likelihood of success on the merits, are not applicable.\u201d I disagree. Our rules of civil procedure govern the procedure in the circuit courts in all suits or actions of a civil nature with the exceptions stated in Rule 81. See Ark. R. Civ. P. 1. Rule 81 provides, in relevant part:\n(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit courts of this state except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.\n(c) Procedure Not Specifically Prescribed. When no procedure is specifically prescribed by these rules, the court shall proceed in any lawful manner not inconsistent with the Constitution of this State, these rules or any applicable statute.\nArk. R. Civ. P. 81(a), (c) (emphasis added).\nIn the present case, \u00a7 4-88-104 (Repl. 2001) provides a remedy for civil enforcement of the ADTPA; however, \u00a7 4-88-104 does not specifically provide a different procedure for seeking injunctive relief. As such, the exception in Rule 81(a) does not apply. Further, the Rule 81(c) exception does not provide a basis for deviating from our rules of civil procedure. Where, as here, a procedure is not specifically prescribed by these rules, the court shall proceed in any lawful manner not inconsistent with the Arkansas Constitution, our rules of civil procedure, or any applicable statute. By creating a new procedure for seeking injunctive relief, the majority authorizes a proceeding which is inconsistent with a rule of civil procedure. Specifically, this judicially-created procedure is inconsistent with Rule 65, which requires the circuit court to consider: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. This new procedure is also inconsistent with this court\u2019s well-settled rule that the standard of review for a temporary restraining order or preliminary injunction is whether the circuit court abused its discretion.\nMoreover, it is unclear exactly what this new procedure entails. The majority states that \u201c[t]he circuit court has already found substantial evidence to support a violation of the FTC order which would constitute a violation of the ADTPA.\u201d Shortly thereafter, the majority states that \u201c[t]he circuit court found evidence of a violation, and we hold that the court\u2019s finding in this regard is not clearly erroneous.\u201d How much evidence warrants the issuance of an injunction?\nHad the General Assembly intended to institute a new procedure for seeking injunctive relief under \u00a7 4-88-104, or to deviate from the rules of civil procedure, it could have done so. In State v. Lester, 343 Ark. 662, 38 S.W.3d 313 (2001), this court stated:\nThe Arkansas Constitution confers upon the courts the inherent authority to promulgate rules of procedure. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). However, Article 7, sections 1 and 4, \u201cdo not expressly or by implication confer on this Court exclusive authority to set rules of court Procedure.\u201d Jackson v. Ozment, 283 Ark. 100, 101, 671 S.W.2d 736, 738 (1984) overruled on other grounds by Weidrick u Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). The court shares this authority with the General Assembly. St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Thus, it is not a violation of separation-of-powers. principles for the legislature to enact statutes pertaining to rules of procedure, Si. Clair v. State, supra, although such statutes may be superseded by the rules promulgated by the judiciary. See Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994); Weidrick v. Arnold, supra.\nLester, 343 Ark. at 668, 38 S.W.3d at 316.\nClearly, the General Assembly is aware of its authority to enact statutes pertaining to rules of procedure. For example, the General Assembly enacted \u00a7 5-37-407, which covers forgery and fraudulent practices in cable television. This statute makes clear that the General Assembly, in providing for injunctive relief, intended to deviate from the rules of civil procedure. In a civil action under that subchapter, \u201c[t]he court may [a]ward declaratory relief and other equitable remedies, including preliminary and final injunctions to prevent or restrain violations of this subchapter, without requiring proof that the plaintiff has suffered or will suffer actual damages or irreparable harm or lacks an adequate remedy at law.\u201d Ark. Code Ann. \u00a7 5-37-407(b)(1) (Supp. 2003) (emphasis added).\nNo procedure for seeking injunctive relief is provided in \u00a7 4-88-104. Without evidence of a drafting omission, this court will not read into legislation what is not there. Cave City Nursing Home, Inc. v. Arkansas Dep\u2019t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). In this case, there is no evidence of a drafting omission, nor is there any evidence that the General Assembly intended to provide different rules of procedure. Again, I believe Rule 65 applies.\nFurther, I believe that the circuit court abused its discretion in granting the State\u2019s motion for preliminary injunction. In Three Sisters, supra, we stated:\nRegarding the first necessary showing, this court has held: \u201cEssential to the issuance of a temporary restraining order is a finding that a failure to issue it will result in irreparable harm to the applicant.\u201d Kreutzer, 271 Ark. at 244, 607 S.W.2d 670, 671 (citing Ark. R. Civ. P. 65). \u201cThe prospect of irreparable harm or lack of an otherwise adequate remedy is the foundation of the power to issue injunctive relief.\u201d Wilson v. Pulaski Ass\u2019n of Classroom Teachers, 330 Ark. 298, 302, 954 S.W.2d 221, 224 (1997).\nRegarding the second thing that must be shown, this court has held: \u201cOf course, in order to justify a grant of preliminary injunction relief, a plaintiff must establish that it will likely prevail on the merits at trial.\u201d W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345, 351, 820 S.W.2d 440, 443 (1991) (citing Smith v. American Trucking Ass\u2019n, 300 Ark. 594, 781 S.W.2d 3 (1989)).The test for determining the likelihood of success is whether there is a reasonable probability of success in the litigation. Customs Microsystems, 344 Ark. 536, 42 S.W.3d 453. Such a showing \u201cis a benchmark for issuing a preliminary injunction.\u201d Id. at 542, 42 S.W.3d at 457-58.\nThree Sisters, 348 Ark. at 175, 72 S.W.3d at 101.\nIn this case, the order of preliminary injunction itself contains no finding of irreparable harm. At the hearing on the State\u2019s motion for reconsideration, the circuit court stated that it believed there was a \u201cchance for harm if they continue the way they\u2019re going, and it\u2019s hard to stop this type of conduct from hurting a lot of people ifIn fact that\u2019s what... [is going on].\u201d (Emphasis added.)\nGenerally, harm is only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. See Three Sisters, 348 Ark. at 176, 72 S.W.3d at 101 (citing Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980)). Mercury argues that since the State seeks \u201ccredit\u201d or \u201crestitution\u201d to consumers for amounts it contended Mercury had improperly billed to its customers, it is clear that the \u201charm\u201d is not irreparable because it can be adequately compensated by money damages. The State contends that an injunction authorized by the ADTPA results in a different analysis of the irreparable harm prong ofithe preliminary-injunction analysis. I believe the State is correct. The ADTPA protects consumers and the business community from unconscionable, false, and deceptive trade practices. See State v. R&A Inv. Co., 336 Ark. 289, 985 S.W.2d 299 (1999). The enactment of the ADTPA is a determination by the General Assembly that violations of the Act will cause irreparable harm.\nEven assuming that the circuit court\u2019s statement concerning a \u201cchance of harm\u201d is considered a finding ofirreparable harm, the record is devoid of a finding of a likelihood of success on the merits. As stated previously, in determining whether to issue a preliminary injunction pursuant to Rule 65, the circuit court must consider: (1) whether irreparable harm will result in the absence of the injunction, and (2) whether the moving party has demonstrated a likelihood of success on the merits. The appropriate standard was not applied in this case.\nFor the foregoing reasons, I believe that this case should be reversed and remanded for the circuit court to apply the appropriate standard.\nCorbin and Imber, JJ., join.\nSee Weiss v. Johnson, 331 Ark. 409, 961 S.W.2d 28 (1998). In that case, the appellee\u2019s driver\u2019s license was suspended by the Office of Driver Services of the Revenue Division of the Department of Finance and Administration pending the adjudication of her DWI charge. Pursuant to Ark. Code Ann. \u00a7 5-65-104 (Repl. 1997), the appellee filed a\u201cde novo petition for review\u201d of the agency determination in circuit court. DF &A failed to appear at the hearing, and the trial court entered a judgment in favor of the appellee. DF & A moved to set aside the judgment, arguing that it was not served with the appellee\u2019s petition in compliance with Ark. R. Civ. P. 4. The trial court denied the motion, finding that the hearing was a \u201cspecial hearing\u201d and that the rule was not applicable. DF& A appealed, arguing that the trial court abused its discretion in denying its motion to set aside because service of the petition for review failed to comply with Ark. R. Civ. P. 4. We reversed and dismissed, stating: \u201cGiven the silence of Ark. Code Ann. \u00a7 5-65-104(c) on the subject of notice or service of process, and therefore the lack of a'different procedure\u2019 which conflicts with the Rules, we are left with no choice but to conclude that the Rules govern because Rule 81(a) does not apply.\u201d Johnson, 331 Ark. at 416,961 S.W.2d at 31.\nArticle 7, sections 1 and 4 were repealed by Amendment 80, \u00a7 3, which provides: \u201cThe Supreme Court shall prescribe these rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.\u201d", "type": "dissent", "author": "Jim Hannah, Justice," } ], "attorneys": [ "Wilson, Engstrom, Corum and Coulter, by: Gary D. Corum and Nate Coulter, for appellant.", "Mike Beebe, Att\u2019y Gen., by: J. Camille Williams, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "MERCURY MARKETING TECHNOLOGIES OF DELAWARE, INC.; Gointernet.net, Inc.; Neal Saferstein; Arthur Cohen; and Robert Rosenkranz v. STATE of Arkansas ex rel. Mike Beebe, Attorney General\n03-1328\n189 S.W.3d 414\nSupreme Court of Arkansas\nOpinion delivered July 1,2004\nWilson, Engstrom, Corum and Coulter, by: Gary D. Corum and Nate Coulter, for appellant.\nMike Beebe, Att\u2019y Gen., by: J. Camille Williams, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0319-01", "first_page_order": 345, "last_page_order": 364 }