CHAPTER 59. MONOPOLIES AND UNLAWFUL COMBINATIONSÂ
ARTICLE 16. CONSUMER PROTECTION ACT Â
Neb. Rev. Stat. § 59-1601. Terms, defined    For purposes of the Consumer Protection Act, unless the context otherwise requires:  (1) Person shall mean natural persons, corporations, trusts, unincorporated associations, partnerships, and limited liability companies;  (2) Trade and commerce shall mean the sale of assets or services and any commerce directly or indirectly affecting the people of the State of
Neb. Rev. Stat. § 59-1602. Unfair competition; practices; unlawful    Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce shall be unlawful.
Neb. Rev. Stat. § 59-1603. Contracts, combinations, conspiracies in restraint of trade; unlawful    Any contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce shall be unlawful.
Neb. Rev. Stat. § 59-1604. Monopolies and attempted monopolies; unlawful    It shall be unlawful for any person to monopolize, or attempt to monopolize or combine or conspire with any other person or persons to monopolize any part of trade or commerce.
Neb. Rev. Stat. § 59-1605. Transactions and agreements not to use or deal in commodities or services of competitor; unlawful; when    It shall be unlawful for any person to lease or sell or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, or services, whether patented or unpatented, for use, consumption, enjoyment, or resale, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodity or services of a competitor of the lessor or seller, when the effect of such lease, sale, or contract for such sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.
Neb. Rev. Stat. § 59-1606. Acquisition of corporate stock by another corporation to lessen competition; unlawful; exceptions; judicial order to divest    (1) It shall be unlawful for any corporation to acquire, directly or indirectly, the whole or any part of the stock or assets of another corporation when the effect of such acquisition may be to substantially lessen competition or tend to create a monopoly in any line of commerce.(2) This section shall not apply to corporations which purchase such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition; nor shall anything contained in this section prevent a corporation from causing the formation of subsidiary corporations for the actual carrying on of their immediate lawful business, or the natural and legitimate branches or extensions thereof, or from owning and holding all or a part of the stock of such subsidiary corporations, when the effect of such formation is not to substantially lessen competition.(3) In addition to any other remedy provided by the Consumer Protection Act, the district court may order any corporation to divest itself of the stock or assets held contrary to this section, in the manner and within the time fixed by such order.
Neb. Rev. Stat. § 59-1607. Labor not an article of commerce    The labor of a human being shall not be a commodity or article of commerce. Nothing contained in the Consumer Protection Act shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof.
Neb. Rev. Stat. § 59-1608. Attorney General; restrain prohibited acts; costs; restoration of property    (1) The Attorney General may bring an action in the name of the state against any person to restrain and prevent the doing of any act prohibited by the Consumer Protection Act. The prevailing party may, in the discretion of the court, recover the costs of such action including a reasonable attorney’s fee.(2) The court may make such additional orders or judgments as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of any act prohibited in the Consumer Protection Act.
Neb. Rev. Stat. § 59-1608.01. Enforcement of act; venue    In the enforcement of the Consumer Protection Act, the Attorney General may bring an action in the name of the state in the district court of the county in which the alleged violator resides or has his or her principal place of business or in
Neb. Rev. Stat. § 59-1608.02. Repealed    Laws 2006, LB 1061, Neb. Rev. Stat. § 29. Neb. Rev. Stat. § 59-1608.03. Recovery under act; Attorney General; duties    When the Attorney General, on behalf of a state agency or political subdivision, is authorized to investigate, file suit, or otherwise take action in connection with violations under the Consumer Protection Act, any recovery of damages or costs by judgment, court decree, settlement in or out of court, or other final result shall be subject to the following:  (1) Upon recovery of damages or any monetary payment, except criminal penalties, the costs, expenses, or billings incurred by any state agency or political subdivision in any investigation or other action arising out of a violation under the act shall be sought out in any judgment, court decree, settlement in or out of court, or other final result. Any recovered costs shall be deposited by the Attorney General in the fund from which such costs were expended;  (2) When the Attorney General makes recovery pursuant to the act on behalf of a state agency or political subdivision of any money, funds, securities, or other things of value in the nature of civil damages or other payment, except criminal penalties, whether such recovery is by way of verdict, judgment, compromise, or settlement in or out of court, or other final disposition of any case or controversy, such money, funds, securities, or other things of value shall be deposited by the Attorney General in the fund from which the funds which are being recovered were expended;  (3) Except as otherwise provided by law, the State Settlement Cash Fund shall consist of all recoveries received pursuant to the act, including any money, funds, securities, or other things of value in the nature of civil damages or other payment, except criminal penalties, whether such recovery is by way of verdict, judgment, compromise, or settlement in or out of court, or other final disposition of any case or controversy, or any other payments received on behalf of the state by the Department of Justice and administered by the Attorney General for the benefit of the state or the general welfare of its citizens, but excluding all funds held in a trust capacity where specific benefits accrue to specific individuals, organizations, or governments; and  (4) Except as otherwise provided by law, the State Settlement Trust Fund shall consist of all recoveries received pursuant to the act, including any money, funds, securities, or other things of value in the nature of civil damages or other payment, except criminal penalties, whether such recovery is by way of verdict, judgment, compromise, or settlement in or out of court, or other final disposition of any case or controversy, or any other payments received on behalf of the state by the Department of Justice and administered by the Attorney General, but to include only those funds held in a trust capacity where specific benefits accrue to specific individuals, organizations, or governments.
Neb. Rev. Stat. § 59-1608.04. State Settlement Cash Fund; created; use; investment    The State Settlement Cash Fund is created. The fund shall be maintained by the Department of Justice and administered by the Attorney General. Except as otherwise provided by law, the fund shall consist of all recoveries received pursuant to the Consumer Protection Act, including any money, funds, securities, or other things of value in the nature of civil damages or other payment, except criminal penalties, whether such recovery is by way of verdict, judgment, compromise, or settlement in or out of court, or other final disposition of any case or controversy, or any other payments received on behalf of the state by the Department of Justice and administered by the Attorney General for the benefit of the state or the general welfare of its citizens, but excluding all funds held in a trust capacity where specific benefits accrue to specific individuals, organizations, or governments. All money in the fund shall be subject to legislative review and shall be appropriated and expended for any allowable legal purposes as determined by the Legislature. The fund shall only be appropriated to a separate and distinct budget program and such appropriations shall only be expended from a separate and distinct budget subprogram and shall not be commingled with any other revenue or expenditure. To provide necessary financial accountability and management oversight, revenue from individual settlement agreements or other separate sources credited to the fund may be tracked and accounted for within the state accounting system through the use of separate and distinct funds, subfunds, or any other available accounting mechanism specifically approved by the Accounting Administrator for use by the Department of Justice. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.
Neb. Rev. Stat. § 59-1608.05. State Settlement Trust Fund; created; use; investment    The State Settlement Trust Fund is created. The fund shall be maintained by the Department of Justice and administered by the Attorney General. Except as otherwise provided by law, the fund shall consist of all recoveries received pursuant to the Consumer Protection Act, including any money, funds, securities, or other things of value in the nature of civil damages or other payment, except criminal penalties, whether such recovery shall be by way of verdict, judgment, compromise, or settlement in or out of court, or other final disposition of any case or controversy, or any other payments received on behalf of the state by the Department of Justice and administered by the Attorney General, but to include only those funds held in a trust capacity where specific benefits accrue to specific individuals, organizations, or governments. All money in the State Settlement Trust Fund shall be subject to legislative review, but shall not be subject to legislative appropriation. The fund shall be expended consistent with any legal restrictions placed on the funds. The fund shall be paid from the same budget program used to record revenue and expenditures of the State Settlement Cash Fund, except that the fund shall only be expended from a separate and distinct budget subprogram and shall not be commingled with any other revenue or expenditure. To provide necessary financial accountability and management oversight, revenue from individual settlement agreements or other separate sources credited to the fund may be tracked and accounted for within the state accounting system through the use of separate and distinct funds, subfunds, or any other available accounting mechanism specifically approved by the Accounting Administrator for use by the Department of Justice. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.
Neb. Rev. Stat. § 59-1609. Civil action for damages    Any person who is injured in his or her business or property by a violation of sections 59-1602 to 59-1606, whether such injured person dealt directly or indirectly with the defendant, or any person so injured because he or she refuses to accede to a proposal for an arrangement which, if consummated, would be in violation of sections 59-1603 to 59-1606, may bring a civil action in the district court to enjoin further violations, to recover the actual damages sustained by him or her, or both, together with the costs of the suit, including a reasonable attorney’s fee, and the court may in its discretion, increase the award of damages to an amount which bears a reasonable relation to the actual damages which have been sustained and which damages are not susceptible of measurement by ordinary pecuniary standards; except that such increased award for violation of section 59-1602 shall not exceed one thousand dollars. For the purpose of this section, person shall include the counties, the municipalities, and all political subdivisions of this state.   Whenever the State of
Neb. Rev. Stat. § 59-1609.01. Illegal overcharge or undercharge case    In an illegal overcharge or undercharge case in which claims are asserted by both parties who dealt directly with the defendant and parties who dealt indirectly with the defendant or any combination thereof:  (1) A defendant may prove, as a partial or complete defense to a claim for damages under sections 59-1602 to 59-1606, that the illegal overcharge or undercharge has been passed on to others who are themselves entitled to recover so as to avoid duplication of recovery of such damages; and  (2) The court may transfer and consolidate such claims, apportion damages, and delay disbursement of damages to avoid multiplicity of suits and duplication of recovery of damages and to obtain substantial fairness.
Neb. Rev. Stat. § 59-1610. Assurance of discontinuance of prohibited act; approval of court; not considered admission    In the enforcement of the Consumer Protection Act, the Attorney General may accept an assurance of discontinuance of any act or practice deemed in violation of the Consumer Protection Act, from any person who engages in, or who has engaged in, such act or practice. Any such assurance shall be in writing and be filed with and subject to the approval of the district court of the county in which the alleged violator resides or has his or her principal place of business, or in
Neb. Rev. Stat. § 59-1611. Demand to produce documentary materials for inspection; contents; service; unauthorized disclosure; return; modification; vacation; use; penalty    (1) Whenever the Attorney General believes that any person may be in possession, custody, or control of any original or copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or recording, wherever situated, which he or she believes to be relevant to the subject matter of an investigation of a possible violation of sections 59-1602 to 59-1606, the Attorney General may, prior to the institution of a civil proceeding thereon, execute in writing and cause to be served upon such a person a civil investigative demand requiring such person to produce such documentary material and permit inspection and copying thereof. This section shall not be applicable to criminal prosecutions.(2) Each such demand shall:  (a) State the statute and section or sections thereof the alleged violation of which is under investigation, and the general subject matter of the investigation;  (b) Describe the class or classes of documentary material to be produced thereunder with reasonable specificity so as fairly to indicate the material demanded;  (c) Prescribe a return date within which the documentary material shall be produced; and  (d) Identify the members of the Attorney General’s staff to whom such documentary material shall be made available for inspection and copying.(3) No such demand shall:  (a) Contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this state; or  (b) Require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of this state.(4) Service of any such demand may be made by:  (a) Delivering a duly executed copy thereof to the person to be served, or, if such person is not a natural person, to any officer of the person to be served;  (b) Delivering a duly executed copy thereof to the principal place of business in this state of the person to be served; or  (c) Mailing by certified mail a duly executed copy thereof addressed to the person to be served at the principal place of business in this state, or, if such person has no place of business in this state, to his or her principal office or place of business.(5) Documentary material demanded pursuant to the provisions of this section shall be produced for inspection and copying during normal business hours at the principal office or place of business of the person served, or at such other times and places as may be agreed upon by the person served and the Attorney General.(6) No documentary material produced pursuant to a demand, or copies thereof, shall, unless otherwise ordered by a district court for good cause shown, be produced for inspection or copying by, nor shall the contents thereof be disclosed to, other than an authorized employee of the Attorney General, without the consent of the person who produced such material, except that under such reasonable terms and conditions as the Attorney General shall prescribe, the copies of such documentary material shall be available for inspection and copying by the person who produced such material or any duly authorized representative of such person. The Attorney General or any assistant attorney general may use such copies of documentary material as he or she determines necessary in the enforcement of the Consumer Protection Act, including presentation before any court, except that any such material which contains trade secrets shall not be presented except with the approval of the court in which action is pending after adequate notice to the person furnishing such material.(7) At any time before the return date specified in the demand, or within twenty days after the demand has been served, whichever period is shorter, a petition to extend the return date for or to modify or set aside a demand issued pursuant to subsection (1) of this section, stating good cause, may be filed in the district court for Lancaster County, or in such other county where the parties reside. A petition by the person on whom the demand is served, stating good cause, to require the Attorney General or any person to perform any duty imposed by the provisions of this section, and all other petitions in connection with a demand, may be filed in the district court for
Neb. Rev. Stat. § 59-1612. Limitation of action    Any action to enforce a claim for damages under section 59-1609 shall be forever barred unless commenced within four years after the cause of action accrues; Provided, that whenever any action is brought by the Attorney General for a violation of sections 59-1602 to 59-1606, except actions for the recovery of a civil penalty for violation of an injunction or actions under section 59-1609, the running of such statute of limitations, with respect to every private right of action for damages under section 59-1609 which is based in whole or part on any matter complained of in the action by the Attorney General, shall be suspended during the pendency thereof.
Neb. Rev. Stat. § 59-1613. Final judgment or decree; prima facie evidence in civil action; exception    A final judgment or decree rendered in any action brought under section 59-1608 by the state to the effect that a defendant has violated sections 59-1602 to 59-1606 shall be prima facie evidence against such defendant in any action brought by any party against such defendant under section 59-1609 as to all matters as to which such judgment or decree would be an estoppel as between the parties thereto; Provided, that this section shall not apply to consent judgments or decrees when the court makes no finding of illegality.
Neb. Rev. Stat. § 59-1614. Civil penalties; Attorney General; duties    Any person who violates section 59-1603 or 59-1604 or the terms of any injunction issued as provided in the Consumer Protection Act shall forfeit and pay a civil penalty of not more than twenty-five thousand dollars.   Any person who violates section 59-1602 shall pay a civil penalty of not more than two thousand dollars for each violation, except that such penalty shall not apply to any radio or television broadcasting station which broadcasts, or to any publisher, printer, or distributor of any newspaper, magazine, billboard, or other advertising medium who publishes, prints, or distributes advertising in good faith without knowledge of its false, deceptive, or misleading character and no such good faith publication, printing, or distribution shall be considered a violation of section 59-1602.   For the purpose of this section, the district court which issues any injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the Attorney General acting in the name of the state may petition for the recovery of civil penalties.   With respect to violations of sections 59-1603 and 59-1604, the Attorney General, acting in the name of the state, may seek recovery of such penalties in a civil action.
Neb. Rev. Stat. § 59-1615. Dissolution, suspension, or forfeiture of corporate franchise    Upon petition by the Attorney General, the court may, in its discretion, order the dissolution, or suspension or forfeiture of franchise, of any corporation which violates section 59-1603 or 59-1604 or the terms of any injunction issued as provided in the Consumer Protection Act.
Neb. Rev. Stat. § 59-1616. Personal service of process outside state    Personal service of any process in an action under the Consumer Protection Act may be made upon any person outside the state if such person has engaged in conduct in violation of the act which has had impact in this state which the act prohibits.
Neb. Rev. Stat. § 59-1617. Exempted transactions    (1) Except as provided in subsection (2) of this section, the Consumer Protection Act shall not apply to actions or transactions otherwise permitted, prohibited, or regulated under laws administered by the Director of Insurance, the Public Service Commission, the Federal Energy Regulatory Commission, or any other regulatory body or officer acting under statutory authority of this state or the United States. The Consumer Protection Act and federal antitrust laws shall not extend to or apply to (a) any actions or transactions on the part of any municipality or group of municipalities while engaged in regulating natural gas rates pursuant to the State Natural Gas Regulation Act or section 16-679 or 17-528.02 or as otherwise permitted by law or (b) any actions or transactions on the part of any public power and irrigation district, public power district, electric membership association, or joint authority created pursuant to the Joint Public Power Authority Act or of any agency created pursuant to the Municipal Cooperative Financing Act, cooperative, or municipality engaged in furnishing electrical service to customers at retail or wholesale if such actions or transactions are otherwise permitted by law.(2) Actions and transactions prohibited or regulated under the laws administered by the Director of Insurance shall be subject to section 59-1602 and all statutes which provide for the implementation and enforcement of section 59-1602. Actions and transactions prohibited or regulated under the laws administered by the Board of Funeral Directing and Embalming or administered by the Department of Agriculture and actions and transactions relating to loan brokers which are prohibited or regulated pursuant to sections 45-189 to 45-191.11 and administered by the Department of Banking and Finance shall be subject to the Consumer Protection Act.No penalty or remedy shall result from a violation of the Consumer Protection Act except as expressly provided in such act.
Neb. Rev. Stat. § 59-1618. Agricultural products; producers; associations; form; requirements    Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut growers, or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing such products in intrastate commerce. Such associations may have marketing agencies in common, and the associations and their members may make the necessary contracts and agreements to effect such purposes. The associations shall be operated for the mutual benefit of the members thereof, as such producers, and conform to one or both of the following requirements:  (1) That no member of the association is allowed more than one vote because of the amount of stock or membership capital he may own therein; or  (2) That the association does not pay dividends on stock or membership capital in excess of eight percent per annum.   Such association shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.
Neb. Rev. Stat. § 59-1619. Agricultural associations; monopolies; restraint of trade; Attorney General; complaint; notice of hearing    If the Attorney General shall have reason to believe that any association described in section 59-1618 monopolizes or restrains trade to such an extent that the price of any agricultural product is unduly enhanced by reason thereof, he shall serve upon such association a complaint stating his charge in that respect, to which complaint shall be attached or in which shall be contained a notice of hearing, specifying a day and place not less than thirty days after the service thereof, requiring the association to show cause why an order should not be made directing it to cease and desist from monopolization or restraint of trade.
Neb. Rev. Stat. § 59-1620. Contracts and agreements in restraint of trade; void; voidable    All contracts and agreements made in restraint of trade by coconspirators in violation of the provisions of section 59-1603, 59-1604, or 59-1605 shall be void. All contracts and agreements made between a conspirator and an innocent party in violation of the provisions of section 59-1603, 59-1604, or 59-1605 shall be voidable by the innocent party.
Neb. Rev. Stat. § 59-1621. Conspiracy in restraint of trade; findings; prima facie evidence    Upon a finding in district court that a conspiracy in restraint of trade existed in an action brought pursuant to section 59-1603 or 59-1604, that finding shall constitute prima facie evidence of the existence of the conspiracy in subsequent civil actions involving the conspiracy.
Neb. Rev. Stat. § 59-1622. Officers; liable for debts and obligations; when    Every president, treasurer, general manager, agent, or other person exercising the powers of such office of any corporation, joint-stock company, or other association, who has himself, in its behalf, knowingly violated, united to violate, or consented to the violation of the provisions of section 59-1603, 59-1604, or 59-1605, shall thereafter be personally liable for all debts and obligations of any such corporation, joint-stock company, or other association created while such person holds such office or agency and which were incurred in the furtherance of that violation.
Neb. Rev. Stat. § 59-1623. Act, how cited    Sections 59-1601 to 59-1622 shall be known and may be cited as the Consumer Protection Act.
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