Nrs: Chapter 598A - Unfair Trade Practices

Link to law: https://www.leg.state.nv.us/NRS/NRS-598A.html
Published: 2015

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[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)