This part shall be known and may be cited as the "Fair Business Practices Act of 1975."
(Ga. L. 1975, p. 376, § 1; Ga. L. 2015, p. 1088, § 2/SB 148.)
Cross references.- Violations of requirement to place security freeze on consumer credit report, § 10-1-914.
Violation of Fair Business Practice Act for selling or holding cigarettes to which tax stamp is illegally affixed, § 48-11-23.1.
Editor's notes.- Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.
Law reviews.- For article, "Consumer Disclosure in the 1990s", see 9 Ga. St. U.L. Rev. 777 (1993). For article, "Multiple Sources of Consumer Law and Enforcement" (Or: 'Still in Search of a Uniform Policy'), see 9 Ga. St. U.L. Rev. 881 (1993). For article, "Problems Arising Out of the Use of 'WWW.Trademark.Com': The Application of Principles of Trademark Law to Internet Domain Name Disputes," see 13 Ga. St. U.L. Rev. 455 (1997). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For annual survey on class actions, see 62 Mercer L. Rev. 1107 (2011). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For review of 1996 commerce and trade legislation, see 13 Ga. St. U.L. Rev. 33 (1996).
JUDICIAL DECISIONS
Applicability to natural persons.
- The 1996 amendment of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., negates any legislative intent that the act apply to business entities. It applies to natural persons. Blue Cross & Blue Shield of Ga., Inc. v. Kell, 227 Ga. App. 266, 488 S.E.2d 735 (1997).
Federal preemption.
- Consumer's claim under Georgia's Fair Business Practices Act of 1975, O.C.G.A. § 10-1-390 et seq., was preempted by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., because the consumer alleged that defendants, a business, a debt collector, and a creditor, violated Georgia's act through the use of unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade and commerce. Russell-Allgood v. Resurgent Capital Servs., L.P., 515 F. Supp. 2d 1307 (N.D. Ga. 2007).
Residential mortgage transactions not covered.
- Mortgagor's apparent claims under the Georgia Fair Business Practices Act (GFBPA), O.C.G.A. § 10-1-390 et seq., were dismissed because the mortgagor did not identify what the alleged misrepresentations were or the damages; the GFBPA did not apply to residential mortgage transactions that did not affect the consuming public generally. Zinn v. GMAC Mortg., F. Supp. 2d (N.D. Ga. Feb. 21, 2006).
Lanham Act not analogous.
- In an action by a manufacturer against a competitor under the Lanham Act (15 U.S.C. § 1125(a)) for trade dress infringement, it was error to apply the statute of limitations in the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., since the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., is the proper analogous statute to apply for such purpose. Kason Indus. v. Component Hdwe. Group, 120 F.3d 1199 (11th Cir. 1997).
Construction with Federal Arbitration Act.
- Boilerplate, mandatory arbitration clause in a cable television subscription contract was enforceable under the Federal Arbitration Act, 9 U.S.C. § 2, which preempted the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the contract's class action waiver clause was not unconscionable under Georgia law. Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277 (N.D. Ga. 2008).
Fair Business Practices Act claim covered by arbitration clause.
- Trial court erred in refusing to compel arbitration as to all counts of buyers' complaint against a seller to recover damages for construction defects in the buyers' new home because the claim the buyers asserted under the Fair Business Practices Act of 1975, O.C.G.A. § 10-1-390 et seq., was covered by the arbitration clause of the parties' agreement since the arbitration clause of the agreement was specifically included within the ambit of the Georgia Arbitration Code (GAC) by O.C.G.A. § 9-9-2(c)(8) when the parties initialed the arbitration clause as required by the GAC; because the GAC applied to the agreement's arbitration clause by reason of § 9-9-2(c)(8), the arbitration clause was not excluded from the GAC by the "consumer transactions" exception of § 9-9-2(c)(7). Order Homes, LLC v. Iverson, 300 Ga. App. 332, 685 S.E.2d 304 (2009).
Effect of failure to specify unfair and deceptive act.
- Individual's Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., counterclaim failed as the individual failed to specify the unfair and deceptive act that constituted a violation of the Act. Alexander v. A. Atlanta Autosave, Inc., 272 Ga. App. 73, 611 S.E.2d 754 (2005).
Relation back of amended complaint.
- Creditor's claim for violation of Georgia's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., was based on the construction of the creditor's home, which the creditor attempted to set out in the creditor's original complaint. While the amended complaint was substantially more thorough, it merely asserted a new legal theory arising out of the same conduct asserted in the original complaint, and thus, the FBPA claim was not time-barred because the claim related back to the original complaint. Vanbenschoten v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).
Not deceptive for association to stop water service for nonpayment.
- Nothing in Georgia's Fair Business Practices Act (GFBPA), O.C.G.A. § 10-1-390 et seq., arguably implied that it was unfair or deceptive for a homeowners association or the associations' management company, after providing notice, to stop water service for admitted nonpayment (particularly when the other homeowners have to pay higher assessments as a result of the delinquencies). Harris v. Liberty Cmty. Mgmt., 702 F.3d 1298 (11th Cir. 2012).
Showing required by plaintiff similar to fraud claim.
- Like a claim for common-law fraud, a claim under the Fair Business Practices Act of 1975, O.C.G.A. § 10-1-390 et seq., requires a showing that a defendant committed a volitional act constituting an unfair or deceptive act or practice conjoined with culpable knowledge of the nature, but not necessarily the illegality, of the act. Paulk v. Thomasville Ford Lincoln Mercury, Inc., 317 Ga. App. 780, 732 S.E.2d 297 (2012).
Judgment on the pleadings in favor of auto dealership in error.
- Trial court erred by granting an auto dealership judgment on the pleadings as to a buyer's consumer fraud suit because it could not be said, as a matter of law, that the buyer would not be unable to show that the reliance on representations that the minivan was undamaged and never had been in a wreck was reasonable. Raysoni v. Payless Auto Deals, LLC, 296 Ga. 156, 766 S.E.2d 24 (2014).
Trial court erred by granting summary judgment to an auto dealership on a buyer's claim for fraud against the dealership because the record created a question of fact as to whether the dealership issued a substantially inaccurate odometer statement even when more than one employee either knew that the written statement was false or recklessly disregarded the possibility that it was so. Alvear v. Sandy Springs Toyota, Inc., 332 Ga. App. 798, 775 S.E.2d 172 (2015).
Buyer proved violations.
- Trial court properly denied an auto sales company's motion for directed verdict as to the buyer's claims of fraud and violation of the fair business and odometer statutes because the company pointed to no evidence that the buyer was put on notice that the odometer reading was false or that the car did not have a valid emissions inspection at the time of the sale plus the buyer testified that the company responded that the odometer reflected the car's actual mileage. Gobran Auto Sales, Inc. v. Bell, 335 Ga. App. 873, 783 S.E.2d 389 (2016).
Debtors were not misled, deceived, or otherwise misled.
- Trial court properly granted summary judgment to a creditor because the debtors did not allege or show that the debtors were misled, deceived, or otherwise duped by the different dates given for the assignment of the debt and even if the failure to itemize the court costs in a letter was a false statement, the debtors failed to point to specific evidence that the omission was material in order to have an actionable Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., claim. Summer v. Sec. Credit Servs., LLC, 335 Ga. App. 197, 779 S.E.2d 124 (2015), cert. denied, 2016 Ga. LEXIS 284 (Ga. 2016).
Summary judgment.
- Because pool installers failed to respond to a pool purchaser's request for admissions, pursuant to O.C.G.A. § 9-11-36(a), those admissions were deemed admitted and were sufficient to establish the purchaser's claims of fraud and conspiracy to defraud and, accordingly, summary judgment was properly granted to the purchaser on those claims; however, summary judgment to the purchaser was error on the claim that the installers violated the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as there was no evidence that the actions by the installers were introduced into the stream of commerce or were reasonably intended to impact on any market other than on the purchaser, and the commensurate awards of attorney fees and treble damages, pursuant to O.C.G.A. § 10-1-399(c) and (d), were vacated. Brown v. Morton, 274 Ga. App. 208, 617 S.E.2d 198 (2005).
Trial court erred by failing to grant a succeeding franchisee's motion for summary judgment in a fraud suit brought by car dealership consumers as the consumers failed to establish the succeeding franchisee's participation or involvement in any of the complained of transactions; thus, no unfair business violations were established, and no direct claim against a transferee was permitted under the Bulk Transfer Act, O.C.G.A. § 11-6-101 et seq. Additionally, the consumers' claims under Georgia's Racketeer Influenced and Corrupt Organizations statute, O.C.G.A. § 16-14-1 et seq., likewise failed since the uncontroverted evidence established without question that the succeeding franchisee did not make any misrepresentations to the consumers nor participated in any of the transactions that formed the basis of the consumers' claims. Summit Auto. Group, LLC v. Clark Kia Motors Ame., Inc., 298 Ga. App. 875, 681 S.E.2d 681 (2009).
Trial court erred in granting summary judgment on the buyers' fraud and Georgia's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., claims because the evidence was in conflict regarding the timing of the disclosure of the vehicle's accident history; thus, it could not be said that reliance on any oral representations was unreasonable and therefore inadequate to sustain a fraud or FBPA claim or that the seller did not engage in a deceptive act prohibited by the FBPA. Edel v. Southtowne Motors of Newnan II, Inc., 338 Ga. App. 376, 789 S.E.2d 224 (2016).
Terms of warranty not proved.
- Summary judgment should have been granted to a store, pursuant to O.C.G.A. § 9-11-56(c), in an action by a dissatisfied customer which asserted causes of action for breach of an express warranty and a violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as the customer failed to offer evidence of the terms of the warranty, which made both claims lack any foundation; the alleged warranty was based on a store employee's notation on the customer's receipt that the kitchen cabinets which the customer purchased had a "10-year warranty," but there was no indication of any further terms, so there was no enforceable warranty proven. Home Depot U.S.A., Inc. v. Miller, 268 Ga. App. 742, 603 S.E.2d 80 (2004).
No violation as Fair Debt Collections Practices Act not violated.
- Defendant did not violate the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692, and, therefore, did not violate the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because: (1) the defendant timely responded to the plaintiff's first dispute on August 19, 2016; (2) the plaintiff signed for the response on August 24, 2016; (3) the defendant sent the plaintiff the Notice of Foreclosure Sale on August 19, 2016; (4) the defendant caused the first publication of the Notice of Sale on September 7, 2016, after the defendant responded to the plaintiff's dispute and verified the plaintiff's debt; and (5) the FDCPA required a debt collector to validate a debt only after the debt collector's initial communication with the consumer. Hughes v. J.P. Morgan Chase (In re Hughes), Bankr. (Bankr. N.D. Ga. Mar. 28, 2019).
Measure of damages.
- Award for general damages under the Fair Business Practices Act (Act), O.C.G.A. § 10-1-390 et seq., is limited to those damages that can be measured by an actual injury suffered, and the general provisions of O.C.G.A. § 51-12-2 are not applicable; furthermore, claims under the Act for equitable relief, exemplary damages, treble damages, and attorney's fees are dependent on actual injury or damage resulting from a violation of the Act. Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68 (2005).
Judgment was properly entered in favor of the plaintiff on the defendant's counterclaim under the Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., as the defendant did not establish damages resulting from a violation of the FBPA because the defendant did not refute the trial court's finding that no evidence was presented that the defendant or the defendant's property was injured or harmed as a result of the repairs made to the defendant's home by the subcontractors; the defendant did not identify any record evidence suggesting that the value of the repairs was less than $41,355.92; and the defendant did not identify evidence of any injury to the defendant or the defendant's property that might have resulted from the existence of the plaintiff's lien. Ussery v. Goodrich Restoration, Inc., 341 Ga. App. 390, 800 S.E.2d 606 (2017).
Attorney fees.
- O.C.G.A. § 10-1-835 adopts the private remedies available under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., which includes awards of reasonable attorney fees and litigation expenses under O.C.G.A. § 10-1-399(d). Galardi v. Steele-Inman, 259 Ga. App. 249, 576 S.E.2d 555 (2002).
Treble damages properly awarded.
- When punitive damages of $500,000 was awarded in a homeowner's suit against a construction company for failing to remedy a defect in the homeowner's house, in which the homeowner was awarded $100,000 as compensatory damages, and that award was reduced, pursuant to the statutory cap in O.C.G.A. § 51-12-5.1(g), to $250.000, and, under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., treble damages could be awarded for similar conduct, the award did not exceed constitutional limitations. Bowen & Bowen Constr. Co. v. Fowler, 265 Ga. App. 274, 593 S.E.2d 668 (2004).
Cited in Benchmark Carpet Mills, Inc. v. Fiber Indus., Inc., 168 Ga. App. 932, 311 S.E.2d 216 (1983); Griffith v. Stovall Tire & Marine, Inc., 169 Ga. App. 461, 313 S.E.2d 156 (1984); Credithrift of Am., Inc. v. Whitley, 190 Ga. App. 833, 380 S.E.2d 489 (1989); Great Am. Bldrs., Inc. v. Howard, 207 Ga. App. 236, 427 S.E.2d 588 (1993); Georgia ex rel. Adm'r of Fair Bus. Practices Act v. Family Vending, Inc., 171 Bankr. 907 (Bankr. N.D. Ga. 1994); Baranco, Inc. v. Bradshaw, 217 Ga. App. 169, 456 S.E.2d 592 (1995); Eason Publications, Inc. v. Nationsbank, 217 Ga. App. 726, 458 S.E.2d 899 (1995); Wingate v. Ridgeview Inst., Inc., 233 Ga. App. 649, 504 S.E.2d 714 (1998); Touchton v. Amway Corp., 247 Ga. App. 269, 543 S.E.2d 782 (2000); Campbell v. Beak, 256 Ga. App. 493, 568 S.E.2d 801 (2002); Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 663 S.E.2d 779 (2008); Tookes v. Murray, 297 Ga. App. 765, 678 S.E.2d 209 (2009); Salvador v. Bank of Am., N.A. (In re Salvador), 456 Bankr. 610 (Bankr. M.D. Ga. 2011); Penso Holdings, Inc. v. Cleveland, 324 Ga. App. 259, 749 S.E.2d 821 (2013); McConnell v. Department of Labor, 337 Ga. App. 457, 787 S.E.2d 794 (2016).
RESEARCH REFERENCESDefense of a Domain Name Dispute, 87 Am. Jur. Trials 75.
ALR.- Right to private action under state consumer protection act - Preconditions to action, 117 A.L.R.5th 155.
Enforceability of trial period plans (TPP) under the home affordable modification program (HAMP), 88 A.L.R. Fed. 2d 331.