United States Court of Appeals,
Eleventh Circuit.
No. 94-8299.
Mitchell K. FRIEDLANDER, Plaintiff-Appellant,
v.
PDK, LABS, INC., a New York Corporation, Defendant-Appellee.
July 27, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-cv-2706-ODE), Orinda D. Evans,
Judge.
Before HATCHETT and EDMONDSON, Circuit Judges, and GIBSON*, Senior
Circuit Judge.
PER CURIAM:
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT
TO O.C.G.A. § 15-2-9.
TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE JUSTICES:
It appears to the United States Court of Appeals for the
Eleventh Circuit that this case involves an unanswered question of
Georgia law that is determinative of this appeal. Therefore, we
certify the following question of law, based on the facts and
procedural history recited below, to the Supreme Court of Georgia
for instructions.
FACTS
Appellant, Mitchell K. Friedlander, obtained a patent on a
diet control drug and is in the process of obtaining approval for
his patented product from the Food and Drug Administration (FDA).
Appellee, PDK Labs, Inc. (PDK), markets and sells diet control
*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
products. Friedlander alleges that PDK unfairly and deceptively
markets its products. Specifically, he alleges that PDK has failed
to disclose to consumers that its products are untested and lack
FDA approval. Friedlander contends that purchasers have relied on
these misrepresentations, and that, consequently, PDK has injured
the general consuming public. Friedlander also claims that PDK's
alleged misrepresentations have eroded general consumer confidence
in weight control products; as a result, PDK's actions have
reduced the desirability of his product and thereby injured his
business.
PROCEDURAL HISTORY
On November 19, 1993, Friedlander filed a complaint in the
Superior Court of Fulton County, Georgia. Friedlander alleged that
PDK violated the Georgia Fair Business Practices Act (FBPA),
O.C.G.A. § 10-1-390 et seq., and requested: (1) a temporary
restraining order and a preliminary injunction prohibiting the
marketing and sale of PDK's products; (2) a permanent injunction
restraining the marketing and sale of PDK's products until PDK
obtains FDA approval; (3) restitution and treble damages for
consumers who had purchased PDK's products; (4) damages to
compensate his losses; and (5) attorneys' fees. PDK removed the
case to the United States District Court for the Northern District
of Georgia, and filed a motion to dismiss. Friedlander then sought
to amend his complaint to allege that PDK's misrepresentations had
also caused him, personally, to purchase its diet control products.
On February 26, 1994, the district court granted PDK's motion
to dismiss, explaining that Friedlander was either "attempting to
bring this suit in a representative capacity on behalf of the
consuming public even though he himself has suffered no actual harm
as a consumer" or was "seek[ing] a private remedy for competitive
disadvantage." In either case, the district court held that
Friedlander could not maintain a cause of action under the FBPA.
Because it dismissed the lawsuit, the district court denied
Friedlander's motion to amend his complaint.** Friedlander then
filed this appeal.
DISCUSSION
It is clear that a plaintiff may only bring an action under
the FBPA against a defendant who engages in deceptive or unfair
practices that have the potential to harm the general consuming
public. See, e.g., Lynas v. Williams, 216 Ga.App. 434, 436, 454
S.E.2d 570, 573 (1995). This requirement is not a problem in this
case because Friedlander alleges that PDK's deceptive acts have
harmed the general consuming public.
The Georgia Court of Appeals, however, has also stated that
a plaintiff may only bring a lawsuit under the FBPA "in his
capacity as an individual member of the consuming public who has
suffered damage as the result of an unfair or deceptive act or
practice which had or has potential harmful effect on the general
consuming public." Zeeman v. Black, 156 Ga.App. 82, 84, 273 S.E.2d
910, 914 (1980) (emphasis added). Friedlander is a potential
**
The district court noted that Friedlander's lawsuit was
subject to dismissal even when considering his amended complaint.
Specifically, the district court found that, given Friedlander's
experience with the diet control market, his claim that he, as an
individual consumer, was duped into purchasing PDK's products
lacked any basis. Friedlander does not challenge this finding on
appeal.
competitor of PDK, not a member of the consuming public. Thus,
under Zeeman, it would appear that Friedlander does not have a
cause of action.
Nonetheless, the purpose of the FBPA is "to protect consumers
and legitimate business enterprises from unfair or deceptive
practices." O.C.G.A. § 10-1-391(a) (emphasis added). The use of
the conjunctive "and" may mean that the FBPA is not limited to
individual consumers. If the FBPA also protects legitimate
business enterprises, perhaps Friedlander does have a cause of
action, for his complaint alleges that his competitor, PDK, has
engaged in unfair and deceptive practices that harm the general
consuming public. Furthermore,
[a]ny person who suffers injury or damages ... or whose
business or property has been injured or damaged as a result
of consumer acts or practices ... in violation of [the FBPA]
may bring an action individually, but not in a representative
capacity, against the person or persons engaged in such
unlawful consumer acts or practices....
O.C.G.A. § 10-1-399(a). Contrary to Zeeman, this provision does
not appear to limit actions under the FBPA to individual members of
the consuming public; instead, it simply allows any person that
has been injured as a result of a FBPA violation to bring an
action. Thus, whether a FBPA plaintiff must be an individual
member of the consuming public seems to be an unsettled question of
Georgia law.
Accordingly, we certify the following question to the Supreme
Court of Georgia:
Do non-consumers have a cause of action under the FBPA when
they allege an injury due to a competitor's misrepresentations
to the general consuming public?
The phrasing of this question is not intended to limit the Supreme
Court in considering the issue presented or the manner in which it
gives its answer. The entire record in this case and the briefs of
the parties shall be transmitted to the Supreme Court of Georgia
for assistance in answering this question.
QUESTION CERTIFIED.