[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.

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      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)