[Rev. 11/21/2013 12:31:07
PM--2013]
CHAPTER 598A - UNFAIR TRADE PRACTICES
NRS 598A.010 Short
title.
NRS 598A.020 Definitions.
NRS 598A.030 Legislative
declaration.
NRS 598A.040 Applicability
of chapter.
NRS 598A.050 Construction
of chapter.
NRS 598A.060 Prohibited
acts.
NRS 598A.070 Duties
of Attorney General and district attorneys.
NRS 598A.080 Cooperation
with Federal Government and other states.
NRS 598A.090 Jurisdiction
of district courts.
NRS 598A.100 Investigative
demands: Issuance by Attorney General; service; contents; privileged
information.
NRS 598A.110 Investigative
demands: Confidentiality.
NRS 598A.120 Investigative
demands: Order requiring compliance; penalty for failure to obey.
NRS 598A.130 Investigative
demands: Immunity from criminal prosecution.
NRS 598A.140 Investigative
demands: Order compelling compliance after immunity granted; penalty for
failure to obey.
NRS 598A.150 Investigative
demands: Duty of public officers and employees to furnish information and
assistance.
NRS 598A.160 Civil
action by Attorney General for damages and other relief; proof of damages;
procedure for distributing recovery.
NRS 598A.170 Civil
penalty in action brought by Attorney General for engaging in prohibited
activity.
NRS 598A.180 Suit
by Attorney General against domestic corporation or association.
NRS 598A.190 Suit
by Attorney General against foreign corporation or association.
NRS 598A.200 Action
for injury to public business or property: Treble damages; attorney’s fees and
costs.
NRS 598A.210 Private
action for injury to business or property: Injunctive relief; treble damages;
attorney’s fees and costs; copy of complaint mailed to Attorney General.
NRS 598A.220 Limitation
of actions.
NRS 598A.230 Liability
of legal or commercial entity for acts of its officers, directors and agents.
NRS 598A.240 Judgments
and decrees as prima facie evidence.
NRS 598A.250 Remedies
cumulative.
NRS 598A.260 Deposit
of money obtained by Attorney General as awards, damages or penalties; Attorney
General’s Special Fund.
NRS 598A.280 Criminal
penalty.
_________
_________
NRS 598A.010 Short title. This
chapter may be cited as the Nevada Unfair Trade Practice Act.
(Added to NRS by 1975, 944)
NRS 598A.020 Definitions. When
used in this chapter, unless the context otherwise requires:
1. “Commodity” means any goods,
merchandise, wares, produce, chose in action, patents, trademarks, articles of
commerce, or other tangible or intangible property, real, personal, or mixed,
for use, consumption, enjoyment or resale.
2. “Service” means any activity performed
or benefit conferred for the purpose of economic gain.
3. “Trade or commerce” includes all
economic activity involving or relating to any commodity or service.
(Added to NRS by 1975, 945; A 1985, 532)
NRS 598A.030 Legislative declaration.
1. The Legislature hereby finds that:
(a) The free, open and competitive production and
sale of commodities and services is necessary to the economic well-being of the
citizens of the State of Nevada.
(b) The acts of persons which result in the
restraint of trade and commerce:
(1) Act to destroy free and open
competition in our market system and, thereby, result in increased costs and
the deterioration in quality of commodities and services to the citizens of the
State of Nevada.
(2) Result in economic hardships in the
form of increased consumer prices and increased taxes upon many citizens of the
State of Nevada least able to bear such increased costs.
2. It is the policy of this state and the
purpose of this chapter to:
(a) Prohibit acts in restraint of trade or
commerce, except where properly regulated as provided by law.
(b) Preserve and protect the free, open and
competitive nature of our market system.
(c) Penalize all persons engaged in such
anticompetitive practices to the full extent allowed by law, in accordance with
the penalties provided herein.
(Added to NRS by 1975, 944)
NRS 598A.040 Applicability of chapter. The
provisions of this chapter do not apply to:
1. Any labor, agricultural or horticultural
organizations organized for the purpose of self-help and not for profit to
itself nor to individual members thereof, while lawfully carrying out its
legitimate objects.
2. Bona fide religious and charitable
activities of any nonprofit corporation, trust or organization established
exclusively for religious or charitable purposes.
3. Conduct which is expressly authorized,
regulated or approved by:
(a) A statute of this State or of the United
States;
(b) An ordinance of any city or county of this
State, except for ordinances relating to video service providers; or
(c) An administrative agency of this State or of
the United States or of a city or county of this State, having jurisdiction of
the subject matter.
4. Conduct or agreements relating to rates,
fares, classifications, divisions, allowances or charges, including charges
between carriers and compensation paid or received for the use of facilities
and equipment, that are authorized, regulated or approved by the Nevada
Transportation Authority pursuant to chapter 706
of NRS.
5. Restrictive covenants:
(a) Which are part of a contract of sale for a
business and which bar the seller of the business from competing with the
purchaser of the business sold within a reasonable market area for a reasonable
period of time; or
(b) Which are part of a commercial shopping
center lease and which bar the parties from permitting or engaging in the
furnishing of certain services or the sale of certain commodities within the
commercial shopping center where such leased premises are located.
(Added to NRS by 1975, 946; A 1983, 2011; 1997, 2018; 2007, 1393)
NRS 598A.050 Construction of chapter. The
provisions of this chapter shall be construed in harmony with prevailing
judicial interpretations of the federal antitrust statutes.
(Added to NRS by 1975, 951)
NRS 598A.060 Prohibited acts.
1. Every activity enumerated in this
subsection constitutes a contract, combination or conspiracy in restraint of
trade, and it is unlawful to conduct any part of any such activity in this State:
(a) Price fixing, which consists of raising,
depressing, fixing, pegging or stabilizing the price of any commodity or
service, and which includes, but is not limited to:
(1) Agreements among competitors to
depress prices at which they will buy essential raw material for the end
product.
(2) Agreements to establish prices for
commodities or services.
(3) Agreements to establish uniform
discounts, or to eliminate discounts.
(4) Agreements between manufacturers to
price a premium commodity a specified amount above inferior commodities.
(5) Agreements not to sell below cost.
(6) Agreements to establish uniform
trade-in allowances.
(7) Establishment of uniform cost surveys.
(8) Establishment of minimum markup
percentages.
(9) Establishment of single or multiple
basing point systems for determining the delivered price of commodities.
(10) Agreements not to advertise prices.
(11) Agreements among competitors to fix
uniform list prices as a place to start bargaining.
(12) Bid rigging, including the misuse of
bid depositories, foreclosures of competitive activity for a period of time,
rotation of jobs among competitors, submission of identical bids, and
submission of complementary bids not intended to secure acceptance by the
customer.
(13) Agreements to discontinue a product,
or agreements with anyone engaged in the manufacture of competitive lines to
limit size, styles or quantities of items comprising the lines.
(14) Agreements to restrict volume of
production.
(b) Division of markets, consisting of agreements
between competitors to divide territories and to refrain from soliciting or
selling in certain areas.
(c) Allocation of customers, consisting of
agreements not to sell to specified customers of a competitor.
(d) Tying arrangements, consisting of contracts
in which the seller or lessor conditions the sale or lease of commodities or
services on the purchase or leasing of another commodity or service.
(e) Monopolization of trade or commerce in this
State, including, without limitation, attempting to monopolize or otherwise
combining or conspiring to monopolize trade or commerce in this State.
(f) Except as otherwise provided in subsection 2,
consolidation, conversion, merger, acquisition of shares of stock or other
equity interest, directly or indirectly, of another person engaged in commerce
in this State or the acquisition of any assets of another person engaged in
commerce in this State that may:
(1) Result in the monopolization of trade
or commerce in this State or would further any attempt to monopolize trade or
commerce in this State; or
(2) Substantially lessen competition or be
in restraint of trade.
2. The provisions of paragraph (f) of
subsection 1 do not:
(a) Apply to a person who, solely for an
investment purpose, purchases stock or other equity interest or assets of
another person if the purchaser does not use his or her acquisition to bring
about or attempt to bring about the substantial lessening of competition in
this State.
(b) Prevent a person who is engaged in commerce
in this State from forming a subsidiary corporation or other business
organization and owning and holding all or part of the stock or equity interest
of that corporation or organization.
(Added to NRS by 1975, 945; A 1981, 1238; 2001, 483)
NRS 598A.070 Duties of Attorney General and district attorneys.
1. The Attorney General shall:
(a) Enforce the provisions of this chapter.
(b) Investigate suspected violations of the
provisions of this chapter.
(c) Institute proceedings on behalf of the State,
its agencies, political subdivisions, districts or municipal corporations, or
as parens patriae of the persons residing in the State for:
(1) Injunctive relief to prevent and
restrain a violation of any provision of this chapter.
(2) Civil penalties for violations of the
provisions of this chapter.
(3) Criminal penalties for violations of
the provisions of this chapter.
2. Any district attorney in this State,
with the permission or at the direction of the Attorney General, shall
institute proceedings in the name of the State of Nevada for any violation of
the provisions of this chapter.
(Added to NRS by 1975, 946; A 1989, 305)
NRS 598A.080 Cooperation with Federal Government and other states. The Attorney General may cooperate with and
coordinate the enforcement of the provisions of this chapter with officials of
the Federal Government and the several states, including but not limited to the
sharing of information and evidence obtained in accordance with NRS 598A.100.
(Added to NRS by 1975, 951)
NRS 598A.090 Jurisdiction of district courts. The
district courts have jurisdiction over actions and proceedings for violations
of the provisions of this chapter and may:
1. Issue temporary restraining orders and
injunctions to prevent and restrain violations of the provisions of this
chapter.
2. Impose civil and criminal penalties and
award damages as provided in this chapter.
3. Grant mandatory injunctions reasonably
necessary to eliminate practices which are unlawful under the provisions of
this chapter.
(Added to NRS by 1975, 947)
NRS 598A.100 Investigative demands: Issuance by Attorney General; service;
contents; privileged information.
1. Whenever the Attorney General has
reasonable cause to believe that any person has information or is in
possession, custody or control of any document or other tangible evidence
relevant to an investigation for violation of any provision of this chapter, he
or she may issue in writing and cause to be served upon that person, before
bringing any action concerning such violation or suspected violation, an
investigative demand to:
(a) Appear and be examined under oath;
(b) Answer written interrogatories under oath; or
(c) Produce the document or other tangible
evidence for inspection and copying.
2. The demand shall:
(a) Be served upon the person in the manner
required for service of process in this state or by certified mail with return
receipt requested.
(b) State the section or sections of this
chapter, alleged to have been violated and the general nature of the
investigation.
(c) Describe the class or classes of documents or
other tangible evidence with sufficient definiteness to permit them to be
fairly identified.
(d) Contain a copy of the written
interrogatories, if any.
(e) Prescribe a time at which the person must
appear to testify, within which to answer the written interrogatories or
produce the documents or other tangible evidence, but inspection of documentary
material or other tangible evidence may be carried out at the place where the
documents or evidence are located when the production of the material would be burdensome
to the person investigated or where such visitorial investigation would be
preferred by the Attorney General.
(f) Specify a place for the taking of testimony
or for production of evidence and identify the person who is to take custody of
the document or other tangible evidence for the purposes of inspection or
copying.
3. A written investigative demand shall
not require the submission of any privileged documentary material or testimony.
(Added to NRS by 1975, 947)
NRS 598A.110 Investigative demands: Confidentiality. Any
procedure, testimony taken, document or other tangible evidence produced, or
answer made under NRS 598A.100 shall be kept
confidential by the Attorney General prior to the institution of an action
brought under this chapter for the alleged violation of the provisions of this
chapter under investigation, unless:
1. Confidentiality is waived by the person
upon whom the written investigative demand is made or pursuant to NRS 239.0115;
2. Disclosure is authorized by the
district court; or
3. Disclosure is made pursuant to NRS 598A.080.
(Added to NRS by 1975, 947; A 2007, 2121)
NRS 598A.120 Investigative demands: Order requiring compliance; penalty for
failure to obey. In case of
refusal to comply in whole or in part with the written investigative demand by
any person to whom it is directed, any district court of the State of Nevada,
upon application of the Attorney General, may issue an order requiring
compliance. Failure to obey the order of the court may be punished by the court
as a contempt of court.
(Added to NRS by 1975, 948)
NRS 598A.130 Investigative demands: Immunity from criminal prosecution.
1. If a natural person refuses to make
written answer, testify or produce evidence pursuant to a written investigative
demand on the ground he or she may be incriminated thereby, any district court
of the State of Nevada, upon the ex parte application of the Attorney General
may order, in the name of the State of Nevada, that the natural person be
released from all liability to be prosecuted or punished on account of any
testimony or other evidence he or she may be required to produce.
2. Except as provided in subsection 3,
such order of immunity shall forever be a bar to prosecution against the
witness for any offense shown in whole or in part by such testimony or other
evidence.
3. Immunity obtained pursuant to this
section shall not:
(a) Exempt any person from prosecution for
perjury committed in the giving of such testimony; or
(b) Prevent the Attorney General or a civil
litigant from instituting civil proceedings against any person who violates the
provisions of this chapter.
(Added to NRS by 1975, 948)
NRS 598A.140 Investigative demands: Order compelling compliance after
immunity granted; penalty for failure to obey. If
any person refuses to testify, produce evidence or make answer after being
granted immunity from prosecution as provided by NRS
598A.130, the Attorney General may apply to any district court for an order
compelling such person to testify, produce evidence or make answer. Any person
who disobeys such order of the court may be held in contempt of court.
(Added to NRS by 1975, 948)
NRS 598A.150 Investigative demands: Duty of public officers and employees to
furnish information and assistance. It
is the duty of all public officers, their deputies, assistants, clerks,
subordinates or employees, to render and furnish to the Attorney General, his
or her deputy or other designated representative, when so requested, all the
information and assistance in their possession or within their power relating
to investigations carried out under the provisions of this chapter.
(Added to NRS by 1975, 948)
NRS 598A.160 Civil action by Attorney General for damages and other relief;
proof of damages; procedure for distributing recovery.
1. The Attorney General may bring a civil
action for any violation of the provisions of this chapter in the name of the
State of Nevada and is entitled to recover damages and secure other relief
provided by the provisions of this chapter:
(a) As parens patriae of the persons residing in
this State, with respect to damages sustained directly or indirectly by such
persons, or, alternatively, if the court finds in its discretion that the
interests of justice so require, as a representative of a class or classes
consisting of persons residing in this State who have been damaged directly or
indirectly; or
(b) As parens patriae, with respect to direct or
indirect damages to the general economy of the State of Nevada or any political
subdivision thereof.
2. In any action under this section, this
State:
(a) May recover the aggregate damage sustained by
the persons on whose behalf this State sues, without separately proving the
individual claims of each such person. Proof of such damages must be based on:
(1) Statistical or sampling methods;
(2) The pro rata allocation of illegal
overcharges of sales occurring within the State of Nevada; or
(3) Such other reasonable system of
estimating aggregate damages as the court may permit.
(b) Shall distribute, allocate or otherwise pay
the amounts so recovered in accordance with state law, or in the absence of any
applicable state law, as the district court may authorize, subject to the
requirement that any distribution procedure adopted afford each person on whose
behalf this State sues a reasonable opportunity individually to secure the pro
rata portion of such recovery attributable to his, her or its respective claims
for damages, less litigation and administrative costs, including attorney fees,
before any of the recovery is escheated.
(Added to NRS by 1975, 948; A 1999, 945)
NRS 598A.170 Civil penalty in action brought by Attorney General for engaging
in prohibited activity. Persons
who engage in activities prohibited by this chapter are civilly liable, at the
suit of the Attorney General, in an amount not to exceed 5 percent of the gross
income realized by the sale of commodities or services sold by such persons in
this state in each year in which the prohibited activities occurred.
(Added to NRS by 1975, 949)
NRS 598A.180 Suit by Attorney General against domestic corporation or
association.
1. Upon a violation of the provisions of
this chapter by any corporation or association organized under the laws of this
state, or upon failure to comply with the terms of the final judgment or decree
rendered by a court of this state for a violation of the provisions of this
chapter, or to comply with a consent judgment or decree rendered by a court of
this state concerning an alleged violation of the provisions of this chapter,
the Attorney General may institute a suit in any district court for:
(a) The forfeiture of charter rights, franchises,
privileges and powers, and for the dissolution of the corporation or
association; or
(b) The suspension of the privilege to conduct
business within the State.
2. The district court, in its discretion
and with due consideration of all relevant factors, including relevant public
interests and competitive and economic factors, may order the dissolution,
suspend the privilege to conduct business for a specific period, deny such
relief or provide other appropriate relief.
(Added to NRS by 1975, 949)
NRS 598A.190 Suit by Attorney General against foreign corporation or
association.
1. Upon a violation of the provisions of
this chapter by a foreign corporation or association exercising the privilege
of conducting business within this state, or upon a failure to comply with the
terms of the final judgment or decree rendered by a court of this state in any
proceeding under the provisions of this chapter, or to comply with a consent
judgment or decree rendered by a court of this state concerning an alleged
violation of the provisions of this chapter, the Attorney General may institute
a suit in any district court for the revocation or suspension of franchises,
privileges and powers connected with doing business within the State.
2. The district court, in its discretion
and with due consideration of all relevant factors, including relevant public
interests and competitive and economic factors, may order the revocation or
suspension of the privilege to conduct business for a specified period, deny
relief or provide other appropriate relief. A revocation shall have the same
effect as a failure to qualify to do business in this state.
(Added to NRS by 1975, 949)
NRS 598A.200 Action for injury to public business or property: Treble damages;
attorney’s fees and costs. The
State, any district, municipal corporation, agency or other political
subdivision of the State injured in its business or property by reason of a
violation of the provisions of this chapter, shall recover treble damages,
together with reasonable attorney fees and costs.
(Added to NRS by 1975, 950)
NRS 598A.210 Private action for injury to business or property: Injunctive
relief; treble damages; attorney’s fees and costs; copy of complaint mailed to
Attorney General.
1. Any person threatened with injury or
damage to his or her business or property by reason of a violation of any
provision of this chapter, may institute a civil action or proceeding for
injunctive relief. If the court issues a permanent injunction, the plaintiff
shall recover reasonable attorney fees, together with costs, as determined by
the court.
2. Any person injured or damaged directly
or indirectly in his or her business or property by reason of a violation of
the provisions of this chapter may institute a civil action and shall recover
treble damages, together with reasonable attorney fees and costs.
3. Any person commencing an action for any
violation of the provisions of this chapter shall, simultaneously with the
filing of the complaint with the court, mail a copy of the complaint to the
Attorney General.
(Added to NRS by 1975, 950; A 1999, 946)
NRS 598A.220 Limitation of actions.
1. An action brought under NRS 598A.170 or 598A.200
is barred if it is not commenced within 4 years after the cause of action
accrues, or if the cause of action is based upon a conspiracy in violation of
this chapter, within 4 years after the plaintiff discovered, or by the exercise
of reasonable diligence, should have discovered the facts relied upon for proof
of the conspiracy.
2. An action brought under NRS 598A.160 or 598A.210
is barred if it is not commenced:
(a) Within 4 years after the cause of action
accrues, or if the cause of action is based upon a conspiracy in violation of
this chapter, within 4 years after the plaintiff discovered, or by the exercise
of reasonable diligence, should have discovered the facts relied upon for proof
of the conspiracy; or
(b) Within 1 year after the conclusion of any
action or proceeding brought under NRS 598A.170 or
598A.200 commenced within or before the running of
the 4-year period as provided in paragraph (a) and which is based in whole or
in part on any matter complained of in the action for damages.
3. For the purpose of this section, a
cause of action for a continuing violation arises at any time during the period
of such violation.
(Added to NRS by 1975, 950)
NRS 598A.230 Liability of legal or commercial entity for acts of its
officers, directors and agents. A
corporation, association, firm, partnership, proprietorship or any other legal
or commercial entity is liable under this chapter for the acts of its officers,
directors, representatives or agents, acting within the scope of their actual
or apparent authority. Proof of the acts of any such officer, director,
representative or agent shall constitute prima facie proof as being the acts of
the corporation, association, firm, partnership or proprietorship itself.
(Added to NRS by 1975, 949)
NRS 598A.240 Judgments and decrees as prima facie evidence. Any final judgment or decree, other than a
stipulation or consent decree approved by a district court before any testimony
has been taken, rendered in any action or proceeding brought by the Attorney
General or any district attorney with the permission or at the direction of the
Attorney General, shall be prima facie evidence in any action brought under
this chapter as to all matters with respect to which the judgment or decree
would be an estoppel between the parties to the suit.
(Added to NRS by 1975, 950)
NRS 598A.250 Remedies cumulative. The
remedies afforded by this chapter are cumulative.
(Added to NRS by 1975, 951)
NRS 598A.260 Deposit of money obtained by Attorney General as awards, damages
or penalties; Attorney General’s Special Fund.
1. All money obtained as awards, damages
or civil penalties for the State of Nevada and its agencies by the Attorney
General as a result of enforcement of statutes pertaining to unfair trade
practices, whether by final judgment, settlement or otherwise, must be
deposited in the State Treasury as follows:
(a) All attorney’s fees and costs and 50 percent
of all recoveries for credit to the Attorney General’s Special Fund.
(b) The balance of the recoveries for credit to
the State General Fund.
2. Money deposited in the State Treasury
for credit to the Attorney General’s Special Fund pursuant to subsection 1 must
be used for payment of the expenses of enforcing the statutes pertaining to
unfair trade practices and NRS 228.500
to 228.640, inclusive. Those expenses
which are in excess of the amount available in the Fund must be paid out of the
legislative appropriation for the support of the Office of Attorney General.
3. On June 30 of each fiscal year, any
amount in excess of $450,000 in the Attorney General’s Special Fund of the
money collected pursuant to subsection 1 reverts to the State General Fund.
4. The balance of the money in the
Attorney General’s Special Fund that is collected pursuant to subsection 1 must
not exceed $500,000. If money deposited in the State Treasury for credit to the
Attorney General’s Special Fund pursuant to subsection 1 would cause that
balance to exceed $500,000 if credited to the Fund, the amount of the deposit
which would cause the balance to exceed $500,000 immediately reverts to the
State General Fund.
(Added to NRS by 1975, 951; A 1979, 119; 1999, 946; 2003, 2877)
NRS 598A.280 Criminal penalty. A
person who conspires to, or does, violate any of the provisions of this chapter
is guilty of a category D felony and shall be punished as provided in NRS 193.130.
(Added to NRS by 1975, 950; A 1995, 1307)
