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87-301. Terms, defined.
For purposes of the Uniform Deceptive Trade Practices Act, unless the context otherwise requires:
(2) Appropriate inventory repurchase program means a program by which a plan or operation repurchases, upon request and upon commercially reasonable terms, when the salesperson's business relationship with the company ends, current and marketable inventory in the possession of the salesperson that was purchased by the salesperson for resale. Any such plan or operation shall clearly describe the program in its recruiting literature, sales manual, or contract with independent salespersons, including the disclosure of any inventory that is not eligible for repurchase under the program;
(8) Commercially reasonable terms means the repurchase of current and marketable inventory within twelve months from the date of purchase at not less than ninety percent of the original net cost, less appropriate setoffs and legal claims, if any;
(9) Compensation means a payment of any money, thing of value, or financial benefit;
(10) Consideration means anything of value, including the payment of cash or the purchase of goods, services, or intangible property. The term does not include the purchase of goods or services furnished at cost to be used in making sales and not for resale or time and effort spent in pursuit of sales or recruiting activities;
(12) Current and marketable has its plain and ordinary meaning but excludes inventory that is no longer within its commercially reasonable use or shelf-life period, was clearly described to salespersons prior to purchase as seasonal, discontinued, or special promotion products not subject to the plan or operation's inventory repurchase program, or has been used or opened;
(15) Inventory includes both goods and services, including company-produced promotional materials, sales aids, and sales kits that the plan or operation requires independent salespersons to purchase;
(16) Inventory loading means that the plan or operation requires or encourages its independent salespersons to purchase inventory in an amount which exceeds that which the salesperson can expect to resell for ultimate consumption or to a consumer in a reasonable time period, or both;
(17) Investment means any acquisition, for a consideration other than personal services, of personal property, tangible or intangible, for profit or business purposes, and includes, without limitation, franchises, business opportunities, and services. It does not include real estate, securities registered under the Securities Act of Nebraska, or sales demonstration equipment and materials furnished at cost for use in making sales and not for resale;
(19) Person means a natural person, a corporation, a government, a governmental subdivision or agency, a business trust, an estate, a trust, a partnership, a joint venture, a limited liability company, an unincorporated association, a sole proprietorship, or two or more of any of such persons having a joint or common interest or any other legal or commercial entity;
(20) Pyramid promotional scheme means any plan or operation in which a participant gives consideration for the right to receive compensation that is derived primarily from the recruitment of other persons as participants in the plan or operation rather than from the sales of goods, services, or intangible property to participants or by participants to others. A limitation as to the number of persons who may participate, or the presence of additional conditions affecting eligibility, or upon payment of anything of value by a person whereby the person obtains any other property in addition to the right to receive consideration, does not change the identity of the scheme as a pyramid promotional scheme;
(21) Referral or chain referral sales or leases means any sales technique, plan, arrangement, or agreement whereby the seller or lessor gives or offers to give a rebate or discount or otherwise pays or offers to pay value to the buyer or lessee as an inducement for a sale or lease in consideration of the buyer or lessee giving to the seller or lessor the names of prospective buyers or lessees or otherwise aiding the seller or lessor in making a sale or lease to another person if the earning of the rebate, discount, or other value is contingent upon the occurrence of an event subsequent to the time the buyer or lessee agrees to buy or lease;
(27) Use or promote the use of, for purposes of subdivision (a)(13) of section 87-302, means contrive, prepare, establish, plan, operate, advertise, or otherwise induce or attempt to induce another person to participate in a pyramid promotional scheme, including a pyramid promotional scheme run through the Internet, email, or other electronic communications.
87-302. Deceptive trade practices; enumerated.
(a) A person engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, he or she:
,,,,,, (13) Uses or promotes the use of or establishes, operates, or participates in a pyramid promotional scheme in connection with the solicitation of such scheme to members of the public. This subdivision shall not be construed to prohibit a plan or operation, or to define a plan or operation as a pyramid promotional scheme, based on the fact that participants in the plan or operation give consideration in return for the right to receive compensation based upon purchases of goods, services, or intangible property by participants for personal use, consumption, or resale so long as the plan or operation does not promote or induce inventory loading and the plan or operation implements an appropriate inventory repurchase program;
87-303. Deceptive trade practices; damages; injunction; costs; additional remedy.
(a) A person likely to be damaged by a deceptive trade practice of another may bring an action for, and the court may grant, an injunction under the principles of equity against the person committing the deceptive trade practice. The court may order such additional equitable relief as it deems necessary to protect the public from further violations, including temporary and permanent injunctive relief. Proof of monetary damage, loss of profits, or intent to deceive is not required. Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source.
(b) Costs shall be allowed to the prevailing party unless the court otherwise directs. The court in its discretion may award attorneys' fees to the prevailing party if (1) the party complaining of a deceptive trade practice has brought an action which he or she knew to be groundless or (2) the party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive.
(c) A claim filed for a violation of the Uniform Deceptive Trade Practices Act shall be proved by a preponderance of the evidence.
(d) The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.
87-303.01. Unconscionable act or practice; violation; determination.
(1) An unconscionable act or practice by a supplier in connection with a consumer transaction shall be a violation of the Uniform Deceptive Trade Practices Act.
(2) The unconscionability of an act or practice shall be a question of law for the court. If it is claimed or appears to the court that an act or practice may be unconscionable, the parties shall be given a reasonable opportunity to present evidence as to its setting, purpose, and effect to aid the court in making its determination.
87-303.02. Deceptive trade practice or unconscionable act; Attorney General; powers.
When the Attorney General has cause to believe that any person has engaged in or is engaging in any deceptive trade practice or unconscionable act listed in section 87-302 or 87-303.01, the Attorney General may:
(a) Require such person to file a statement or report in writing under oath or otherwise, on such forms as shall be prescribed by the Attorney General, as to all facts and circumstances concerning the sale, offer, or advertisement of property by such person, and such other data and information as the Attorney General deems necessary;
(b) Examine under oath any person in connection with the sale or advertisement of any property;
(c) Examine any property or sample thereof, record, book, document, account, or paper as the Attorney General deems necessary; or
(d) Pursuant to an order of any district court, impound any record, book, document, account, paper, or sample of property which is material to such practice and retain the same in his or her possession until the completion of all proceedings undertaken under the Uniform Deceptive Trade Practices Act.
87-303.03. Attorney General; additional powers.
(1) The Attorney General, in addition to other powers conferred upon him or her by the Uniform Deceptive Trade Practices Act:
(a) May issue subpoenas to require the attendance of witnesses or the production of documents, administer oaths, conduct hearings in aid of any investigation or inquiry, and prescribe such forms and adopt and promulgate such rules as may be necessary to administer the act; and
(b) May issue a cease and desist order, with or without prior hearing, against any person engaged in activities in violation of the act, directing such person to cease and desist from such activity.
(2) Service of any notice or subpoena may be made in the manner prescribed by the rules of civil procedure.
87-303.04. Attorney General; order; failure or refusal to obey; court; powers.
(1) If any person fails or refuses to obey any order of the Attorney General to file any statement or report, or to obey any subpoena issued by the Attorney General, pursuant to the Uniform Deceptive Trade Practices Act, the Attorney General may apply to any district court in this state for relief until such person obeys such order or subpoena or files such statement or report.
(2) The court, in its order, may:
(a) Grant injunctive relief restraining the sale or advertisement of any property by such person;
(b) Require the attendance of or the production of documents by such person, or both;
(c) Suspend or revoke any license, permit, or certificate issued pursuant to law to any such person, which may be used to further the alleged unlawful practice; or
(d) Grant such other or further relief as may be necessary to obtain compliance by such person.
87-303.05. Attorney General; temporary restraining order; civil action; written assurance of voluntary compliance; deceptive practice; burden of proof.
(1) Whenever the Attorney General has cause to believe that a person has engaged in or is engaging in any deceptive trade practice or unconscionable act listed in section 87-302 or 87-303.01, the Attorney General may apply for and obtain, in an action in any district court of this state, a temporary restraining order, or injunction, or both, pursuant to the rules of civil procedure, prohibiting such person from continuing such practices, or engaging therein, or doing any act in furtherance thereof. The court may make such orders or judgments as may be necessary to prevent the use or employment by such person of any such deceptive trade practice, or which may be necessary to restore to any other person any money or real or personal property which may have been acquired by means of any such practice.
(2) When the Attorney General has authority to institute a civil action or other proceeding pursuant to the Uniform Deceptive Trade Practices Act, in lieu thereof, the Attorney General may accept an assurance of discontinuance of any deceptive trade practice or unconscionable act listed in section 87-302 or 87-303.01. Such assurance may include a stipulation for the voluntary payment by the alleged violator of the costs of investigation by the Attorney General and of any amount or amounts necessary to restore to any person any money or real or personal property which may have been acquired by such alleged violator by means of any such practice. Proof by a preponderance of evidence of a violation of such assurance shall constitute prima facie evidence of a deceptive practice as listed in section 87-302 or 87-303.01 in any civil action or proceeding thereafter commenced by the Attorney General.
87-303.06. Claims not barred.
The Uniform Deceptive Trade Practices Act shall not bar any claim against any person who has acquired any money or real or personal property by means of any deceptive trade practice or unconscionable act listed in section 87-302 or 87-303.01.
87-303.07. Sale or lease agreement; unenforceable; when.
If a buyer or lessee is induced by a violation of section 87-302 or 87-303.01 to enter into a sale or lease, the agreement is unenforceable by the seller or lessor and the buyer or lessee, at his or her option, may rescind the agreement or retain the merchandise delivered and the benefit of any services performed without any obligation to pay for them.
87-303.08. Violations; penalty.
Any person who violates the Uniform Deceptive Trade Practices Act shall be guilty of a Class II misdemeanor except as otherwise provided in the act.
87-303.09. Injunction, declaratory judgment, written assurance; violation; penalty.
Any person who willfully violates the terms of an injunction or declaratory judgment of the court or the terms of a written assurance of voluntary compliance entered into pursuant to the Uniform Deceptive Trade Practices Act shall be guilty of a Class IV felony.
Source:Laws 1974, LB 327, § 11; Laws 1990, LB 656, § 23.
87-303.10. Civil action; statute of limitations.
A civil action arising under the Uniform Deceptive Trade Practices Act may be brought only within four years from the date of the purchase of goods or services.
Source:Laws 1976, LB 820, § 2; Laws 1990, LB 656, § 24.
87-303.11. Violations; civil penalty; recovery; procedure.
Any person who violates section 87-302 or 87-303.01 or who willfully violates the terms of an injunction or declaratory judgment of a district court or the terms of a written assurance of voluntary compliance entered into pursuant to the Uniform Deceptive Trade Practices Act shall be subject to a civil penalty of not more than two thousand dollars for each violation. The Attorney General, acting in the name of the state, may seek recovery of such civil penalties in a civil action. For purposes of this section, the district court which issues any injunction shall retain jurisdiction and the cause shall be continued while the Attorney General seeks the recovery of such civil penalties.
Source:Laws 1990, LB 656, § 25; Laws 1993, LB 305, § 34.
87-303.12. Copy of pleadings, orders, judgments, and notices; provided to Attorney General; right to intervene.
(1) A party filing a petition, counterclaim, cross-petition, or pleading in intervention alleging a violation under the Uniform Deceptive Trade Practices Act, within seven days following the date of filing such pleading, shall provide a copy to the Attorney General and, within seven days following entry of any final judgment in the action, shall provide a copy of the judgment to the Attorney General. This subsection does not apply to Small Claims Court actions, except as provided in subsection (2) of this section.
(2) A party appealing a Small Claims Court order or judgment to district court involving an issue raised under the act, within seven days of providing notice of the appeal, shall notify the Attorney General in writing and provide a copy of the pleading raising the issue and a copy of the Small Claims Court order or judgment.
(3) A party appealing an order or judgment involving an issue raised under the act, within seven days following the date such notice of appeal is filed with the court, shall notify the Attorney General in writing and provide a copy of the pleading raising the issue and a copy of the court order or judgment being appealed.
(4) Upon timely application to the court in which an action involving an issue raised under the act is pending, the Attorney General may intervene as a party at any time or may be heard at any time. The Attorney General's failure to intervene shall not preclude the Attorney General from bringing a separate enforcement action.
(5) All copies of pleadings, orders, judgments, and notices required by this section to be sent to the Attorney General shall be sent by certified mail unless the Attorney General has previously been provided such copies of the pleadings, orders, judgments, or notices in the same action by certified mail, in which case subsequent mailings may be made by regular mail. Failure to provide the required mailings to the Attorney General shall not be grounds for dismissal of an action under the act, but may be grounds for a subsequent action by the Attorney General to vacate or modify the judgment.
Source:Laws 2010, LB801, § 4.
87-304. Applicability of act.
(a) The Uniform Deceptive Trade Practices Act does not apply to:
(1) Conduct in compliance with the orders or rules of, or a statute administered by, a federal, state, or local governmental agency;
(2) Publishers, broadcasters, printers, or other persons engaged in the dissemination of information or reproduction of printed or pictorial matters who publish, broadcast, or reproduce material without knowledge of its deceptive character; or
(3) Actions or appeals pending (a) on December 25, 1969, under the Uniform Deceptive Trade Practices Act as such act existed immediately prior to March 25, 1974, or (b) under such act as amended and sections 87-303.01 to 87-303.09 on March 25, 1974.
(b) Subdivisions (a)(2) and (a)(3) of section 87-302 do not apply to the use of a service mark, trademark, certification mark, collective mark, trade name, or other trade identification that was used and not abandoned before December 25, 1969, if the use was in good faith and is otherwise lawful except for the Uniform Deceptive Trade Practices Act.
(c) The Uniform Deceptive Trade Practices Act shall apply to deceptive trade practices conducted in whole or in part within the State of Nebraska against residents or nonresidents of this state. The act shall also apply to deceptive trade practices conducted outside of Nebraska against residents of this state if there is a direct connection to any deceptive trade practices conducted in whole or in part within this state.
Source:Laws 1969, c. 855, § 4, p. 3224; Laws 1974, LB 327, § 12; Laws 2008, LB781, § 9.
87-305. Act, how construed.
The Uniform Deceptive Trade Practices Act shall be construed to effectuate its general purpose to make uniform the law of those states which enact it.
Source:Laws 1969, c. 855, § 5, p. 3224; Laws 1974, LB 32
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