"The provisions of this agreement have been fully explained to me and I understand that the services to be provided under this agreement by the seller do not include actual job placement."
The statement shall be signed by both the consumer and the authorized representative of the seller;
(A.1) Persons who are offered an opportunity to participate in a promotion must be given a notice as required by this paragraph. The written notice must be given to the participant either prior to the person's traveling to the place of business or, if no travel by the participant is necessary, prior to any seminar, sales presentation, or other presentation, by whatever name denominated. Written notices may be delivered by hand, by mail, by newspaper, by periodical, or by electronic mail or any other form of electronic, digital, or Internet based communication. Any offer to participate made through any other medium must be preceded by or followed by the required notice at the required time. It is the intent of this paragraph that full, clear, and meaningful disclosure shall be made to the participant in a manner such that the participant can fully study and understand the disclosure prior to deciding whether to travel to the place of participation or whether to allow a presentation to be made in the participant's home; and that this paragraph be liberally construed to effect this purpose. The notice requirements of this paragraph shall be applicable to any promotion offer made by any person in the State of Georgia or any promotion offer made to any person in the State of Georgia;
(N.1) All prizes offered and awarded shall be noncash prizes only and shall not be redeemable for cash;
The buyer or buyers may cancel this transaction at any time prior to 5:00 P.M. of the seventh day following receipt of this notice.
This cancellation right cannot be waived in any manner by the buyer or buyers.
Any money paid by the buyer or buyers must be returned by the seller within 30 days of cancellation.
"The provisions of this agreement have been fully explained to me. I understand that under this agreement I am selling my house to the other undersigned party."
This statement shall be signed by the debtor and the buyer;
The provisions of this paragraph shall not apply where the party making the representations is in compliance with paragraph (16) of this subsection;
Nothing in this subparagraph prohibits advertising by a personal care home or assisted living community for services authorized by the Department of Community Health under a waiver or variance pursuant to subsection (b) of Code Section 31-2-7.
For purposes of this paragraph, "personal care" means protective care and watchful oversight of a resident who needs a watchful environment but who does not have an illness, injury, or disability which requires chronic or convalescent care including medical and nursing services, and "assisted living care" includes services provided for in Code Section 31-7-12.2. The provisions of this paragraph shall be enforced following consultation with the Department of Community Health which shall retain primary responsibility for issues relating to licensure of any individual or facility providing personal care services;
(29.1) With respect to any credit card issuer:
(30.1) Failing to comply with the following provisions in connection with a contract for health care services between a physician and an insurer which offers a health benefit plan under which such physician provides health care services to enrollees:
For purposes of this paragraph, the term "home health agency" shall have the same definition as contained in Code Section 31-7-150, as now or hereafter amended. The provisions of this paragraph shall be enforced by the Attorney General;
A gift certificate, store gift card, or general use gift card shall be valid in accordance with its terms in exchange for merchandise or services.
- Criminal penalties for unauthorized reproduction and sale of recorded materials, § 16-8-60.
Criminal penalty for deceptive business practices, § 16-9-50.
Fraud generally, § 23-2-50 et seq.
Misbranding of food generally, § 26-2-28.
Labeling of meat, §§ 26-2-107,26-2-111,26-2-112.
Misbranding of drugs, § 26-3-8.
Misbranding and false advertisement of cosmetics, § 26-3-12 et seq.
Time-share program sales, deceptive practices, § 44-3-185 et seq.
Code Commission notes.- Owing to the duplication in paragraph designations, paragraphs (16), (17), and (18) added to subsection (b) by Ga. L. 1986, p. 405, § 2, were redesignated paragraphs (17), (18), and (19), respectively, in 1986, pursuant to Code Section 28-9-5. In accordance with this revision, in subsection (b), punctuation was revised, "or" was deleted at the end of paragraph (15), and the references in paragraphs (18) and (19) were adjusted accordingly.
Three 1988 Acts amended this Code section, two of which added a paragraph (21) to subsection (b). Pursuant to Code Section 28-9-5, in 1988, the paragraph enacted by Ga. L. 1988, p. 399 has retained the (b)(21) designation but paragraph (21) enacted by Ga. L. 1988, p. 1657 and paragraph (22) also enacted by Ga. L. 1988, p. 1657 have been redesignated as paragraphs (22) and (23) of subsection (b), respectively.
Pursuant to Code Section 28-9-5, in 1988, semi-colons were substituted for periods at the end of paragraphs (b)(20) and (b)(21).
Pursuant to Code Section 28-9-5, in 1989, "spas;" was substituted for "spas." in paragraph (b)(12) and "going-out-of-business" was substituted for "going out of business" in subparagraphs (b)(24)(A) and (b)(24)(B).
Pursuant to Code Section 28-9-5, in 2004, "Code section; and" was substituted for "Act." in subparagraph (b)(29.1)(A).
Pursuant to Code Section 28-9-5, in 2009, a semicolon was substituted for a period at the end of subparagraph (b)(30.1)(E), "or" was deleted at the end of paragraph (b)(32), and "; and" was substituted for a period at the end of paragraph (b)(33).
Editor's notes.- Ga. L. 1985, p. 938 contained a § 2 which amended this Code section and a second § 2, not codified by the General Assembly, which contained a standard repeal provision.
Ga. L. 1989, p. 14, § 10 which amended paragraph (b)(12) was superseded by Ga. L. 1989, p. 1606, § 1.
Ga. L. 1990, p. 1653, § 3, not codified by the General Assembly, provides that the Act shall not be construed to repeal or modify any provisions of law relative to the utterance or delivery of a worthless check and the provisions of the Act shall be cumulative of such other provisions.
Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the 2000 amendment by that Act is applicable with respect to notices delivered on or after July 1, 2000.
Ga. L. 2001, p. 1170, § 1, not codified by the General Assembly, provides: "The General Assembly finds that managed health care has benefited consumers by negotiating contracts with physicians which prohibit such physicians from billing consumers for fees above and beyond the amount paid by the managed care plan. In order to ensure that the consumers of this state continue to receive such benefits, it is imperative that physicians adhere to their contractual obligations to charge only those fees contractually agreed to and not attempt to pass additional or hidden costs along to consumers. The purpose of Section 2 of this Act is to ensure that consumers are not charged fees above and beyond those already contracted for between their physician and their health benefit plans."
Ga. L. 2004, p. 149, § 1, which amended this Code section, did not specify which subsection was amended but actually amended subsection (b).
Ga. L. 2005, p. 1183, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Gift Card Integrity Act of 2005.'"
Ga. L. 2005, p. 1183, § 3, not codified by the General Assembly, provides that the second 2005 amendment applies to any gift certificates, store gift cards, or general use gift cards sold on or after October 1, 2005.
Ga. L. 2012, p. 1136, § 4/SB 431, not codified by the General Assembly, provides in part that this Code section shall apply to conduct that occurs on and after May 2, 2012. It is not the intention of this Act to abate any prosecution undertaken for conduct occurring under the law in effect prior to such date, and any offense committed before May 2, 2012, shall be prosecuted and punished under the statutes in effect at the time the offense was committed.
Law reviews.- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 29 (1997). For review of 1998 legislation relating to commerce and trade, see 15 Ga. St. U.L. Rev. 9 (1998). For article, "The Federalization and Privatization of Public Consumer Protection Law in the United States: Their Effect on Litigation and Enforcement," see 24 Ga. St. U.L. Rev. 663 (2008). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 150 (1989). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 265 (1992). For note on the 2001 amendment to this Code section, see 18 Ga. St. U.L. Rev. 241 (2001). For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993). For comment, "Unwrapping Escheat: Unclaimed Property Laws and Gift Cards," see 60 Emory L. J. 971 (2011).
JUDICIAL DECISIONSANALYSIS
General Consideration
Purpose.
- Objective of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is elimination of deceptive acts and practices in "consumer marketplace". For there to be a "consumer marketplace," the underlying transaction must involve a businessperson as well as a consumer. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).
Test as to whether activities covered.
- In analyzing whether defendant's allegedly wrongful activities are in violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to protect the public or an "isolated" incident not covered under this Act, two factors are determinative: (a) medium through which act or practice is introduced into stream of commerce; and (b) market on which act or practice is reasonably intended to impact. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).
Transaction must be part of ongoing, public business.
- This section requires that alleged wrongful act in "consumer transaction" occur in context of ongoing business in which defendant holds oneself out to the public. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).
No impact on general consuming public and beyond reach of FBPA.
- Although the department store deviated from the store's credit fraud policy by not promptly investigating the plaintiff's claim after the plaintiff sent the information requesting the store to correct the plaintiff's account, there was no evidence of other instances in which the store failed to follow the store's policy, and any deviation this time was viewed as a isolated event that had no impact on the general consuming public and is therefore beyond the reach of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Davis v. Rich's Dep't Stores, Inc., 248 Ga. App. 116, 545 S.E.2d 661 (2001).
Activity must be in context of consumer marketplace.
- To be subject to direct suit under the Fair Business Practices Act, an alleged offender must perform some volitional act to avail the offender of the channels of consumer commerce and the allegedly offensive activity must take place within the context of the consumer marketplace. State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8, 244 S.E.2d 15, aff'd sub nom. State v. Meredith Chevrolet, Inc., 242 Ga. 294, 249 S.E.2d 87 (1978); Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).
Any act or practice which is outside the context of the public consumer marketplace, no matter how unfair or deceptive, is not directly regulated by O.C.G.A. Pt. 2, Art. 15, Ch. 1, T. 10. O'Brien v. Union Oil Co., 699 F. Supp. 1562 (N.D. Ga. 1988).
Since a bank's commercial checking accounts were not offered to consumers, the bank's practices concerning those accounts were outside the consumer market place and the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., did not apply to an action against the bank based on misrepresentation of the "standard, quality, or grade" of the bank's services. Eason Publications, Inc. v. Nationsbank, 217 Ga. App. 726, 458 S.E.2d 899 (1995).
Claim against a private school after a student was dismissed from the school due to misbehavior was properly denied since the school's alleged acts and conduct did not arise in the context of the consumer marketplace. Pryor v. CCEC, Inc., 257 Ga. App. 450, 571 S.E.2d 454 (2002).
Bankruptcy trustee failed to show that a loan servicer engaged in unfair and deceptive practices since the loan was secured by real property which the debtor held as an investment property and, thus, the serviced debt did not arise from a consumer transaction. Gordon v. Bank of Am., N.A. (In re Merriweather), Bankr. (Bankr. N.D. Ga. Aug. 28, 2015).
Consumer sufficiently alleged that a lender's deceptive practice of collecting on debt which was paid reasonably had potential to harm the general consuming public. Goodwyn v. Capital One, N.A., 127 F. Supp. 3d 1367 (M.D. Ga. 2015).
Plaintiff's allegation that the defendant violated the Georgia Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., by engaging in a pattern of unfair and deceptive acts and practices both in the conduct of consumer transactions and in trade and commerce did not state a claim under the FBPA because the plaintiff did not allege any deceptive acts or practices in the conduct of consumer transactions such as passing off goods or services as those of another or causing confusion as to the source of goods or services. Vanbenschoten v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).
No complaint when goods and services not provided at all.
- Trial court did not err in ruling that the complaint failed to state a claim under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-393, because the plaintiff alleged that the goods and services were not provided at all - not that the defendant advertised the defendant's donation of a safari without any intention of performing. Wright v. Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd., 330 Ga. App. 508, 767 S.E.2d 513 (2014).
Nonconsumers do not have a cause of action under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., when nonconsumers allege an injury due to a competitor's misrepresentations to the general public. Friedlander v. PDK Labs, Inc., 266 Ga. 180, 465 S.E.2d 670 (1996).
Action under § 40-1-5. - Court properly granted the plaintiff's motion for partial summary judgment on plaintiff's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., claim because the undisputed facts established a violation of O.C.G.A. § 40-1-5 and, thus, a per se violation of the FBPA. Neal Pope, Inc. v. Garlington, 245 Ga. App. 49, 537 S.E.2d 179 (2000).
Part applied to banks.
- After the plaintiff bank customers alleged the defendant bank had a practice of manipulating the posting of transactions to impose overdraft fees, such claims under O.C.G.A. §§ 10-1-391,10-1-393, and10-1-399, were not preempted under the National Bank Act regulations and if the allegations that the bank shrouded the bank's actions in a broadly worded "largest-to-smallest" transaction posting policy, unqualified by time limits or other restrictions, the plaintiffs stated claims under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. White v. Wachovia Bank, N.A., 563 F. Supp. 2d 1358 (N.D. Ga. 2008).
Borrower failed on summary judgment to state a claim against two banks under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the borrower presented no evidence that the application of funds to an escrow account was improper, that any unfair business practice existed, or that any damages were suffered under O.C.G.A. § 10-1-393 of the Act. Cornelius v. Home Comings Fin. Network, Inc., F.3d (11th Cir. Sept. 16, 2008)(Unpublished).
Application to sperm bank.
- Parents' Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., claim against a sperm bank was erroneously dismissed; the parents' claims that the sperm bank made misrepresentations about the quality of their product (sperm) and services (screening process) to the public could have resulted in injuries other than the life of the child (for which no damages were recoverable). At a minimum, the parents may have paid more for the sperm than the sperm was worth, and injunctive relief and punitive damages were potentially available. Norman v. Xytex Corp., Ga. , S.E.2d (Sept. 28, 2020).
Private transactions not covered.
- Even though a single instance of an unfair or deceptive act can be a sufficient basis for a claim under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., the Act does not apply to suits based upon deceptive practices which occur in transactions that are essentially private. Borden v. Pope Jeep-Eagle, Inc., 200 Ga. App. 176, 407 S.E.2d 128 (1991).
Trial court properly concluded that the defendants were entitled to summary judgment on the plaintiff's claim for a violation of the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., since the sale of the farm to the plaintiffs, and any representations preceding the sale, involved a private transaction which would not affect the consuming public generally. Condon v. Kunse, 208 Ga. App. 856, 432 S.E.2d 266 (1993).
Fraudulent failure to furnish an ample supply of yarn was a matter strictly between private business parties, who are nonconsumers, and therefore does not give rise to the application of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Benchmark Carpet Mills, Inc. v. Fiber Indus., Inc., 168 Ga. App. 932, 311 S.E.2d 216 (1983); Medley v. Boomershine Pontiac-GMC Truck, Inc., 214 Ga. App. 795, 449 S.E.2d 128 (1994).
Touchstone for a legally sufficient Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services aside from medical competence is implicated, or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel, so medical malpractice claims recast as FBPA claims cannot form the basis for an FBPA violation. Henderson v. Gandy, 280 Ga. 95, 623 S.E.2d 465 (2005).
When a widow sued a physician for allowing nurses to manage the care of the deceased husband's pressure sore, and for allegedly falsifying medical records to reflect that the care was done pursuant to the physician's orders, when the care was not, this did not state a claim involving the entrepreneurial, commercial, or business aspects of the physician's practice, and did not state a claim within the contemplation of the Fair Business Practices Act of 1975, O.C.G.A. § 10-1-390 et seq. Henderson v. Gandy, 280 Ga. 95, 623 S.E.2d 465 (2005).
Application to medical profession.
- It was the Georgia legislature's stated intent that the Fair Business Practice Act, O.C.G.A. § 10-1-390 et seq., be interpreted and construed consistently with interpretations given by the Federal Trade Commission in federal court pursuant to 15 U.S.C. § 45(a)(1) of the Federal Trade Commission Act, 15 U.S.C. § 41 et seq., pursuant to O.C.G.A. § 10-1-391(b), and federal courts had determined that the Federal Trade Commission Act, 15 U.S.C. § 41 et seq., applied to the commercial aspects of the medical profession. Henderson v. Gandy, 280 Ga. 95, 623 S.E.2d 465 (2005).
Application to dentists.
- Patient's suit against a dentist, alleging the dentist failed to disclose treatment alternatives and associated risks prior to commencing dental work, did not establish a violation of Georgia's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., as there was no evidence showing that this omission resulted in the patient's damages as required by the FBPA. Tookes v. Murray, 297 Ga. App. 765, 678 S.E.2d 209 (2009).
Genuine issues of fact existed as to terms of contract.
- College trust did not establish entitlement to summary judgment on the borrower's counterclaim under Georgia's Fair Business Practice Act, O.C.G.A. § 10-1-390 et seq., since a genuine issue of material fact existed as to the terms of the contract. Zahler v. Nat'l Collegiate Student Loan Trust 2006-1, 355 Ga. App. 458, 844 S.E.2d 530 (2020).
Contract provision that it is "absolutely noncancellable".
- If the contract on the contract's face fails to state clearly "the cancellation and refund policies of seller" and states that the contract "is absolutely noncancellable," the contract is violative of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., in attempting to limit operation of the statute. Little v. Paco Collection Servs., Inc., 156 Ga. App. 175, 274 S.E.2d 147 (1980).
Failure of consumer to exercise requisite diligence.
- There was no violation of subsection (c) of O.C.G.A. § 10-1-393 in precluding the introduction of testimony as to an alleged oral misrepresentation because the proffered evidence was inadmissible to vary the terms of the written contract, when the nonviability of the purchaser's claim was not the result of defendant's contractual limitation of the applicability of O.C.G.A. Pt. 2, Art. 15, Ch. 1, T. 10 but was the result of the purchaser's own failure to exercise the requisite diligence to read the contract that the purchaser signed. Heidt v. Potamkin Chrysler-Plymouth, Inc., 181 Ga. App. 903, 354 S.E.2d 440 (1987).
Physician's statements about nurse-midwife.
- Physician's allegedly disparaging statements about a nurse-midwife, which were made during a conversation between the two at a hospital nurses' station, took place outside the context of consumer commerce and therefore did not fall within the regulatory authority of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Sweeney v. Athens Regional Medical Ctr., 709 F. Supp. 1563 (M.D. Ga. 1989).
Parole evidence could not contradict written agreement in patient's claim.
- Patient's claim that a dentist violated Georgia's Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., was based on an allegation that a member of the dentist's staff told the patient that a loan for dental work would be at a lower interest rate than that stated in the financing authorization. The claim failed as such parol evidence was inadmissible to contradict the clear written provisions of the authorization, which the patient signed, and the promissory note referenced therein. Tookes v. Murray, 297 Ga. App. 765, 678 S.E.2d 209 (2009).
Consumer's remedies in satellite transaction.
- Motion to compel arbitration of a putative class action was improperly denied under 9 U.S.C. §§ 2 and 16 because it was not unconscionable to require arbitration of the validity of an early cancellation fee charged by a satellite television provider in that the subscriber had the ability to recoup fees and expenses under the Georgia Fair Business Practices Act under O.C.G.A. §§ 10-1-393 and10-1-399 if the subscriber prevailed individually. Cappuccitti v. DirecTV, Inc., 623 F.3d 1118 (11th Cir. 2010).
Incentive fund cards.
- Licensors of an incentive funds card that was marketed and sold by a charter jet company were not liable to a purchaser who bought an incentive funds card from the jet company under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the licensors made no statements verbally or in writing to the purchaser prior to the purchaser's signing the incentive card purchase agreement. Williams v. Jet One Jets, Inc., 755 F. Supp. 2d 1281 (N.D. Ga. Nov. 19, 2010).
Damages.
- Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., authorized punitive damages in addition to mandating treble damages for intentional violations. Conseco Fin. Servicing Corp. v. Hill, 252 Ga. App. 774, 556 S.E.2d 468 (2001).
Statute of limitations.
- Because plaintiff dry cleaners sued defendant natural gas supplier 33 months after the alleged misdeeds, and it was not alleged that any Georgia Public Service Commission proceedings had been initiated that would have postponed the accrual date, the O.C.G.A. § 10-1-393(a) claim was time-barred by O.C.G.A. § 10-1-401(a)'s two-year limitations period. Byung Ho Cheoun v. Infinite Energy, Inc., F.3d (11th Cir. Jan. 27, 2010)(Unpublished).
Appeal of order compelling investigative demand.
- Corporation's direct appeal of a trial court order compelling the corporation to comply with an investigative demand issued by the Governor's Office of Consumer Affairs was dismissed because under binding Georgia Supreme Court authority, an investigative demand constitutes the decision of an administrative agency for the purpose of the discretionary appeal provisions of O.C.G.A. § 5-6-35(a)(1) and, consequently, the corporation was required to apply for a discretionary appeal. Financial Education Services, Inc. v. State of Ga., 336 Ga. App. 606, 785 S.E.2d 544 (2016), cert. denied, 197 L. Ed. 2d 465 (U.S. 2017).
Cited in Lancaster v. Eberhardt, 141 Ga. App. 534, 233 S.E.2d 880 (1977); Attaway v. Tom's Auto Sales, Inc., 144 Ga. App. 813, 242 S.E.2d 740 (1978); Atlanta Auto Auction v. Ryles, 148 Ga. App. 20, 251 S.E.2d 28 (1978); Standish v. Hub Motor Co., 149 Ga. App. 365, 254 S.E.2d 416 (1979); Greenbriar Dodge, Inc. v. May, 155 Ga. App. 892, 273 S.E.2d 186 (1980); Plaza Pontiac, Inc. v. Shaw, 158 Ga. App. 799, 282 S.E.2d 383 (1981); Taylor v. Bear Stearns & Co., 572 F. Supp. 667 (N.D. Ga. 1983); Stafford v. Fitness for Life, 171 Ga. App. 422, 319 S.E.2d 891 (1984); Paces Ferry Dodge, Inc. v. Thomas, 174 Ga. App. 642, 331 S.E.2d 4 (1985); Atlanta Gas Light Co. v. Semaphore Adv., Inc., 747 F. Supp. 715 (S.D. Ga. 1990); Penso Holdings, Inc. v. Cleveland, 324 Ga. App. 259, 749 S.E.2d 821 (2013).
Automobiles
Sale between two non-businesspeople.
- Sale of motor vehicle in the course of private negotiations between two individual parties, neither of whom was a businessperson, did not constitute a transaction "in the conduct of any trade or commerce." Reilly v. Mosley, 165 Ga. App. 479, 301 S.E.2d 649 (1983).
Transaction between auto dealer and finance company.
- After a dealer paid a discount to a finance company to take the assignment of an auto buyer's retail installment sales contract, the transaction was essentially private and outside the protection of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Chancellor v. Gateway Lincoln-Mercury, Inc., 233 Ga. App. 38, 502 S.E.2d 799 (1998).
Seller's claims as to condition of car.
- Trial court properly granted summary judgment as to a car buyer's claims based on the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., after the seller's claims as to the condition of the car, which were relied on by the buyer to support the buyer's claim of fraud, were mere sales puffing. Hill v. Jay Pontiac, Inc., 191 Ga. App. 258, 381 S.E.2d 417 (1989).
Misrepresentation by car dealer's salesperson that used vehicle was a demonstrator was within the scope of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Catrett v. Landmark Dodge, Inc., 253 Ga. App. 639, 560 S.E.2d 101 (2002).
Pre-sale notice to seller of defects in title to merchandise.
- It would constitute an unfair business practice if, before merchandise is sold in the consumer marketplace, a seller is placed on reasonable notice that the seller's claim of title to the merchandise could be legally defective and thereafter in blatant disregard of the rights of innocent purchasers fails to take reasonable measures to ascertain the true state of facts concerning title before consummating the sale. Regency Nissan, Inc. v. Taylor, 194 Ga. App. 645, 391 S.E.2d 467 (1990).
Seller's knowledge of discrepancy in vehicle identification number.
- It was not error, in an action alleging violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to refuse to grant summary judgment in favor of the defendant automobile seller, since the truck sold to the plaintiff buyer was confiscated as a stolen vehicle, and the evidence was that the seller's agent was timely notified of a model number discrepancy on the vehicle identification number plate. Regency Nissan, Inc. v. Taylor, 194 Ga. App. 645, 391 S.E.2d 467 (1990).
Failure of manufacturer to notice defective door and the manufacturer's refusal to give the buyers, upon the buyer's refusal to allow the manufacturer to attempt to repair the vehicle, a new car, are not by themselves an unfair or deceptive practice affecting the consuming public. DeLoach v. General Motors, 187 Ga. App. 159, 369 S.E.2d 484 (1988).
Lease of "used demo" automobile.
- Automobile leased by plaintiffs from defendant dealer as a "used demo" was a "new" car, not a "used" car, and the fact that the car was previously titled to the dealer's son-in-law did not create an issue of fraud in violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Toirkens v. Willett Toyota, Inc., 192 Ga. App. 109, 384 S.E.2d 218 (1989).
Fraud involving representing vehicle as more valuable model, which vehicle was not.
- Trial court erred in granting summary judgment to an auto dealership in a purchaser's suit asserting fraud and violations of Georgia's Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., with regard to the purchase of a vehicle as genuine issues of material fact existed as to each element, and the purchaser's certified letter to the auto dealership was sufficient to satisfy the ante litem notice requirement of the Act; it was irrelevant that the sale was rescinded as there was evidence that the auto dealership offered a vehicle for sale that was not the more valuable model that the dealership represented; and the merger clause in the purchase agreement did not prevent the purchaser from standing on any representation allegedly made by a salesperson since that provision directly contradicted the express provisions of the Act. Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 663 S.E.2d 779 (2008).
Advertisement offering option between lease and financed sale.
- Automobile dealer's advertisement offering either an annual finance rate of 7.7 percent or a 48-month lease was not misleading or deceptive, when, although the customer may have misunderstood the distinction between the various offers made in the advertisement, the consumer admitted the consumer understood the difference between a financed sale and a lease. Blum v. GMAC, 185 Ga. App. 714, 365 S.E.2d 474 (1988).
Negligent repair of individual vehicle.
- Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., does not apply to negligent repair of individual vehicle when the damaged vehicle's owner brings the vehicle to a body shop and enters into a repair agreement and the body shop represents only that the vehicle has been repaired when the vehicle has not. Burdakin v. Hub Motor Co., 183 Ga. App. 90, 357 S.E.2d 839, cert. denied, 183 Ga. App. 905, 357 S.E.2d 839 (1987).
Dealership's role in odometer statement.
- 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).
Arbitration agreement enforceable.
- Car buyer's claim against a lender's assignee under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., could be compelled to arbitration pursuant to an agreement signed by the buyer. O.C.G.A. § 10-1-393(c) was preempted by the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., to the extent it conflicted with the FAA. Wells Fargo Auto Fin., Inc. v. Wright, 304 Ga. App. 621, 698 S.E.2d 17 (2010).
Real Property
Misrepresentation by homeowner selling own house is not likely recurring "consumer" threat and, therefore, has no potential "impact" on general consuming public. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).
Any misrepresentation made by seller in context of selling the seller's own home is not made "in the conduct of any trade or business" but rather in course or private negotiations between two individual parties who have countervailing rights and liabilities established under common-law principles of contract, tort, and property law. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).
Misrepresentation by mortgage lender.
- Homeowner's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., claim against the homeowner's mortgage lender arising out of foreclosure of the homeowner's home failed because the Georgia Residential Mortgage Act, O.C.G.A. § 7-1-1000 et seq., prohibited mortgage businesses from, among other things, pursuing a course of misrepresentation by use of fraudulent or unauthorized documents or other means, O.C.G.A. § 7-1-1013(1), foreclosing a claim under the FBPA, pursuant to O.C.G.A. § 10-1-396. Stewart v. SunTrust Mortg., Inc., 331 Ga. App. 635, 770 S.E.2d 892 (2015).
Misrepresentation by real estate broker.
- Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., incorporates the "reliance" element of the common law tort of misrepresentation into the causation element of an FBPA claim; thus, a claim by purchasers against a real estate broker and sales associates for a violation of FBPA was barred for failure to show reasonable or justifiable reliance on the broker's representations. Allen v. Remax N. Atlanta, Inc., 213 Ga. App. 644, 445 S.E.2d 774 (1994).
Single misrepresentation by business in isolated sale.
- Single oral misrepresentation made by real estate business in context of isolated nondevelopmental sale of real property relating to unique facts concerning that property appears to be an essentially "private" controversy with no impact whatsoever on consumer marketplace. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).
Misrepresentation made to public or in connection with larger development.
- It is arguable that in order to trigger the applicability of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., misrepresentation concerning a single parcel of real property must be made either in the context of a public medium addressed to the general public or, if not made "public," be made in context of an overall development of a larger tract of which an individual parcel is a part. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).
Landlord's failure to repair fuse box.
- Evidence that a landlord failed to repair a fuse box which malfunctioned in the tenant's trailer did not establish a prima facie cause of action under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Simpson v. Yonts, 197 Ga. App. 311, 398 S.E.2d 407 (1990).
Trademarks, Names
Use of existing trademark.
- Corporate poultry producer and marketer, by adopting and using the trademark GOLDEN MEDALLION on its frozen poultry products, infringed poultry cooperative's existing MEDALLION trademark and engaged in unfair competition and deceptive trade practices. Gold Kist, Inc. v. ConAgra, Inc., 708 F. Supp. 1291 (N.D. Ga. 1989).
Use of trade names.
- Buyers' claim that the buyers were confused by the use of trade names belied the record because one buyer testified that the buyer knew exactly who the buyer was dealing with. Isbell v. Credit Nation Lending Serv., LLC, 319 Ga. App. 19, 735 S.E.2d 46 (2012).
Trade name infringement.
- Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., protects businesses from unfair or deceptive practices in the conduct of trade or commerce, including passing off goods or services as those of another, or causing actual confusion as to the source, sponsorship, approval, or certification of goods or services. Thus, the FBPA broadly protects against infringement on a protected trade name by use of a confusingly similar name. Inkaholiks Luxury Tattoos Georgia, LLC v. Parton, 324 Ga. App. 769, 751 S.E.2d 561 (2013).
Use of balloons, costumes, and names of comic book characters by singing telegram company created confusion. DC Comics Inc. v. Unlimited Monkey Bus., Inc., 598 F. Supp. 110 (N.D. Ga. 1984).
OPINIONS OF THE ATTORNEY GENERAL
Fingerprinting of offenders.
- A violation of paragraph (b)(29) of O.C.G.A. § 10-1-393 is an offense for which those charged with a violation are to be fingerprinted. 1996 Op. Att'y Gen. No. 96-17.
RESEARCH REFERENCES
Am. Jur. 2d.
- 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, §§ 1066 et seq., 1085 et seq., 1216.
Misrepresentation in Automobile Sales, 13 Am. Jur. Trials 253.
C.J.S.- 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, § 435 et seq.
ALR.
- Right to protection against simulation of physical appearance or arrangement of place of business, or vehicle, 17 A.L.R. 784; 28 A.L.R. 114.
Application of principles of unfair competition to artistic or literary property, 19 A.L.R. 949.
Protection of business or trading corporation against use of same or similar name by another corporation, 66 A.L.R. 948; 72 A.L.R.3d 8.
Right of manufacturer to question reasonableness of regulation by individual or private corporation which excludes use of manufacturer's products, 81 A.L.R. 1422.
Protection of business or trading corporation against use of same or similar name by another corporation, 115 A.L.R. 1241.
Unfair competition in use of geographical trade name by persons carrying on business elsewhere, 174 A.L.R. 496.
Right, in absence of self-imposed restraint, to use one's own name for business purposes to detriment of another using the same or a similar name, 44 A.L.R.2d 1156; 72 A.L.R.3d 8.
Construction and effect of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like, 54 A.L.R.2d 1187.
Criminal responsibility for fraud or false pretenses in connection with home repairs or installations, 99 A.L.R.2d 925.
Commercial competitor's truthful denomination of his goods as copies of designs of another, using designer's name, as trademark infringement, unfair competition, or the like, 1 A.L.R.3d 760.
Unfair competition by direct reproduction of literary, artistic, or musical property, 40 A.L.R.3d 566.
Validity, construction, and effect of state legislation regulating or controlling "bait-and-switch" or "disparagement" advertising or sales practices, 50 A.L.R.3d 1008.
Right of state, public official, or governmental entity to seek, or power of court to allow, restitution of fruits of consumer fraud, without specific statutory authorization, 55 A.L.R.3d 198.
Use of "family name" by corporation as unfair competition, 72 A.L.R.3d 8.
Trade dress simulation of cosmetic products as unfair competition, 86 A.L.R.3d 505.
Unfair competition by imitation in sign or design of business place, 86 A.L.R.3d 884.
Validity, construction, and application of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like, 41 A.L.R.4th 675.
Private contests and lotteries: entrants' rights and remedies, 64 A.L.R.4th 1021.
Right to private action under state consumer protection act - Preconditions to action, 117 A.L.R.5th 155.
Application of Federal Trade Commission Act (15 U.S.C.A. §§ 41 et seq.) to web sites and their operators, 70 A.L.R. Fed. 2d 1.
Validity, construction, and application of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like, 83 A.L.R.6th 419.
Fraudulent representations concerning price, discount, condition, quality, availability or shipping costs of consumer goods and services sold on internet, 38 A.L.R.7th Art. 4.