2005 Nevada Revised Statutes - Chapter 598A — Unfair Trade Practices

CHAPTER 598A - UNFAIR TRADE PRACTICES

NRS 598A.010 Shorttitle.

NRS 598A.020 Definitions.

NRS 598A.030 Legislativedeclaration.

NRS 598A.040 Applicabilityof chapter.

NRS 598A.050 Constructionof chapter.

NRS 598A.060 Prohibitedacts.

NRS 598A.070 Dutiesof Attorney General and district attorneys.

NRS 598A.080 Cooperationwith Federal Government and other states.

NRS 598A.090 Jurisdictionof district courts.

NRS 598A.100 Investigativedemands: Issuance by Attorney General; service; contents; privilegedinformation.

NRS 598A.110 Investigativedemands: Confidentiality.

NRS 598A.120 Investigativedemands: Order requiring compliance; penalty for failure to obey.

NRS 598A.130 Investigativedemands: Immunity from criminal prosecution.

NRS 598A.140 Investigativedemands: Order compelling compliance after immunity granted; penalty for failureto obey.

NRS 598A.150 Investigativedemands: Duty of public officers and employees to furnish information andassistance.

NRS 598A.160 Civilaction by Attorney General for damages and other relief; proof of damages;procedure for distributing recovery.

NRS 598A.170 Civilpenalty in action brought by Attorney General for engaging in prohibitedactivity.

NRS 598A.180 Suitby Attorney General against domestic corporation or association.

NRS 598A.190 Suitby Attorney General against foreign corporation or association.

NRS 598A.200 Actionfor injury to public business or property: Treble damages; attorneys fees andcosts.

NRS 598A.210 Privateaction for injury to business or property: Injunctive relief; treble damages;attorneys fees and costs; copy of complaint mailed to Attorney General.

NRS 598A.220 Limitationof actions.

NRS 598A.230 Liabilityof legal or commercial entity for acts of its officers, directors and agents.

NRS 598A.240 Judgmentsand decrees as prima facie evidence.

NRS 598A.250 Remediescumulative.

NRS 598A.260 Depositof money obtained by Attorney General as awards, damages or penalties; AttorneyGenerals Special Fund.

NRS 598A.280 Criminalpenalty.

_________

NRS 598A.010 Shorttitle. This chapter may be cited as the NevadaUnfair Trade Practice Act.

(Added to NRS by 1975, 944)

NRS 598A.020 Definitions. When used in this chapter, unless the context otherwiserequires:

1. Commodity means any goods, merchandise, wares,produce, chose in action, patents, trademarks, articles of commerce, or othertangible or intangible property, real, personal, or mixed, for use,consumption, enjoyment or resale.

2. Service means any activity performed or benefitconferred for the purpose of economic gain.

3. Trade or commerce includes all economic activityinvolving or relating to any commodity or service.

(Added to NRS by 1975, 945; A 1985, 532)

NRS 598A.030 Legislativedeclaration.

1. The Legislature hereby finds that:

(a) The free, open and competitive production and saleof commodities and services is necessary to the economic well-being of thecitizens of the State of Nevada.

(b) The acts of persons which result in the restraintof trade and commerce:

(1) Act to destroy free and open competition inour market system and, thereby, result in increased costs and the deteriorationin quality of commodities and services to the citizens of the State of Nevada.

(2) Result in economic hardships in the form ofincreased consumer prices and increased taxes upon many citizens of the Stateof Nevada least able to bear such increased costs.

2. It is the policy of this state and the purpose ofthis chapter to:

(a) Prohibit acts in restraint of trade or commerce, exceptwhere properly regulated as provided by law.

(b) Preserve and protect the free, open and competitivenature of our market system.

(c) Penalize all persons engaged in suchanticompetitive practices to the full extent allowed by law, in accordance withthe penalties provided herein.

(Added to NRS by 1975, 944)

NRS 598A.040 Applicabilityof chapter. The provisions of this chapter donot apply to:

1. Any labor, agricultural or horticulturalorganizations organized for the purpose of self-help and not for profit toitself nor to individual members thereof, while lawfully carrying out itslegitimate objects.

2. Bona fide religious and charitable activities ofany nonprofit corporation, trust or organization established exclusively forreligious or charitable purposes.

3. Conduct which is expressly authorized, regulated orapproved 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 community antenna television companies; 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 subjectmatter.

4. Conduct or agreements relating to rates, fares,classifications, divisions, allowances or charges, including charges betweencarriers and compensation paid or received for the use of facilities andequipment, that are authorized, regulated or approved by the TransportationServices Authority pursuant to chapter 706 ofNRS.

5. Restrictive covenants:

(a) Which are part of a contract of sale for a businessand which bar the seller of the business from competing with the purchaser ofthe business sold within a reasonable market area for a reasonable period oftime; or

(b) Which are part of a commercial shopping centerlease and which bar the parties from permitting or engaging in the furnishingof certain services or the sale of certain commodities within the commercialshopping center where such leased premises are located.

(Added to NRS by 1975, 946; A 1983, 2011; 1997, 2018)

NRS 598A.050 Constructionof chapter. The provisions of this chaptershall be construed in harmony with prevailing judicial interpretations of thefederal antitrust statutes.

(Added to NRS by 1975, 951)

NRS 598A.060 Prohibitedacts.

1. Every activity enumerated in this subsectionconstitutes a contract, combination or conspiracy in restraint of trade, and itis 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 orservice, and which includes, but is not limited to:

(1) Agreements among competitors to depressprices at which they will buy essential raw material for the end product.

(2) Agreements to establish prices for commoditiesor services.

(3) Agreements to establish uniform discounts,or to eliminate discounts.

(4) Agreements between manufacturers to price apremium commodity a specified amount above inferior commodities.

(5) Agreements not to sell below cost.

(6) Agreements to establish uniform trade-inallowances.

(7) Establishment of uniform cost surveys.

(8) Establishment of minimum markup percentages.

(9) Establishment of single or multiple basingpoint systems for determining the delivered price of commodities.

(10) Agreements not to advertise prices.

(11) Agreements among competitors to fix uniformlist prices as a place to start bargaining.

(12) Bid rigging, including the misuse of biddepositories, foreclosures of competitive activity for a period of time,rotation of jobs among competitors, submission of identical bids, andsubmission of complementary bids not intended to secure acceptance by thecustomer.

(13) Agreements to discontinue a product, oragreements with anyone engaged in the manufacture of competitive lines to limitsize, styles or quantities of items comprising the lines.

(14) Agreements to restrict volume ofproduction.

(b) Division of markets, consisting of agreementsbetween competitors to divide territories and to refrain from soliciting orselling in certain areas.

(c) Allocation of customers, consisting of agreementsnot to sell to specified customers of a competitor.

(d) Tying arrangements, consisting of contracts inwhich the seller or lessor conditions the sale or lease of commodities orservices 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 combiningor 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 otherequity interest, directly or indirectly, of another person engaged in commercein this state or the acquisition of any assets of another person engaged incommerce in this state that may:

(1) Result in the monopolization of trade orcommerce in this state or would further any attempt to monopolize trade orcommerce in this state; or

(2) Substantially lessen competition or be inrestraint of trade.

2. The provisions of paragraph (f) of subsection 1 donot:

(a) Apply to a person who, solely for an investmentpurpose, purchases stock or other equity interest or assets of another personif the purchaser does not use his acquisition to bring about or attempt tobring about the substantial lessening of competition in this state.

(b) Prevent a person who is engaged in commerce in thisstate from forming a subsidiary corporation or other business organization andowning and holding all or part of the stock or equity interest of thatcorporation or organization.

(Added to NRS by 1975, 945; A 1981, 1238; 2001, 483)

NRS 598A.070 Dutiesof Attorney General and district attorneys.

1. The Attorney General shall:

(a) Enforce the provisions of this chapter.

(b) Investigate suspected violations of the provisionsof this chapter.

(c) Institute proceedings on behalf of the State, itsagencies, political subdivisions, districts or municipal corporations, or asparens patriae of the persons residing in the State for:

(1) Injunctive relief to prevent and restrain aviolation of any provision of this chapter.

(2) Civil penalties for violations of theprovisions of this chapter.

(3) Criminal penalties for violations of theprovisions of this chapter.

2. Any district attorney in this state, with thepermission or at the direction of the Attorney General, shall instituteproceedings in the name of the State of Nevada for any violation of theprovisions of this chapter.

(Added to NRS by 1975, 946; A 1989, 305)

NRS 598A.080 Cooperationwith Federal Government and other states. TheAttorney General may cooperate with and coordinate the enforcement of theprovisions of this chapter with officials of the Federal Government and theseveral states, including but not limited to the sharing of information andevidence obtained in accordance with NRS598A.100.

(Added to NRS by 1975, 951)

NRS 598A.090 Jurisdictionof district courts. The district courts have jurisdictionover actions and proceedings for violations of the provisions of this chapterand may:

1. Issue temporary restraining orders and injunctionsto prevent and restrain violations of the provisions of this chapter.

2. Impose civil and criminal penalties and awarddamages as provided in this chapter.

3. Grant mandatory injunctions reasonably necessary toeliminate practices which are unlawful under the provisions of this chapter.

(Added to NRS by 1975, 947)

NRS 598A.100 Investigativedemands: Issuance by Attorney General; service; contents; privilegedinformation.

1. Whenever the Attorney General has reasonable causeto believe that any person has information or is in possession, custody orcontrol of any document or other tangible evidence relevant to an investigationfor violation of any provision of this chapter, he may issue in writing andcause to be served upon that person, before bringing any action concerning suchviolation 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 forinspection and copying.

2. The demand shall:

(a) Be served upon the person in the manner requiredfor service of process in this state or by certified mail with return receiptrequested.

(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 othertangible evidence with sufficient definiteness to permit them to be fairlyidentified.

(d) Contain a copy of the written interrogatories, ifany.

(e) Prescribe a time at which the person must appear totestify, within which to answer the written interrogatories or produce thedocuments or other tangible evidence, but inspection of documentary material orother tangible evidence may be carried out at the place where the documents orevidence are located when the production of the material would be burdensome tothe person investigated or where such visitorial investigation would bepreferred by the Attorney General.

(f) Specify a place for the taking of testimony or forproduction of evidence and identify the person who is to take custody of thedocument or other tangible evidence for the purposes of inspection or copying.

3. A written investigative demand shall not requirethe submission of any privileged documentary material or testimony.

(Added to NRS by 1975, 947)

NRS 598A.110 Investigativedemands: Confidentiality. Any procedure,testimony taken, document or other tangible evidence produced, or answer madeunder NRS 598A.100 shall be keptconfidential by the Attorney General prior to the institution of an actionbrought under this chapter for the alleged violation of the provisions of thischapter under investigation, unless:

1. Confidentiality is waived by the person upon whomthe written investigative demand is made;

2. Disclosure is authorized by the district court; or

3. Disclosure is made pursuant to NRS 598A.080.

(Added to NRS by 1975, 947)

NRS 598A.120 Investigativedemands: Order requiring compliance; penalty for failure to obey. In case of refusal to comply in whole or in part with thewritten investigative demand by any person to whom it is directed, any districtcourt of the State of Nevada, upon application of the Attorney General, mayissue an order requiring compliance. Failure to obey the order of the court maybe punished by the court as a contempt of court.

(Added to NRS by 1975, 948)

NRS 598A.130 Investigativedemands: 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 theground he may be incriminated thereby, any district court of the State ofNevada, upon the ex parte application of the Attorney General may order, in thename of the State of Nevada, that the natural person be released from allliability to be prosecuted or punished on account of any testimony or other evidencehe may be required to produce.

2. Except as provided in subsection 3, such order ofimmunity shall forever be a bar to prosecution against the witness for anyoffense shown in whole or in part by such testimony or other evidence.

3. Immunity obtained pursuant to this section shallnot:

(a) Exempt any person from prosecution for perjurycommitted in the giving of such testimony; or

(b) Prevent the Attorney General or a civil litigantfrom instituting civil proceedings against any person who violates theprovisions of this chapter.

(Added to NRS by 1975, 948)

NRS 598A.140 Investigativedemands: Order compelling compliance after immunity granted; penalty forfailure to obey. If any person refuses totestify, produce evidence or make answer after being granted immunity fromprosecution as provided by NRS 598A.130,the Attorney General may apply to any district court for an order compellingsuch person to testify, produce evidence or make answer. Any person whodisobeys such order of the court may be held in contempt of court.

(Added to NRS by 1975, 948)

NRS 598A.150 Investigativedemands: Duty of public officers and employees to furnish information andassistance. It is the duty of all publicofficers, their deputies, assistants, clerks, subordinates or employees, torender and furnish to the Attorney General, his deputy or other designatedrepresentative, when so requested, all the information and assistance in theirpossession or within their power relating to investigations carried out underthe provisions of this chapter.

(Added to NRS by 1975, 948)

NRS 598A.160 Civilaction by Attorney General for damages and other relief; proof of damages;procedure for distributing recovery.

1. TheAttorney General may bring a civil action for any violation of the provisionsof this chapter in the name of the State of Nevada and is entitled to recoverdamages and secure other relief provided by the provisions of this chapter:

(a) As parenspatriae of the persons residing in this state, with respect to damagessustained directly or indirectly by such persons, or, alternatively, if thecourt finds in its discretion that the interests of justice so require, as arepresentative of a class or classes consisting of persons residing in thisstate who have been damaged directly or indirectly; or

(b) As parenspatriae, with respect to direct or indirect damages to the general economy ofthe State of Nevada or any political subdivision thereof.

2. In anyaction under this section, this state:

(a) May recoverthe aggregate damage sustained by the persons on whose behalf this state sues,without separately proving the individual claims of each such person. Proof ofsuch damages must be based on:

(1) Statisticalor sampling methods;

(2) Thepro rata allocation of illegal overcharges of sales occurring within the Stateof Nevada; or

(3) Suchother reasonable system of estimating aggregate damages as the court maypermit.

(b) Shall distribute, allocate or otherwise pay theamounts so recovered in accordance with state law, or in the absence of anyapplicable state law, as the district court may authorize, subject to therequirement that any distribution procedure adopted afford each person on whosebehalf this state sues a reasonable opportunity individually to secure the prorata portion of such recovery attributable to his or its respective claims fordamages, 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 Civilpenalty in action brought by Attorney General for engaging in prohibitedactivity. Persons who engage in activitiesprohibited by this chapter are civilly liable, at the suit of the AttorneyGeneral, in an amount not to exceed 5 percent of the gross income realized bythe sale of commodities or services sold by such persons in this state in eachyear in which the prohibited activities occurred.

(Added to NRS by 1975, 949)

NRS 598A.180 Suitby Attorney General against domestic corporation or association.

1. Upon a violation of the provisions of this chapterby any corporation or association organized under the laws of this state, orupon failure to comply with the terms of the final judgment or decree renderedby a court of this state for a violation of the provisions of this chapter, orto comply with a consent judgment or decree rendered by a court of this stateconcerning an alleged violation of the provisions of this chapter, the AttorneyGeneral 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 orassociation; or

(b) The suspension of the privilege to conduct businesswithin the State.

2. The district court, in its discretion and with dueconsideration of all relevant factors, including relevant public interests andcompetitive and economic factors, may order the dissolution, suspend theprivilege to conduct business for a specific period, deny such relief orprovide other appropriate relief.

(Added to NRS by 1975, 949)

NRS 598A.190 Suitby Attorney General against foreign corporation or association.

1. Upon a violation of the provisions of this chapterby a foreign corporation or association exercising the privilege of conductingbusiness within this state, or upon a failure to comply with the terms of thefinal judgment or decree rendered by a court of this state in any proceedingunder the provisions of this chapter, or to comply with a consent judgment ordecree rendered by a court of this state concerning an alleged violation of theprovisions of this chapter, the Attorney General may institute a suit in anydistrict court for the revocation or suspension of franchises, privileges andpowers connected with doing business within the State.

2. The district court, in its discretion and with dueconsideration of all relevant factors, including relevant public interests andcompetitive and economic factors, may order the revocation or suspension of theprivilege to conduct business for a specified period, deny relief or provideother appropriate relief. A revocation shall have the same effect as a failureto qualify to do business in this state.

(Added to NRS by 1975, 949)

NRS 598A.200 Actionfor injury to public business or property: Treble damages; attorneys fees andcosts. The State, any district, municipalcorporation, agency or other political subdivision of the State injured in itsbusiness or property by reason of a violation of the provisions of thischapter, shall recover treble damages, together with reasonable attorney feesand costs.

(Added to NRS by 1975, 950)

NRS 598A.210 Privateaction for injury to business or property: Injunctive relief; treble damages;attorneys fees and costs; copy of complaint mailed to Attorney General.

1. Any personthreatened with injury or damage to his business or property by reason of aviolation of any provision of this chapter, may institute a civil action orproceeding for injunctive relief. If the court issues a permanent injunction,the plaintiff shall recover reasonable attorney fees, together with costs, asdetermined by the court.

2. Any personinjured or damaged directly or indirectly in his business or property by reasonof a violation of the provisions of this chapter may institute a civil actionand shall recover treble damages, together with reasonable attorney fees andcosts.

3. Any person commencing an action for any violationof the provisions of this chapter shall, simultaneously with the filing of thecomplaint 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 Limitationof actions.

1. An action brought under NRS 598A.170 or 598A.200 is barred if it is not commencedwithin 4 years after the cause of action accrues, or if the cause of action isbased upon a conspiracy in violation of this chapter, within 4 years after theplaintiff discovered, or by the exercise of reasonable diligence, should havediscovered 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 notcommenced:

(a) Within 4 years after the cause of action accrues,or if the cause of action is based upon a conspiracy in violation of thischapter, within 4 years after the plaintiff discovered, or by the exercise ofreasonable diligence, should have discovered the facts relied upon for proof ofthe conspiracy; or

(b) Within 1 year after the conclusion of any action orproceeding brought under NRS 598A.170or 598A.200 commenced within or beforethe running of the 4-year period as provided in paragraph (a) and which isbased in whole or in part on any matter complained of in the action fordamages.

3. For the purpose of this section, a cause of actionfor a continuing violation arises at any time during the period of suchviolation.

(Added to NRS by 1975, 950)

NRS 598A.230 Liabilityof legal or commercial entity for acts of its officers, directors and agents. A corporation, association, firm, partnership, proprietorshipor any other legal or commercial entity is liable under this chapter for theacts of its officers, directors, representatives or agents, acting within thescope of their actual or apparent authority. Proof of the acts of any suchofficer, director, representative or agent shall constitute prima facie proofas being the acts of the corporation, association, firm, partnership orproprietorship itself.

(Added to NRS by 1975, 949)

NRS 598A.240 Judgmentsand decrees as prima facie evidence. Any finaljudgment or decree, other than a stipulation or consent decree approved by adistrict court before any testimony has been taken, rendered in any action orproceeding brought by the Attorney General or any district attorney with thepermission or at the direction of the Attorney General, shall be prima facieevidence in any action brought under this chapter as to all matters withrespect to which the judgment or decree would be an estoppel between theparties to the suit.

(Added to NRS by 1975, 950)

NRS 598A.250 Remediescumulative. The remedies afforded by this chapterare cumulative.

(Added to NRS by 1975, 951)

NRS 598A.260 Depositof money obtained by Attorney General as awards, damages or penalties; AttorneyGenerals Special Fund.

1. All money obtained as awards, damages or civilpenalties for the State of Nevada and its agencies by the Attorney General as aresult of enforcement of statutes pertaining to unfair trade practices, whetherby final judgment, settlement or otherwise, must be deposited in the StateTreasury as follows:

(a) All attorneys fees and costs and 50 percent of allrecoveries for credit to the Attorney Generals Special Fund.

(b) The balance of the recoveries for credit to theState General Fund.

2. Money deposited in the State Treasury for credit tothe Attorney Generals Special Fund pursuant to subsection 1 must be used forpayment of the expenses of enforcing the statutes pertaining to unfair tradepractices and NRS 228.500 to 228.640, inclusive. Those expenses whichare in excess of the amount available in the Fund must be paid out of thelegislative appropriation for the support of the Office of Attorney General.

3. On June 30 of each fiscal year, any amount inexcess of $450,000 in the Attorney Generals Special Fund of the moneycollected pursuant to subsection 1 reverts to the State General Fund.

4. The balance of the money in the Attorney GeneralsSpecial Fund that is collected pursuant to subsection 1 must not exceed$500,000. If money deposited in the State Treasury for credit to the AttorneyGenerals Special Fund pursuant to subsection 1 would cause that balance toexceed $500,000 if credited to the Fund, the amount of the deposit which wouldcause the balance to exceed $500,000 immediately reverts to the State GeneralFund.

(Added to NRS by 1975, 951; A 1979, 119; 1999, 946; 2003, 2877)

NRS 598A.280 Criminalpenalty. A person who conspires to, or does,violate any of the provisions of this chapter is guilty of a category D felonyand shall be punished as provided in NRS193.130

(Added to NRS by 1975, 950; A 1995, 1307)

 

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