Friedlander v. PDK Labs, Inc., S95Q1740
| Decision Date | 22 January 1996 |
| Docket Number | No. S95Q1740,S95Q1740 |
| Citation | 266 Ga. 180,465 S.E.2d 670 |
| Parties | FRIEDLANDER v. PDK LABS, INC. |
| Court | Georgia Supreme Court |
Kevin L. Ward, Erik V. Huey, Schulten, Ward & Turner, Atlanta, Julie H. McGhee, Atlanta, for Friedlander.
Kristen K. Darnell, James J. Wolfson, Alston & Bird, Atlanta, for PDK Labs, Inc.
Friedlander developed a patented diet control drug for which he is seeking approval from the Food and Drug Administration. PDK Labs, Inc. (PDK) markets its own diet control products and is, therefore, Friedlander's competitor. In state court, Friedlander brought suit against PDK, alleging a violation of the Georgia Fair Business Practices Act (FBPA), OCGA § 10-1-390 et seq. According to the allegations of Friedlander's complaint, PDK unfairly and deceptively markets its diet control products by failing to disclose that those products are untested and lack governmental approval. The complaint further alleges that such failure to disclose injures the general consuming public and erodes general consumer confidence in weight control products. This course of conduct by PDK allegedly reduces the desirability of Friedlander's product and causes damage to his business. After the case was removed to federal court, PDK filed a motion to dismiss. The district court granted the motion and on appeal, the United States Court of Appeals for the Eleventh Circuit certified the following question: "Do non-consumers have a cause of action under the FBPA when they allege an injury due to a competitor's misrepresentations to the general consuming public?" Friedlander v. PDK Labs, Inc., 59 F.3d 1131, 1133 (11th Cir.1995).
The model act upon which the FBPA is based extends its coverage to all commercial dealings, "outlawing 'unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce....' " (Emphasis in original.) State of Ga. v. Meredith Chevrolet, Inc., 145 Ga.App. 8, 11(2), 244 S.E.2d 15 (1978), aff'd, 242 Ga. 294, 249 S.E.2d 87 (1978). At the time the FBPA was enacted, however, the Uniform Deceptive Trade Practices Act, OCGA § 10-1-370 et seq., was already in effect in this state. Unlike the expansive model act, the FBPA as enacted in Georgia (Emphasis in original.) State of Ga. v. Meredith Chevrolet, Inc., supra at 11-12(2), 244 S.E.2d 15. It is, therefore, clear that the FBPA was intended to provide relief to consumers and not to competitors. Note, The Georgia Fair Business Practices Act: Business as Usual, 9 Ga.State Univ.L.Rev. 453, 468-469 (1993). This construction is mandated so as to "make meaningful the carefully selected language" of OCGA § 10-1-393(a) State of Ga. v. Meredith Chevrolet, Inc., supra at 13(2), 244 S.E.2d 15.
A person who suffers injury or damages, or whose business or property has been injured or damaged, as a result of consumer acts or practices may bring an action under the FBPA "individually, but not in a representative capacity...." OCGA §...
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