2020 Georgia Code
Title 10 - Commerce and Trade
Chapter 1 - Selling and Other Trade Practices
Article 15 - Deceptive or Unfair Practices
Part 2 - Fair Business Practices Act
§ 10-1-399. Civil or Equitable Remedies by Individuals

1. Any person who suffers injury or damages as a result of a violation of Chapter 5B of this title, as a result of consumer acts or practices in violation of this part, as a result of office supply transactions in violation of this part or whose business or property has been injured or damaged as a result of such violations may bring an action individually, but not in a representative capacity, against the person or persons engaged in such violations under the rules of civil procedure to seek equitable injunctive relief and to recover his or her general and exemplary damages sustained as a consequence thereof in any court having jurisdiction over the defendant; provided, however, exemplary damages shall be awarded only in cases of intentional violation. Notwithstanding any other provisions of law, a debtor seeking equitable relief to redress an injury resulting from a violation of paragraph (20) of subsection (b) of Code Section 10-1-393, upon facts alleged showing a likelihood of success on the merits, may not, within the discretion of the court, be required to make a tender. Nothing in this subsection or paragraph (20) of subsection (b) of Code Section 10-1-393 shall be construed to interfere with the obligation of the debtor to a lender who is not in violation of paragraph (20) of subsection (b) of Code Section 10-1-393. A claim under this Code section may also be asserted as a defense, setoff, cross-claim, or counterclaim or third-party claim against such person.
2. At least 30 days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be delivered to any prospective respondent. Any person receiving such a demand for relief who, within 30 days of the delivering of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning this rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner. The demand requirements of this subsection shall not apply if the prospective respondent does not maintain a place of business or does not keep assets within the state. The 30 day requirement of this subsection shall not apply to a debtor seeking a temporary restraining order to redress or prevent an injury resulting from a violation of paragraph (20) of subsection (b) of Code Section 10-1-393, provided that said debtor gives, or attempts to give the written demand required by this subsection at least 24 hours in advance of the time set for the hearing of the application for the temporary restraining order. Such respondent may otherwise employ the provisions of this Code section by making a written offer of relief and paying the rejected tender into court as soon as practicable after receiving notice of an action commenced under this Code section. All written tenders of settlement such as described in this subsection shall be presumed to be offered without prejudice in compromise of a disputed matter.
3. Subject to subsection (b) of this Code section, a court shall award three times actual damages for an intentional violation.
4. If the court finds in any action that there has been a violation of this part, the person injured by such violation shall, in addition to other relief provided for in this Code section and irrespective of the amount in controversy, be awarded reasonable attorneys' fees and expenses of litigation incurred in connection with said action; provided, however, the court shall deny a recovery of attorneys' fees and expenses of litigation which are incurred after the rejection of a reasonable written offer of settlement made within 30 days of the mailing or delivery of the written demand for relief required by this Code section; provided, further, that, if the court finds the action continued past the rejection of such reasonable written offer of settlement in bad faith or for the purposes of harassment, the court shall award attorneys' fees and expenses of litigation to the adverse party. Any award of attorneys' fees and expenses of litigation shall become a part of the judgment and subject to execution as the laws of Georgia allow.
5. Any manufacturer or supplier of merchandise whose act or omission, whether negligent or not, is the basis for action under this part shall be liable for the damages assessed against or suffered by retailers charged under this part. A claim of such liability may be asserted by cross-claim, third-party complaint, or by separate action.
6. It shall not be a defense in any action under this part that others were, are, or will be engaged in like practices.
7. In any action brought under this Code section the Attorney General shall be served by certified or registered mail or statutory overnight delivery with a copy of the initial complaint and any amended complaint within 20 days of the filing of such complaint. The Attorney General shall be entitled to be heard in any such action, and the court where such action is filed may enter an order requiring any of the parties to serve a copy of any other pleadings in an action upon the Attorney General.

(Ga. L. 1975, p. 376, § 10; Ga. L. 1985, p. 642, § 1; Ga. L. 1986, p. 1046, § 4; Ga. L. 1987, p. 794, § 3; Ga. L. 1988, p. 983, § 3; Ga. L. 1996, p. 231, § 2; Ga. L. 2000, p. 1589, § 4; Ga. L. 2015, p. 1088, § 2/SB 148.)

The 2015 amendment, effective July 1, 2015, in subsection (a), inserted "or her" near the end of the first sentence and substituted "Attorney General" for "administrator" throughout subsection (g).

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

- For article suggesting the tortious nature of a violation of the Fair Business Practices Act, see 10 Ga. L. Rev. 917 (1976). 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, "Overcoming Under-Compensation and Under-Deterrence in Intentional Tort Cases: Are Statutory Multiple Damages the Best Remedy?," see 62 Mercer L. Rev. 449 (2011). For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

ANALYSIS

• General Consideration
• Demand for Relief
• Tender of Settlement
• Cause of Action
• Damages
• Illustrative Cases

General Consideration

Factors determining if part violated.

- 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., or an "isolated" incident not covered under the statute, 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).

- Unless it can be said that defendant's actions had or has potential harm for consumer public, the act or practice cannot be said to have "impact" on consumer marketplace and any act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

Though the plaintiff may be a "consumer" with regard to the transaction, if the deceptive or unfair act or practice had or has no potential for harm to the general consuming public, the allegedly wrongful act of the defendant was not made in the context of the consumer marketplace. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

- 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).

- Trial court erred in granting summary judgment in favor of a health and nutrition multi-level distribution company in a physician's action alleging violations of the Georgia Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., and the Georgia Sale of Business Opportunities Act (SBOA), O.C.G.A. § 10-1-410 et seq., because the physician's claims were not res judicata based on a default judgment entered in favor of the company in a Texas court, and since the four corners of the physician's complaint reveal that the physician's claims were not based on breach of contract but were based on violation of the SBOA, the contractual defense of a forum selection clause did not apply; FBPA claims are not contract claims. Walker v. Amerireach.com, 306 Ga. App. 658, 703 S.E.2d 100 (2010), aff'd in part, 290 Ga. 261, 719 S.E.2d 489 (2011).

Court of appeals erred in ruling that a physician's claims that a limited liability company (LLC) violated the Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-399(b), were not barred by res judicata because the physician was barred by a Texas judgment from filing an FBPA claim against the LLC in Georgia, and a Georgia court could not make its own determination regarding whether the forum selection clause in the parties' agreement precluded the filing of an FBPA claim in Georgia; there was no public policy exception to the Full Faith and Credit Clause, and the Texas judgment went to the merits of, and adversely controlled, the physician's claim that the forum selection clause was inapplicable to an FBPA claim. Amerireach.com, LLC v. Walker, 290 Ga. 261, 719 S.E.2d 489 (2011).

Cited in State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8, 244 S.E.2d 15 (1978); Rewis v. Browning, 153 Ga. App. 352, 265 S.E.2d 316 (1980); Pendigrass v. Edmonds, 247 Ga. 508, 277 S.E.2d 247 (1981); Preiser v. Jim Letts Oldsmobile, Inc., 160 Ga. App. 658, 288 S.E.2d 219 (1981); Taylor v. Bear Stearns & Co., 572 F. Supp. 667 (N.D. Ga. 1983); Southern Bell Tel. & Tel. Co. v. Associated Tel. Directory Publishers, 756 F.2d 801 (11th Cir. 1985); Paces Ferry Dodge, Inc. v. Thomas, 174 Ga. App. 642, 331 S.E.2d 4 (1985); Tilley v. Page, 181 Ga. App. 98, 351 S.E.2d 464 (1986); Brown Realty Assocs. v. Thomas, 193 Ga. App. 847, 389 S.E.2d 505 (1989); Sharpe v. GMC, 198 Ga. App. 313, 401 S.E.2d 328 (1991); Billy Cain Ford Lincoln Mercury, Inc. v. Kaminski, 230 Ga. App. 598, 496 S.E.2d 521 (1998); SunTrust Bank v. Hightower, 291 Ga. App. 62, 660 S.E.2d 745 (2008); Austin v. Bank of Am., N.A., 293 Ga. 42, 743 S.E.2d 399 (2013); Penso Holdings, Inc. v. Cleveland, 324 Ga. App. 259, 749 S.E.2d 821 (2013).

Demand for Relief

Section incorporates common law.

- Since subsection (b) contemplates notice of deception relied upon as prerequisite to suit for recovery of damages resulting from that deception, this section is construed as incorporating "reliance" element of common-law tort of misrepresentation into causation element of an individual claim. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

- Notice requirement of subsection (b) of O.C.G.A. § 10-1-399 is to be liberally construed and the sufficiency of notice is a question for the court. Lynas v. Williams, 216 Ga. App. 434, 454 S.E.2d 570 (1995).

- Even though a letter of notice does not cite Ga. L. 1975, p. 376, if the letter is sufficient in and of itself to independently apprise defendant of the underlying facts giving rise to the claim, then the letter is sufficient notice. Colonial Lincoln-Mercury Sales, Inc. v. Molina, 152 Ga. App. 379, 262 S.E.2d 820 (1979).

- While the notice pursuant to O.C.G.A. § 10-1-399 is not technically an element of a cause of action for a Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., violation, it is a statutory prerequisite to the filing of a FBPA suit that adequate written notice be timely sent. Lynas v. Williams, 216 Ga. App. 434, 454 S.E.2d 570 (1995).

Tenant's letter to a former landlord informing the landlord that the tenant's eviction was unfair and requesting that the landlord pay for damages done to the tenant's family was adequate notice for purposes of the tenant's Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., claim. Stringer v. Bugg, 254 Ga. App. 745, 563 S.E.2d 447 (2002).

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).

Former homeowner was required to give notice to a defendant under O.C.G.A. § 10-1-399 even though the defendant was incorporated and had the defendant's principal place of business in a different state. There was no evidence that the defendant did not maintain a place of business in Georgia or keep some assets in Georgia, and the homeowner's contention was predicated on uncertified computer printouts from the Secretary of State's website, which were inadmissible under former O.C.G.A. § 24-7-20 (see now O.C.G.A. § 24-9-920). Steed v. Fed. Nat'l Mortg. Corp., 301 Ga. App. 801, 689 S.E.2d 843 (2009).

- The 30-day notice requirement of O.C.G.A. § 10-1-399(b) does not toll or extend the limitations period provided for in O.C.G.A. § 10-1-401 and does not constitute the bringing of an action. Greene v. Team Props., Inc., 247 Ga. App. 544, 544 S.E.2d 726 (2001), overruled on other grounds, Foster v. Ga. Reg'l Transp. Auth., 297 Ga. 714, 777 S.E.2d 446 (2015).

- Because a debtor asserted a Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., claim as a counterclaim, the debtor was not required to deliver a written demand for relief under O.C.G.A. § 10-1-399(b). 1st Nationwide Collection Agency, Inc. v. Werner, 288 Ga. App. 457, 654 S.E.2d 428 (2007).

Tender of Settlement

Tender of settlement must be in writing.

- Subsection (b) of O.C.G.A. § 10-1-399 expressly requires that the tender of settlement be in writing and is so plain and unambiguous that judicial construction is both unnecessary and unauthorized, and the legislature's clear intent that the settlement offer be in writing will not be thwarted by invocation of the rule of substantial compliance. Regency Nissan, Inc. v. Taylor, 194 Ga. App. 645, 391 S.E.2d 467 (1990).

- Although a tender of settlement may limit the amount of damages recoverable, it does not deprive a plaintiff of the plaintiff's cause of action. Crown Ford, Inc. v. Crawford, 221 Ga. App. 881, 473 S.E.2d 554 (1996).

Cause of Action

1. In General

- There is a separate and distinct cause of action under the provisions of this section, and a consumer who is damaged has an independent right to recover under the Fair Business Practices Act regardless of any other theory of recovery. Attaway v. Tom's Auto Sales, Inc., 144 Ga. App. 813, 242 S.E.2d 740 (1978); Standish v. Hub Motor Co., 149 Ga. App. 365, 254 S.E.2d 416 (1979); Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

- Suits brought pursuant to Ga. L. 1975, p. 376, § 10 must serve public interest and implement purpose of Ga. L. 1975, p. 376 - the end to unfair or deceptive acts or practices in public consumer marketplace. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

Purpose and intent of Ga. L. 1975, p. 376 is protection of public, and private suit under Ga. L. 1975, p. 376, § 10 may be brought only if the suit implements that underlying purpose and intent. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

- O.C.G.A. § 10-1-401(a)(1) did not bar a home buyer's claim under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the buyer did not suffer any actual damages at the time of the alleged violation, and could not have suffered any such damages at least until the homebuilder conveyed the house to the buyer without complying with code requirements or used the contractual language in question to deny liability; therefore, the buyer's cause of action did not accrue until less than two years prior to the date the buyer filed suit. Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68 (2005).

In an action in which the injured party alleged that the builder made a misrepresentation in the construction contract by including conflicting provisions regarding liability for construction of the property in accordance with building codes, justifiable reliance, pursuant to O.C.G.A. § 10-1-399, was an essential element of the injured party's Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., claim. Tiismann v. Linda Martin Homes Corp., 276 Ga. App. 846, 625 S.E.2d 32 (2005).

Owner was unable to hold the builder liable under O.C.G.A. § 10-1-399 based upon an alleged misrepresentation in a contract purporting to limit the builder's liability for failing to build the owner's home to code; the owner did not rely on the provision at issue, as the owner had read the provision and signed the agreement anyway, believing the provision to be unenforceable. Tiismann v. Linda Martin Homes Corp., 281 Ga. 137, 637 S.E.2d 14 (2006).

Case law interpreting O.C.G.A. § 10-1-399 to include an element of reliance in cases involving misrepresentation is still valid despite amendments to § 10-1-399. Tiismann v. Linda Martin Homes Corp., 281 Ga. 137, 637 S.E.2d 14 (2006).

Purchasers of condominium units could not maintain the purchasers' claims against the developers and a broker for violation of the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the purchasers could not show justifiable reliance as the purchasers were estopped from relying on an alleged representation that was made outside of a written agreement into which the purchasers entered. Novare Group, Inc. v. Sarif, 290 Ga. 186, 718 S.E.2d 304 (2011).

- To be subject to direct suit under the Fair Business Practices Act, an alleged offender must perform some volitional act to avail oneself 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).

In action on contract when defendant denied liability on contract on ground of partial failure of consideration and brought a counterclaim against the plaintiff under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., but failed to present evidence of a volitional unfair or deceptive act or practice, O.C.G.A. § 10-1-399 was not applicable and the plaintiff's failure to comply with the statute's terms was irrelevant. Gresham v. White Repair & Contracting Co., 158 Ga. App. 235, 279 S.E.2d 528 (1981).

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. Harlander v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).

- While suit under this section is brought in the plaintiff's individual capacity, it must be in the plaintiff's capacity as an individual member of a consuming public who has suffered damage as a result of unfair or deceptive act or practice which had or has potential harmful effect on general consuming public. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

Owner of a trademark in a trademark infringement case was not a consumer who sustained damage and thus the owner was not entitled to an award of attorney fees under O.C.G.A. § 10-1-399. Lone Star Steakhouse & Saloon v. Longhorn Steaks, Inc., 106 F.3d 355 (11th Cir. 1997).

- Contrary to Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980), subsection (a) of O.C.G.A. § 10-1-399 does not appear to limit actions under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to individual members of the consuming public; instead, it simply allows any person injured as a result of a violation to bring an action and, thus, whether a FBPA plaintiff must be an individual member of the consuming public seems to be an unsettled question of Georgia law. Friedlander v. PDK, Labs, Inc., 59 F.3d 1131 (11th Cir. 1995) (see annotation under catchline "Damage must be in capacity as member of consuming public").

- One may bring a private suit under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., only if one is individually injured by breach of duty owed to consuming public in general. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

- This section does not encompass suits based upon allegedly deceptive or unfair acts or practices which occur in essentially private transactions. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

This section, providing for a private right of action, was enacted to give effect to the intent of the General Assembly that such practices be swiftly stopped, and is part of enforcement and regulatory scheme underlying public protection policy of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., and as such does not create an additional remedy for redress of private wrongs occurring outside the context of the public consumer marketplace. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

That Ga. L. 1975, p. 376, § 10 provides for equitable injunctive relief and for recovery of treble damages for intentional violations is evidence that the legislature intended the statute to serve as an aid in enforcing the underlying public protection policy of Ga. L. 1975, p. 376 by enlisting litigative assistance of those individual members of consuming public damaged by unfair or deceptive acts or practices and not as a basis for new private remedy for individuals who are damaged by acts or practices which have no potential for impact on general consuming public. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

Private claim under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., has three elements: violation of the Act, causation, and injury. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980); Moore-Davis Motors, Inc. v. Joyner, 252 Ga. App. 617, 556 S.E.2d 137 (2001).

Single instance of unfair or deceptive act or practice is sufficient predicate upon which to base claim for damages if public consumer interest would be served thereby. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980).

- Despite the inherent equitable nature of the claim, the trial court retains the authority to order a jury trial of claims under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., or as to ex delicto actions involving unliquidated damages which must be determined by a jury. Greenbriar Dodge, Inc. v. May, 155 Ga. App. 892, 273 S.E.2d 186 (1980).

- While the fact of notice under subsection (b) of this section is a question for jury resolution, the sufficiency of notice, if given, is a matter for court determination. Colonial Lincoln-Mercury Sales, Inc. v. Molina, 152 Ga. App. 379, 262 S.E.2d 820 (1979).

Question of sufficiency of notice is one for court. Plaza Pontiac, Inc. v. Shaw, 158 Ga. App. 799, 282 S.E.2d 383 (1981).

- Court dismissed, without prejudice, an uninsured patient's Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., claims against a non-profit hospital and an affiliated health company because: (1) the patient alleged that the defendants violated state and federal law with regard to its billing practices for uninsured and/or indigent patients and that the patient should not have to pay the patient's treatment costs because the hospital was a non-profit hospital; and (2) I.R.S. § 501(c)(3) did not confer subject matter jurisdiction on the court over the patient's fair business practice claims because the claims were based on the theory that § 501(c)(3) created an enforceable trust between the hospital and the federal government, and no such trust was created under federal law. Ellis v. Phoebe Putney Health Sys., F. Supp. 2d (M.D. Ga. Apr. 8, 2005).

2. Diligence of Plaintiff

Plaintiff must be diligent in discovering truth.

- Under Ga. L. 1975, p. 376, p. 10, a claimant who alleges Ga. L. 1975, p. 376 was violated as a result of misrepresentation must demonstrate that the claimant was injured as a result of reliance upon alleged misrepresentation and, therefore, the claimant is not entitled to recover if the claimant had equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910 (1980); Nims v. Otter, 188 Ga. App. 516, 373 S.E.2d 396 (1988); Massey v. Thomaston Ford Mercury, 196 Ga. App. 278, 395 S.E.2d 663 (1990).

When any damage purchaser may have suffered was charged to the purchaser's lack of diligence and not to the purchaser's reliance upon any misrepresentation, the purchaser suffered no damage as a result of a violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Heidt v. Potamkin Chrysler-Plymouth, Inc., 181 Ga. App. 903, 354 S.E.2d 440 (1987).

- Trial court erred in denying automobile dealer's motion for summary judgment with respect to the customers' claims that the lease transactions violated the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. since the customers alleged no artifice or fraud which would have prevented the customers from reading the lease agreements prior to signing the leases. Delta Chevrolet, Inc. v. Wells, 187 Ga. App. 694, 371 S.E.2d 250 (1988).

- In a case in which the injured party alleged that the builder violated the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the construction contract contained contradictory language that assured the injured party that the builder was to build the home in accordance with the building codes but also incorporated a limited warranty disclaiming responsibility for any violations of the building codes, the injured party's claim under the Act failed, as the injured party did not, as a matter of law, reasonably rely upon the contradictory contract provisions as required for an action under O.C.G.A. § 10-1-399; there was no confidential relationship between the parties, and the injured party was not prevented by artifice or fraud from making an inspection to determine the truth or falsity of the alleged representation. Tiismann v. Linda Martin Homes Corp., 276 Ga. App. 846, 625 S.E.2d 32 (2005).

3. Evidence

Oral misrepresentation contrary to written agreement.

- If the alleged oral misrepresentation attributed to the defendant was contrary to the express terms of the written agreement underlying the sale, the trial court did not err in ruling that the purchaser's testimony regarding that misrepresentation was inadmissible. Heidt v. Potamkin Chrysler-Plymouth, Inc., 181 Ga. App. 903, 354 S.E.2d 440 (1987).

A mere showing that a person became sick subsequent to eating food was insufficient to establish a claim for violation of the Fair Business Practice Act, O.C.G.A. § 10-1-390 et seq., predicated upon the allegation that the plaintiff was injured because of the unfair and deceptive practice of selling foodstuffs after the expiration date. Stevenson v. Winn-Dixie Atlanta, Inc., 211 Ga. App. 572, 440 S.E.2d 465 (1993).

Measure of damages is the actual injury suffered. Standish v. Hub Motor Co., 149 Ga. App. 365, 254 S.E.2d 416 (1979); Givens v. Bourrie, 190 Ga. App. 425, 379 S.E.2d 223 (1989).

An award for general damages under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is limited to those damages that can be measured by actual injury suffered, and the general provisions of O.C.G.A. § 51-12-2(a) are not applicable. Regency Nissan, Inc. v. Taylor, 194 Ga. App. 645, 391 S.E.2d 467 (1990).

- The measure of damages to be applied for in a statutory violation was that of actual injury suffered; the general provisions of O.C.G.A. § 51-12-2(a), damages recoverable without proof of amount, were not applicable. Moore-Davis Motors, Inc. v. Joyner, 252 Ga. App. 617, 556 S.E.2d 137 (2001).

When a consumer sued a car dealer under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., concerning the car purchased from the dealer, the consumer did not show an actual injury by any alleged violation because there was no evidence of the actual value of the car at the time the car was bought, as actual damages, for purposes of the Act, meant relief other than a refund of the purchase price and restitution. Small v. Savannah Int'l Motors, Inc., 275 Ga. App. 12, 619 S.E.2d 738 (2005).

- Within the meaning of the Fair Business Practices Act, "actual damages" means relief other than the refund of the purchase price and the return to the status quo that constitutes restitution. Colonial Lincoln-Mercury Sales, Inc. v. Molina, 152 Ga. App. 379, 262 S.E.2d 820 (1979).

- 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).

- Damages award was not in error because: (1) the debtor's declaration supported finding a debt collector's false representation of a debt and failure to notify credit reporting agencies that the debt was disputed caused the debtor emotional distress; and (2) those acts constituted violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., for which damages could be recovered under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Carlisle v. Nat'l Commer. Servs., F.3d (11th Cir. Jan. 2, 2018)(Unpublished).

Treble damages and attorney fees may be awarded for certain egregious or intentional misconduct. Stanley v. Hub Motor Co., 149 Ga. App. 365, 254 S.E.2d 416 (1979).

Debtor was properly awarded treble damages in the debtor's claim against a collection agency. The trial court found that the agency intentionally violated the Fair Debt Collection Practices Act, 15 U.S.C. § 16921, thereby violating the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. 1st Nationwide Collection Agency, Inc. v. Werner, 288 Ga. App. 457, 654 S.E.2d 428 (2007).

Trial court erred by awarding treble damages of the entire compensatory damages award for each violation, which amounted to sextuple damages for each violation, as the jury awarded the car buyer compensatory damages of $4,114.50 and, in addition, the jury awarded $24,684 on the basis of both the treble damages provision in the Fair Business Practices Act, O.C.G.A. § 10-1-399(c), and the treble damages provision in the odometer statute, O.C.G.A. § 40-8-5(g)(1)(A), with no verdict allocation. Gobran Auto Sales, Inc. v. Bell, 335 Ga. App. 873, 783 S.E.2d 389 (2016).

Exemplary damages are not necessarily subsumed in treble damages allowed under subsection (c) of this section. Colonial Lincoln-Mercury Sales, Inc. v. Molina, 152 Ga. App. 379, 262 S.E.2d 820 (1979).

Full trial damages recovered under subsection (b) of O.C.G.A. § 10-1-399. - See Park Leasing Co. v. TWS, Inc., 206 Ga. App. 864, 426 S.E.2d 620 (1992).

- Trial court was authorized to award punitive damages, but not required to award three times the compensatory damages, or any amount at all. Conseco Fin. Servicing Corp. v. Hill, 252 Ga. App. 774, 556 S.E.2d 468 (2001).

- When jury rendered a verdict in favor of a beauty pageant contestant, finding that the pageant promoters violated the statutory requirements regarding the providing of certain information to contestants, the posting of a bond, and the maintaining of an escrow account, in violation of O.C.G.A. §§ 10-1-831,10-1-832, and10-1-837, the trial court's award of attorney fees and litigation expenses to the contestant pursuant to O.C.G.A. §§ 10-1-835 and10-1-399 was proper. Galardi v. Steele-Inman, 266 Ga. App. 515, 597 S.E.2d 571 (2004).

Debtor was properly awarded attorney fees in the debtor's claim against a collection agency. The agency, which did not appear at the trial, did not provide the appellate court with a transcript of the nonjury trial sufficient to enable the appellate court to determine the issue at hand; moreover, the affidavit submitted by the debtor's attorneys clearly provided detailed information sufficient to enable the fact finder to determine what each of the attorneys did, to allocate the services provided between successful and unsuccessful claims, and to determine whether any services rendered were duplicative. 1st Nationwide Collection Agency, Inc. v. Werner, 288 Ga. App. 457, 654 S.E.2d 428 (2007).

- Because a cable television subscriber would automatically recover attorney fees if the subscriber prevailed on the subscriber's claim against cable television providers under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-399(d), and was highly likely to recover fees under O.C.G.A. § 13-6-11 if the subscriber prevailed on intentional tort claims for fraud and trespass, an attorney would have an incentive to represent the subscriber during arbitration. Therefore, a class action waiver contained in an arbitration clause in the parties' subscription contract was not unconscionable under Georgia law, and the arbitration clause was enforceable under the Federal Arbitration Act, 9 U.S.C. § 2. Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277 (N.D. Ga. 2008).

Illustrative Cases

Misrepresentation in selling own home.

- Misrepresentation made by homeowner selling the seller's own house is not likely to be a 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 a seller in the context of selling the seller's own home is not made "in the conduct of any trade or business" but rather in the course of 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).

- Single oral misrepresentation made by real estate business in content 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).

- In an action against a store based on a sign advertising a "buy one get one free" sale without indicating limitations, if the sale actually applied only to certain items, plaintiff was not entitled to recovery because of the plaintiff's inability to prove causation and damages. Agnew v. Great Atl. & Pac. Tea Co., 232 Ga. App. 708, 502 S.E.2d 735 (1998).

Borrower whose loan was disapproved for a bona fide reason unrelated to a lender's allegedly deceptive interest rate commitment could not claim to have been injured by the alleged unfair practice; moreover, statistical evidence of recent loan applications tended to negate the borrower's allegation that the lender engaged in a "bait and switch" operation. Whisenant v. Fulton Fed. Sav. & Loan Ass'n, 200 Ga. App. 31, 406 S.E.2d 793 (1991).

- Evidence, which included a showing of an auto dealership's attempt to pressure a customer into purchasing a more expensive van, was insufficient to support the jury's award of actual and punitive damages. Miles Rich Chrysler-Plymouth, Inc. v. Mass, 201 Ga. App. 693, 411 S.E.2d 901 (1991).

- 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).

- Because the 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).

- In a case involving a contract in which a builder limited the builder's liability for failing to build to code, the builder's post-closing refusal to accept responsibility for remedying the code violations was not unfair or deceptive under O.C.G.A. § 10-1-399, as it was based on the contract that the owner had signed, and the builder's decision to litigate the issue was not unfair or deceptive and did not injure the owner, who received a substantial sum in arbitration as a result. Tiismann v. Linda Martin Homes Corp., 281 Ga. 137, 637 S.E.2d 14 (2006).

- Because the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-399(a), by the Act's terms, prohibited consumer class actions, an arbitration clause in a cable television subscription agreement that contained a class action waiver clause was not unconscionable under Georgia law and was enforceable under the Federal Arbitration Act, 9 U.S.C. § 2. Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277 (N.D. Ga. 2008).

- 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).

- After plaintiff bank customers alleged 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, it 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).

- Trial court erred in dismissing a physician's complaint against a health and nutrition multi-level distribution company's officers alleging violations of the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., and the Georgia Sale of Business Opportunities Act (SBOA), O.C.G.A. § 10-1-410 et seq., on the ground that the court lacked personal jurisdiction because in response to requests for admissions, the company admitted that the company was a "multilevel distribution company" as defined in the SBOA, that the provisions of the SBOA, O.C.G.A. § 10-1-415(c)(4), applied to any agreement made in Georgia, that the officers were founding members of the company and were officers when the physician became a marketer; the officers also admitted that the physician's cancellation rights under Georgia law were generally known to the officers. Walker v. Amerireach.com, 306 Ga. App. 658, 703 S.E.2d 100 (2010), aff'd in part, 290 Ga. 261, 719 S.E.2d 489 (2011).

- 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).

RESEARCH REFERENCES

Am. Jur. 2d.

- 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Practices, §§ 953 et seq., 1081 et seq.

- 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, § 291.

- Punitive or exemplary damages as recoverable for trademark infringement or unfair competition, 47 A.L.R.2d 1117.

Right to private action under state consumer protection Act, 62 A.L.R.3d 169.

Reasonableness of offer of settlement under deceptive trade practice and consumer protection Acts, 90 A.L.R.3d 1350.

Right to private action under state consumer protection act - Preconditions to action, 117 A.L.R.5th 155.