Friedlander v. PDK Labs, Inc., 94-8299
| Decision Date | 27 July 1995 |
| Docket Number | No. 94-8299,94-8299 |
| Citation | 59 F.3d 1131 |
| Parties | Mitchell K. FRIEDLANDER, Plaintiff-Appellant, v. PDK, LABS, INC., a New York Corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Kevin L. Ward, Erik V. Huey, Schulten & Ward, Atlanta, GA, for appellant.
James J. Wolfson, Kristen K. Darnell, Alston & Bird, Atlanta, GA, Marc J. Ross, Hartley T. Bernstein, Bernstein & Wasserman, New York City, for appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before HATCHETT and EDMONDSON, Circuit Judges, and GIBSON *, Senior Circuit Judge.
TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE JUSTICES:
It appears to the United States Court of Appeals for the Eleventh Circuit that this case involves an unanswered question of Georgia law that is determinative of this appeal. Therefore, we certify the following question of law, based on the facts and procedural history recited below, to the Supreme Court of Georgia for instructions.
FACTS
Appellant, Mitchell K. Friedlander, obtained a patent on a diet control drug and is in the process of obtaining approval for his patented product from the Food and Drug Administration (FDA). Appellee, PDK Labs, Inc. (PDK), markets and sells diet control products. Friedlander alleges that PDK unfairly and deceptively markets its products. Specifically, he alleges that PDK has failed to disclose to consumers that its products are untested and lack FDA approval. Friedlander contends that purchasers have relied on these misrepresentations, and that, consequently, PDK has injured the general consuming public. Friedlander also claims that PDK's alleged misrepresentations have eroded general consumer confidence in weight control products; as a result, PDK's actions have reduced the desirability of his product and thereby injured his business.
PROCEDURAL HISTORY
On November 19, 1993, Friedlander filed a complaint in the Superior Court of Fulton County, Georgia. Friedlander alleged that PDK violated the Georgia Fair Business Practices Act (FBPA), O.C.G.A. Sec. 10-1-390 et seq., and requested: (1) a temporary restraining order and a preliminary injunction prohibiting the marketing and sale of PDK's products; (2) a permanent injunction restraining the marketing and sale of PDK's products until PDK obtains FDA approval; (3) restitution and treble damages for consumers who had purchased PDK's products; (4) damages to compensate his losses; and (5) attorneys' fees. PDK removed the case to the United States District Court for the Northern District of Georgia, and filed a motion to dismiss. Friedlander then sought to amend his complaint to allege that PDK's misrepresentations had also caused him, personally, to purchase its diet control products.
On February 26, 1994, the district court granted PDK's motion to dismiss, explaining that Friedlander was either "attempting to bring this suit in a representative capacity on behalf of the consuming public even though he himself has suffered no actual harm as a consumer" or was "seek[ing] a private remedy for competitive disadvantage." In either case, the district court held that Friedlander could not maintain a cause of action under the FBPA. Because it dismissed the lawsuit, the district court denied Friedlander's motion to amend his complaint. ** Friedlander then filed this appeal.
DISCUSSION
It is clear that a plaintiff may only bring an action under the FBPA against a defendant who engages in deceptive or unfair practices that have the potential to harm the general consuming public. See, e.g., Lynas v. Williams, 216 Ga.App. 434, 436, 454 S.E.2d 570, 573 (1995). This requirement is not a problem in this case because Friedlander alleges that PDK's deceptive acts have harmed the general consuming public.
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...266 Ga. 180, 465 S.E.2d 670 (1996), the Georgia Supreme Court in response to a question certified by this Court in Friedlander v. PDK Labs, Inc., 59 F.3d 1131 (11th Cir.1995), recently held A person who suffers injury or damages, or whose business or property has been injured or damaged, as......
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