O.C.G.A. § 10-1-391 (2019)

Annotations

Cross references. Certain security and other consumer transactions excluded from Commercial Code, § 11-2-102. Law reviews. For comment, “The Georgia Fair Business Practices Act: Business As Usual,” see 9 Ga. St. U.L. Rev. 453 (1993).

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 note, “Cybersecurity on my Mind: Protecting Georgia Consumers from Data Breaches,” see 51 Ga. L. Rev. 265 (2016).

JUDICIAL DECISIONS 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.” Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910, 1980 Ga. App. LEXIS 2888 (1980). Liberal construction. - The Fair Business Practices Act is to be liberally construed and applied to promote its underlying purposes and policies, which are to protect consumers. Standish v. Hub

Motor Co., 149 Ga. App. 365, 254 S.E.2d 416, 1979 Ga. App. LEXIS 1850 (1979). Part applies to consumers market. - Legislature intended to limit scope of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to the consumer market. Its coverage is limited to activities in the conduct of consumer transactions and consumer acts or practices in trade or commerce. Larson v. Tandy Corp., 187 Ga. App. 893, 371 S.E.2d 663, 1988 Ga. App. LEXIS 1004 (1988).

SELLING/OTHER TRADE PRACTICES

Part applied to debt collection. - A debtor who was provided medical services could recover against a collection agency under the Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq. A consumer transaction occurred when the debtor was provided medical services, and collecting a debt incurred by a consumer for medical services could harm the general consuming public if conducted deceptively; moreover, the trial court found that the agency violated the Fair Debt Collection Practices Act (FDCPA), under 15 U.S.C. § 1692l(a), a violation of the FDCPA was a violation of the Federal Trade Commission Act (FTCA), and the FBPA was to be construed consistently with interpretations of the FTCA. 1st Nationwide Collection Agency, Inc. v. Werner, 288 Ga. App. 457, 654 S.E.2d 428, 2007 Ga. App. LEXIS 1222 (2007). To be subject to the Fair Business Practices Act, the allegedly offensive activity must have taken place “in the conduct of . . . consumer acts or practices,” i.e., within the context of consumer marketplace. State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8, 244 S.E.2d 15, 1978 Ga. App. LEXIS 1840, aff’d, 242 Ga. 294, 249 S.E.2d 87, 1978 Ga. LEXIS 1180 (1978); Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910, 1980 Ga. App. LEXIS 2888 (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, 1988 U.S. Dist. LEXIS 13210 (N.D. Ga. 1988). Even if a homeowner’s debt survived cancellation, a history of the debt was insufficient to prove a chain of valid written assignments from the original creditor to the assignee under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the Fair Business Practices Act, O.C.G.A. § 10-1-391 et seq. Arrow Fin. Servs., LLC v. Wright, 311 Ga. App. 319, 715 S.E.2d 725, 2011 Ga. App. LEXIS 676 (2011), cert. denied, No. S11C1924, 2012 Ga. LEXIS 51 (Ga. Jan. 9, 2012). 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, and 10-1-399, 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 plaintiff 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, 2008 U.S. Dist. LEXIS 88112 (N.D. Ga. 2008). Consumers’ lack of diligence not protected. - It is not the intent of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to protect consumers from their own lack of diligence and to render every written and ostensibly final sale of a product a potential source of liability for the seller. Heidt v. Potamkin Chrysler-Plymouth, Inc., 181 Ga. App. 903, 354 S.E.2d 440, 1987 Ga. App. LEXIS 1582 (1987). Part inapplicable to actions based on violation of HUD regulations. - Violation of Department of Housing and Urban Development (HUD) regulations by a mortgagee would not support a private action by the mortgagor against the mortgagee under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Krell v. National Mtg. Co., 214 Ga. App. 503, 448 S.E.2d 248, 1994 Ga. App. LEXIS 964 (1994), cert. denied, No. S94C1938, 1995 Ga. LEXIS 224 (Ga. Jan. 19, 1995). Federal Trade Commission Act standards apply. - Federal Trade Commission Act, 15 U.S.C. § 45, is expressly made the appropriate standard by which purpose and intent of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is to be effectuated, implemented, and construed. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910, 1980 Ga. App. LEXIS 2888 (1980). District court erred when the court denied a consumer’s motion for default judgment on the consumer’s claim that a debt collector violated Georgia’s Fair Business Practices Act of 1975 (FBPA), O.C.G.A. § 10-1-390 et seq., because the

consumer’s alleged debt was incurred during a consumer transaction for lawn care services, and the consumer pled facts in the consumer’s complaint sufficient to establish that the collector was part of the consumer credit and debt collection industry, and further, the collector’s conduct necessarily violated the FBPA when it violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692-92p, as the FBPA was to be interpreted in accordance with the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), pursuant to O.C.G.A. § 10-1-391(b), and for purpose of the exercise by the Commission of its functions and powers under the Federal Trade Commission Act, a violation of the FDCPA should be deemed an unfair or deceptive act or practice in violation of that Act pursuant to 15 U.S.C. § 1692l(a). Gilmore v. Account Mgmt., 357 Fed. Appx. 218, 2009 U.S. App. LEXIS 27601 (11th Cir. 2009). Consumer contract not void or voidable. - The purpose of the Fair is to protect consumers from unfair or deceptive practices in conduct of any trade or commerce, but it does not declare a consumer contract which violates it to be void or voidable so as to rescind the contract or otherwise set it aside. Little v. Paco Collection Servs., Inc., 156 Ga. App. 175, 274 S.E.2d 147, 1980 Ga. App. LEXIS 2934 (1980). Not every breach of contract deemed violation of part. - The Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is no panacea for the congenital ills of the marketplace and does not instantly convert every alleged breach of contract into a violation. DeLoach v. Foremost Ins. Co., 147 Ga. App. 124, 248 S.E.2d 193, 1978 Ga. App. LEXIS 2807 (1978). Unfair act or deceptive practice is prerequisite. - A prerequisite to stating a claim for relief under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is the commission of some unfair act or deceptive practice from which the Act is designed to protect the public. Castellana v. Conyers Toyota, Inc., 200 Ga. App. 161, 407 S.E.2d 64, 1991 Ga. App. LEXIS 799 (1991).

Private transactions. - O.C.G.A. Pt. 2, Art. 15, Ch. 1, T. 10 does not encompass suits based upon allegedly deceptive or unfair acts or practices which occur in an essentially private transaction. Waller v. Scheer, 175 Ga. App. 1, 332 S.E.2d 293, 1985 Ga. App. LEXIS 1998 (1985); Rivergate Corp. v. McIntosh, 205 Ga. App. 189, 421 S.E.2d 737, 1992 Ga. App. LEXIS 1107 (1992), cert. denied, No. S92C1449, 1992 Ga. LEXIS 880 (Ga. Oct. 16, 1992); Chancellor v. Gateway Lincoln-Mercury, 233 Ga. App. 38, 502 S.E.2d 799, 1998 Ga. App. LEXIS 885 (1998). Medium used and market impacted are determinative. - 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 the 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 Ga. App. LEXIS 2888 (1980). Businessperson and consumer in underlying transaction required. - 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 Ga. App. LEXIS 2888 (1980). Potential harm to consumer public required. - Unless it can be said that defendant’s actions had or have 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 Ga. App. LEXIS 2888 (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 general consuming public, the allegedly wrongful act of the defendant was not made in the

SELLING/OTHER TRADE PRACTICES

context of the consumer marketplace. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910, 1980 Ga. App. LEXIS 2888 (1980). Misrepresentation as to single parcel. - 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 the 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 Ga. App. LEXIS 2888 (1980). Private suit must implement part’s purpose of Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. - Purpose and intent of Ga. L. 1975, p. 376, § 1 et seq. is protection of public, and a private suit under Ga. L. 1975, p. 376, § 10 may be brought only if it implements that underlying purpose and intent. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910, 1980 Ga. App. LEXIS 2888 (1980). Notice under Fair Business Practices Act. - A 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 Ga. App. LEXIS 684 (2008). No remedy for private wrongs not affecting consumer public. - Stated

intent of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is to protect public from acts and practices which are injurious to consumers, not to provide additional remedy for private wrongs which do not and could not affect consuming public generally. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910, 1980 Ga. App. LEXIS 2888 (1980). Ga. L. 1975, p. 376, § 10, providing for private right of action, was enacted to give effect to intent of General Assembly that such practices be swiftly stopped and is part of the 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 it does not create an additional remedy for redress of the private wrongs occurring outside the context of the public consumer marketplace. Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910, 1980 Ga. App. LEXIS 2888 (1980). No deceptive act. - Claim under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., was subject to summary judgment because the disclaimers, indicating that no refunds would be given and the organization was not responsible for loss related to non-performance, were sufficiently prominent and clear, and were clearly delineated. The bidder had the opportunity to read the policy containing the no refund clause before the bidder attended the auction and the opportunity to read the buyer’s agreement before the bidder signed. Wright v. Safari Club Int’l, Inc., 322 Ga. App. 486, 745 S.E.2d 730, 2013 Ga. App. LEXIS 550 (2013). Direct-suit wrongdoer must have used channels of consumer commerce. - Legislature has evidenced a clear intent to limit scope of the Fair Business Practices Act to the consumer market, and to be subject to direct suit under the Act, an alleged offender must have done some volitional act to avail oneself of channels of consumer commerce. State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8, 244 S.E.2d 15, 1978 Ga. App. LEXIS 1840, aff’d, 242 Ga. 294, 249 S.E.2d 87, 1978 Ga. LEXIS 1180 (1978); Zeeman v. Black, 156 Ga. App. 82, 273 S.E.2d 910, 1980 Ga. App. LEXIS 2888 (1980).

OPINIONS OF THE ATTORNEY GENERAL Enforcement of Olympic Price Gouging Act. - The Office of Consumer Affairs has jurisdiction under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to address violations of

the former Olympic Price Gouging Act, former O.C.G.A. § 43-21-16, arising out of direct transactions between “hotel operators” and consumers. 1995 Op. Att’y Gen. No. 95-32.

RESEARCH REFERENCES Am. Jur. 2d. 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, §§ 1085, 1104. C.J.S. 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, §§ 434 et seq., 445 et seq.

ALR. Criminal liability for misappropriation of trade secret, 84 A.L.R.3d 967. Enforceability of trial period plans (TPP) under the home affordable modification program (HAMP), 88 A.L.R. Fed. 2d 331.