Friedlander v. HMS-PEP Products, Inc.

• Decision Date: 19 March 1997
• Docket Number: No. A97A0407,HMS-PEP,A97A0407
• Citation: 485 S.E.2d 240,226 Ga.App. 123
• Parties: , 97 FCDR 1569 FRIEDLANDER v.PRODUCTS, INC. et al.
• Court: Georgia Court of Appeals

Page 240

485 S.E.2d 240

226 Ga.App. 123, 97 FCDR 1569

FRIEDLANDER v. HMS-PEP PRODUCTS, INC. et al.

No. A97A0407.

Court of Appeals of Georgia.

March 19, 1997.

Reconsideration dismissed April 9, 1997.

Certiorari Denied Oct. 3, 1997.

Mitchell K. Friedlander, pro se.

Arnall, Golden & Gregory, William H. Kitchens, John C. Spinrad, Atlanta, for appellees.

BLACKBURN, Judge.

Mitchell K. Friedlander appeals the trial court's grant of summary judgment in favor of HMS-PEP Products, Inc. (Pep), Gregory Thomas, and an unspecified number of John Doe defendants. Friedlander's suit alleged violations of the Uniform Deceptive Trade Practices Act, OCGA § 10-1-370 et seq., and the False Advertising Act, OCGA § 10-1-420 et seq. ¹ His primary contention is that the trial court erroneously found that he lacked standing to bring suit under either of these statutes.

Friedlander holds a patent for a weight loss drug product. With the exception of some tests which were done at the inception of the patent, Friedlander has never produced a product from this patent which could be marketed to the consuming public. Although he plans to eventually seek approval from the Food & Drug Administration (FDA) for a tablet containing his patented ingredients, he has yet to apply for any such approval. He admits that it could take years to obtain the FDA approval he needs to sell his product to consumers. Pep is the manufacturer of two weight loss products, Diet Pep and Ultra Diet Pep. Pep markets these products as dietary supplements, and sells them nationwide at health food stores, grocery stores, and drug stores. ²

1. The trial court determined that Friedlander lacked standing to maintain his claims under either the Uniform Deceptive Trade Practices or the False Advertising Acts. The court based this ruling upon its findings that Friedlander was neither selling nor marketing a weight control product, and that he and Pep were not competitors in the weight loss market. Friedlander enumerates these findings as error.

(a) Injunctive relief is the only remedy available to a party under the Uniform Deceptive Trade Practices Act, OCGA § 10-1-370 et seq. ³ To receive injunctive relief, a person must be "likely to be damaged by a deceptive trade practice of another." OCGA § 10-1-373(a). Friedlander contends he is damaged or is likely to be by the lack of consumer confidence in the marketplace regarding weight loss products in general, brought about by the large number of false weight loss products like Pep's. He also claims that Pep's actions have damaged his reputation. ⁴ The record, however, contains no evidence in support of either of these propositions.

Friedlander's contention that he is likely to be damaged in the future, when he ultimately produces a weight loss product, cannot confer standing in this case. Friedlander has no product on the market competing with Pep's he is years away from having any such product, and it is possible that he may never have such a product. With respect to current damages, Friedlander contends that the affidavit of one of his investors proves he has been damaged. This affidavit states that the investor is willing to invest further money in Friedlander's product "but for the fact that [Pep's products] continue to be sold in the marketplace without substantiation of their safety and efficacy or undergoing required premarket approval." Friedlander is not entitled to an injunction for deceptive trade practices where the damages he claims are so remote and speculative as to avoid any attempt to quantify them. Such is the case with any damages which may be inferred from this investor's affidavit. These presumed damages are not sufficiently concrete to either confer standing or justify the issuance of an injunction.

Friedlander also contends that he has standing because he is Pep's competitor--he receives royalties from another company for the sale of its weight loss products. However, the record indicates that Friedlander does not receive any such royalties, because he executed an assignment of these royalty rights to another company. ⁵ He further argues that he has standing because the Supreme Court found that he and the maker of another diet control product were competitors in Friedlander v. PDK Labs, supra, 266 Ga. 180, 465 S.E.2d 670, but PDK Labs is distinguishable. It specifically addressed Friedlander's standing under the Georgia Fair Business Practices Act, and that Act is not at issue in this case. Additionally, as we are faced with different parties and a different record than the Supreme Court reviewed in reaching its decision in PDK Labs, we are not bound to conclude that Friedlander has standing as a matter of law.

The trial court correctly concluded that Friedlander was not a person likely to be damaged by Pep's allegedly deceptive trade practices, as Friedlander has failed to show the existence of some interest he possesses capable of sustaining damages from Pep's actions. At the very minimum, Friedlander must show some causal connection between something Pep has done and his own nonspeculative damages in order to receive relief. Under the standard of Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991), where a defendant-movant on a motion for summary judgment shows the court that there is "no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case," then summary judgment is appropriate. Friedlander having failed to "point to specific evidence giving rise to a triable issue," summary judgment for lack of standing on the Deceptive Trade Practices claim was proper. Id.

(b) Friedlander also contests the trial court's finding that he lacked standing to pursue his claims under the False Advertising Act, OCGA § 10-1-420 et seq. In order for a party to receive injunctive relief under that Act, the party must be "aggrieved or about to be aggrieved" by the false advertising sought to be enjoined. OCGA § 10-1-423. In the same way that he failed to show he was...