This chapter may be cited as the Nevada
Unfair Trade Practice Act.
(Added to NRS by 1975, 944)
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)
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)
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 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 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 Transportation Services 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)
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)
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 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 )
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)
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)
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)
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 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)
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;
2. Disclosure is authorized by the district court; or
3. Disclosure is made pursuant to NRS 598A.080 .
(Added to NRS by 1975, 947)
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)
1. If a natural person refuses to make written answer, testify or
produce evidence pursuant to a written investigative demand on the ground
he 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 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)
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)
It is the duty of all
public officers, their deputies, assistants, clerks, subordinates or
employees, to render and furnish to the Attorney General, his 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)
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 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 )
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)
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)
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)
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)
1. Any person threatened with injury or damage to his 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
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 )
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)
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)
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)
The remedies afforded by this
chapter are cumulative.
(Added to NRS by 1975, 951)
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 )
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)
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