Friedlander v. PDK Labs, Inc. , 89 F.3d 747 ( 1996 )

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 26, 1996.
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:
In our prior opinion in this case published as Friedlander v.
PDK Labs, Inc., 59 F.3d 1131 (11th Cir.1995), we stated:
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....
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).
[T]he 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 customers. 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.... Thus, whether a FBPA plaintiff
must be an individual member of the consuming public seems to
*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
be an unsettled question of Georgia law.
Friedlander, 59 F.3d 1131, 1132-33 (11th Cir.1995).
After determining this case involved an unsettled question of
Georgia law, we certified 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?
Friedlander, 59 F.3d 1131, 1133 (11th Cir.1995).
The Supreme Court of Georgia has now answered the certified
question in the negative stating:
A person who suffers injury or damages, or whose business
or property has been injured or damaged, as a result of
consumer acts or practices may bring an action under the FBPA
"individually, but not in a representative capacity...." OCGA
§ 10-1-399(a). A suit predicated upon an alleged violation of
the FBPA must be brought in the plaintiff's "capacity as an
individual member of the consuming public...." Zeeman v.
Black, 156 Ga.App. 82, 84 (273 SE2d 910) (1980). See also
Gross v. Ideal Pool Corp., 181 Ga.App. 483, 484 (352 SE2d 806)
(1987). A suit is not brought in the capacity of an
individual member of the consuming public when the plaintiff's
only allegation of injurious consumer act or practice relates
to representations made by his competitor in the marketing of
competing products to the general consuming public. Of
course, if a business, as a consumer, sustains damage, it may
bring suit under OCGA § 10-1-399(a). OCGA §§ 10-1-391(a), 10-
1-392(7). However, we are not empowered to expand the
coverage of the FBPA to provide a cause of action to
non-consumers against their competitors. See State of Ga. v.
Meredith Chevrolet, Inc., supra [145 Ga.App. 8] at 13-14 [244
S.E.2d 15 (1978) ].
Friedlander v. PDK, Labs, Inc., 266 Ga. 180, 465 S.E.2d 670 (1996).
Accordingly, we affirm the district court's judgment granting
PDK's motion to dismiss since Friedlander cannot maintain a cause
of action under the FBPA.
AFFIRMED.