Question: Dear Good Georgia Lawyer,
Recently my husband purchased a set of used mechanical engines from a dealer who advertised the engines had "never been in previous wrecks." The dealer also never provided us with any implied "as is" warranty disclaimer until after we bought the engines. Shortly after buying the engines, we learned that they had been salvaged from previous wrecks. What are our legal rights under the Georgia Fair Business Practices Act?
Answer: Defendants engaged in unfair and/or deceptive business practices which violated the Georgia Fair Business Practices Act O.C.G.A. §10-1-390 et seq by failing to provide the implied warranty disclaimer prior to this consumer transaction. Defendant further engaged in unfair and/or deceptive business practices by expressly warranting that the engines "had never been in wrecks."
Notably, the Georgia Office of Consumer Affairs Auto Advertising and Sales Practices Guide explains that if an advertisement made implied or express representations that have the capacity, effect, or tendency of misleading consumers without certain qualifying information, the failure to disclose the information is a violation of the Fair Business Practices Act.
Furthermore, qualifying information must always be clearly and conspicuously disclosed, meaning that it is presented in a reasonably understandable format. Consumer buyers should not have to search for terms and conditions. Advertisements will be considered deceptive if necessary disclosures or disclaimers are not made, if facts that are material are not stated, and if disclaimers/disclosures are inconspicuous. See, e.g., Energy Four, Inc. v. Dornier Medical Sys., Inc., 765 F. Supp. 724, 731-733 (D. Ga. 1991).
What is an inconspicuous representation? If consumers need to search for the disclaimer in fine print that they can barely read or on the opposite side of an advertisement, this is an example of inconspicuous.
Examples of deceptive disclosures:
1. Asterisks and footnotes that make they buyer look
to another place in an advertisement;
2. The use of any print size so small as to be not easily readable. Any type
size 10 point or larger is considered easily reasonable.
When buyers justifiably rely on sellers knowing, false advertising, false representations and inducement tactics, a violation occurs. When a seller commits unfair and/or deceptive practices, they buyer is entitled to both general and exemplary damages, as well as being entitled to treble damages because of the intentional violations under the Georgia Fair Business Practices Act. See Conseco Finance Servicing Corporation v. Hill, 252 Ga. App 774 (2001).
A written notice giving a thirty day demand to the seller, which under Georgia law is to be liberally construed, must be timely sent prior to the filing of a Fair Business Practices Act violation. See Lynas v. Williams, 216 Ga. App. 434, 435 (1995).
Contact Williams Oinonen LLC for more information on the Georgia Fair Business Practices Act at 404-654-0288.