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UNFAIR TRADE PRACTICES

In Nevada, the elements for a claim of deceptive trade practices are found in the following statutes:

NRS 598.0915 “Deceptive trade practice” defined.  A person engages in a “deceptive trade practice” if, in the course of his or her business or occupation, he or she:

1.  Knowingly passes off goods or services for sale or lease as those of another person.

2.  Knowingly makes a false representation as to the source, sponsorship, approval or certification of goods or services for sale or lease.

3.  Knowingly makes a false representation as to affiliation, connection, association with or certification by another person.

4.  Uses deceptive representations or designations of geographic origin in connection with goods or services for sale or lease.

5.  Knowingly makes a false representation as to the characteristics, ingredients, uses, benefits, alterations or quantities of goods or services for sale or lease or a false representation as to the sponsorship, approval, status, affiliation or connection of a person therewith.

6.  Represents that goods for sale or lease are original or new if he or she knows or should know that they are deteriorated, altered, reconditioned, reclaimed, used or secondhand.

7.  Represents that goods or services for sale or lease are of a particular standard, quality or grade, or that such goods are of a particular style or model, if he or she knows or should know that they are of another standard, quality, grade, style or model.

8.  Disparages the goods, services or business of another person by false or misleading representation of fact.

9.  Advertises goods or services with intent not to sell or lease them as advertised.

10.  Advertises goods or services for sale or lease with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity.

11.  Advertises goods or services as being available free of charge with intent to require payment of undisclosed costs as a condition of receiving the goods or services.

12.  Advertises under the guise of obtaining sales personnel when the purpose is to first sell or lease goods or services to the sales personnel applicant.

13.  Makes false or misleading statements of fact concerning the price of goods or services for sale or lease, or the reasons for, existence of or amounts of price reductions.

14.  Fraudulently alters any contract, written estimate of repair, written statement of charges or other document in connection with the sale or lease of goods or services.

15.  Knowingly makes any other false representation in a transaction.

16.  Knowingly falsifies an application for credit relating to a retail installment transaction, as defined in NRS 97.115.

NRS 598.0916 “Deceptive trade practice” defined.  A person engages in a “deceptive trade practice” when, in the course of his or her business or occupation, he or she disseminates an unsolicited prerecorded message to solicit a person to purchase goods or services by telephone and he or she does not have a preexisting business relationship with the person being called unless a recorded or unrecorded natural voice:

1.  Informs the person who answers the telephone call of the nature of the call; and

2.  Provides to the person who answers the telephone call the name, address and telephone number of the business or organization, if any, represented by the caller.

NRS 598.0917  “Deceptive trade practice” defined.  A person engages in a “deceptive trade practice” when in the course of his or her business or occupation he or she employs “bait and switch” advertising, which consists of an offer to sell or lease goods or services which the seller or lessor in truth may not intend or desire to sell or lease, accompanied by one or more of the following practices:

1.  Refusal to show the goods advertised.

2.  Disparagement in any material respect of the advertised goods or services or the terms of sale or lease.

3.  Requiring other sales or other undisclosed conditions to be met before selling or leasing the advertised goods or services.

4.  Refusal to take orders for the sale or lease of goods or services advertised for delivery within a reasonable time.

5.  Showing or demonstrating defective goods for sale or lease which are unusable or impractical for the purposes set forth in the advertisement.

6.  Accepting a deposit for the goods or services for sale or lease and subsequently switching the purchase order or lease to higher priced goods or services.

7.  Tendering a lease of goods advertised for sale or a sale of goods advertised for lease or tendering terms of sale or lease less favorable than the terms advertised.

NRS 598.0918  “Deceptive trade practice” defined.  A person engages in a “deceptive trade practice” if, during a solicitation by telephone or sales presentation, he or she:

1.  Uses threatening, intimidating, profane or obscene language;

2.  Repeatedly or continuously conducts the solicitation or presentation in a manner that is considered by a reasonable person to be annoying, abusive or harassing;

3.  Solicits a person by telephone at his or her residence between 8 p.m. and 9 a.m.;

4.  Blocks or otherwise intentionally circumvents any service used to identify the caller when placing an unsolicited telephone call; or

5.  Places an unsolicited telephone call that does not allow a service to identify the caller by the telephone number or name of the business, unless such identification is not technically feasible.

NRS 598.092  “Deceptive trade practice” defined.  A person engages in a “deceptive trade practice” when in the course of his or her business or occupation he or she:

1.  Knowingly fails to identify goods for sale or lease as being damaged by water.

2.  Solicits by telephone or door to door as a lessor or seller, unless the lessor or seller identifies himself or herself, whom he or she represents and the purpose of his or her call within 30 seconds after beginning the conversation.

3.  Knowingly states that services, replacement parts or repairs are needed when no such services, replacement parts or repairs are actually needed.

4.  Fails to make delivery of goods or services for sale or lease within a reasonable time or to make a refund for the goods or services, if he or she allows refunds.

5.  Advertises or offers an opportunity for investment and:

(a) Represents that the investment is guaranteed, secured or protected in a manner which he or she knows or has reason to know is false or misleading;

(b) Represents that the investment will earn a rate of return which he or she knows or has reason to know is false or misleading;

(c) Makes any untrue statement of a material fact or omits to state a material fact which is necessary to make another statement, considering the circumstances under which it is made, not misleading;

(d) Fails to maintain adequate records so that an investor may determine how his or her money is invested;

(e) Fails to provide information to an investor after a reasonable request for information concerning his or her investment;

(f) Fails to comply with any law or regulation for the marketing of securities or other investments; or

(g) Represents that he or she is licensed by an agency of the State to sell or offer for sale investments or services for investments if he or she is not so licensed.

6.  Charges a fee for advice with respect to investment of money and fails to disclose:

(a) That he or she is selling or offering to lease goods or services and, if he or she is, their identity; or

(b) That he or she is licensed by an agency of any state or of the United States to sell or to offer for sale investments or services for investments or holds any other license related to the service he or she is providing.

7.  Notifies any person, by any means, as a part of an advertising plan or scheme, that he or she has won a prize and that as a condition of receiving the prize he or she must purchase or lease goods or services.

8.  Knowingly misrepresents the legal rights, obligations or remedies of a party to a transaction.

9.  Fails, in a consumer transaction that is rescinded, cancelled or otherwise terminated in accordance with the terms of an agreement, advertisement, representation or provision of law, to promptly restore to a person entitled to it a deposit, down payment or other payment or, in the case of property traded in but not available, the agreed value of the property or fails to cancel within a specified time or an otherwise reasonable time an acquired security interest. This subsection does not apply to a person who is holding a deposit, down payment or other payment on behalf of another if all parties to the transaction have not agreed to the release of the deposit, down payment or other payment.

10.  Fails to inform customers, if he or she does not allow refunds or exchanges, that he or she does not allow refunds or exchanges by:

(a) Printing a statement on the face of the lease or sales receipt;

(b) Printing a statement on the face of the price tag; or

(c) Posting in an open and conspicuous place a sign at least 8 by 10 inches in size with boldface letters, specifying that no refunds or exchanges are allowed.

11.  Knowingly and willfully violates NRS 597.7118 or 597.7125.

12.  Knowingly takes advantage of another person’s inability reasonably to protect his or her own rights or interests in a consumer transaction when such an inability is due to illiteracy, or to a mental or physical infirmity or another similar condition which manifests itself as an incapability to understand the language or terms of any agreement.

NRS 598.0921  “Deceptive trade practice” defined.

1.  A person engages in a “deceptive trade practice” if, in the course of his or her business or occupation:

(a) He or she issues a gift certificate that expires on a certain date, unless either of the following is printed plainly and conspicuously on the front or back of the gift certificate in at least 10-point font and in such a manner that the print is readily visible to the buyer of the gift certificate before the buyer purchases the gift certificate:

(1) The expiration date of the gift certificate; or

(2) A toll-free telephone number accompanied by a statement setting forth that the buyer or holder of the gift certificate may call the telephone number to obtain the balance of the gift certificate and the expiration date of the gift certificate;

(b) He or she imposes upon the buyer or holder of a gift certificate a service fee, unless each of the following is printed plainly and conspicuously on the front or back of the gift certificate in at least 10-point font and in such a manner that the print is readily visible to the buyer of the gift certificate before the buyer purchases the gift certificate:

(1) The amount of the service fee;

(2) The event or events that will cause the service fee to be imposed;

(3) The frequency with which the service fee will be imposed; and

(4) If the service fee will be imposed on the basis of inactivity, the duration of inactivity, which must not be less than 3 continuous years of nonuse, that will cause the service fee to be imposed; or

(c) Regardless of the notice provided, he or she imposes upon the buyer or holder of a gift certificate:

(1) A service fee or a combination of service fees that exceed a total of $1 per month; or

(2) A service fee that commences or is imposed within the first 12 months after the issuance of the gift certificate.

2.  The provisions of this section do not apply to:

(a) A gift certificate that is issued as part of an award, loyalty, promotional, rebate, incentive or reward program and for which issuance the issuer does not receive money or any other thing of value;

(b) A gift certificate that is sold at a reduced price to an employer or nonprofit or charitable organization, if the expiration date of the gift certificate is not more than 30 days after the date of sale; and

(c) A gift certificate that is issued by an establishment licensed pursuant to the provisions of chapter 463 of NRS.

3.  As used in this section:

(a) “Gift certificate” means an instrument or a record evidencing a promise by the seller or issuer of the instrument or record to provide goods or services to the holder of the gift certificate for the value shown in, upon or ascribed to the instrument or record and for which the value shown in, upon or ascribed to the instrument or record is decreased in an amount equal to the value of goods or services provided by the issuer or seller to the holder. The term includes, without limitation, a gift card, certificate or similar instrument. The term does not include:

(1) An instrument or record for prepaid telecommunications or technology services, including, without limitation, a card for prepaid telephone services, a card for prepaid technical support services and an instrument for prepaid Internet service purchased or otherwise distributed to a consumer of such services, including, without limitation, as part of an award, loyalty, promotional or reward program; or

(2) An instrument or record, by whatever name called, that may be used to obtain goods or services from more than one person or business entity, if the expiration date is printed plainly and conspicuously on the front or back of the instrument or record.

(b) “Issue” means to sell or otherwise provide a gift certificate to any person and includes, without limitation, adding value to an existing gift certificate.

(c) “Record” means information which is inscribed on a tangible medium or which is stored in an electronic or other medium, including, without limitation, information stored on a microprocessor chip or magnetic strip, and is retrievable in perceivable form.

(d) “Service fee” means any charge or fee other than the charge or fee imposed for the issuance of the gift certificate, including, without limitation, a service fee imposed on the basis of inactivity or any other type of charge or fee imposed after the sale of the gift certificate.

NRS 598.0922  “Deceptive trade practice” defined.

1.  Except as otherwise provided in subsection 2, a person engages in a “deceptive trade practice” if the person advertises or conducts a live musical performance or production in this State through the use of a false, deceptive or misleading affiliation, connection or association between a performing group and a recording group.

2.  A person does not engage in a “deceptive trade practice” pursuant to subsection 1 if:

(a) The performing group is the authorized registrant and owner of a federal service mark comprising in whole or dominant part the mark or name of that group registered in the United States Patent and Trademark Office;

(b) At least one member of the performing group was a member of the recording group and has a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group;

(c) The live musical performance or production is identified in all advertising and promotion as a salute or tribute and the name of the performing group is not so closely related or similar to that used by the recording group that it would tend to confuse or mislead the public;

(d) The advertising does not relate to a live musical performance or production taking place in this State; or

(e) The performance or production is expressly authorized in writing by the recording group.

3.  As used in this section:

(a) “Performing group” means a vocal or instrumental group seeking to use the name of another group that has previously released a commercial sound recording under that name.

(b) “Person” means the performing group or its promoter, manager or agent. The term does not include the performance venue or its owners, managers or operators unless the performance venue has a controlling or majority ownership interest in and produces the performing group.

(c) “Recording group” means a vocal or instrumental group at least one of whose members has previously released a commercial sound recording under that group’s name and in which the member or members have a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group.

(d) “Sound recording” means a work that results from the fixation on a material object of a series of musical, spoken or other sounds regardless of the nature of the material object, such as a cassette tape, compact disc or phonograph album, in which the sounds are embodied.

NRS 598.0923  “Deceptive trade practice” defined.  A person engages in a “deceptive trade practice” when in the course of his or her business or occupation he or she knowingly:

1.  Conducts the business or occupation without all required state, county or city licenses.

2.  Fails to disclose a material fact in connection with the sale or lease of goods or services.

3.  Violates a state or federal statute or regulation relating to the sale or lease of goods or services.

4.  Uses coercion, duress or intimidation in a transaction.

5.  As the seller in a land sale installment contract, fails to:

(a) Disclose in writing to the buyer:

(1) Any encumbrance or other legal interest in the real property subject to such contract; or

(2) Any condition known to the seller that would affect the buyer’s use of such property.

(b) Disclose the nature and extent of legal access to the real property subject to such agreement.

(c) Record the land sale installment contract pursuant to NRS 111.315 within 30 calendar days after the date upon which the seller accepts the first payment from the buyer under such a contract.

(d) Pay the tax imposed on the land sale installment contract pursuant to chapter 375 of NRS.

(e) Include terms in the land sale installment contract providing rights and protections to the buyer that are substantially the same as those under a foreclosure pursuant to chapter 40 of NRS.   As used in this subsection, “land sale installment contract” has the meaning ascribed to it in paragraph (d) of subsection 1 of NRS 375.010.

NRS 598.0924  “Deceptive trade practice” defined.

1.  A provider or vendor of floral or ornamental products or services engages in a “deceptive trade practice” if the provider or vendor misrepresents the geographic location of its business by listing:

(a) A local telephone number in any advertisement or listing unless the advertisement or listing identifies the actual physical address, including the city and state, of the provider or vendor’s business.

(b) An assumed or fictitious business name in any advertisement or listing if:

(1) The name of the business misrepresents the provider or vendor’s geographic location; and

(2) The advertisement or listing does not identify the actual physical address, including the city and state, of the provider or vendor’s business.

2.  The provisions of this section do not apply to:

(a) A publisher of a telephone directory or any other publication or a provider of a directory assistance service that publishes or provides information about another business;

(b) An Internet website that aggregates and provides information about other businesses;

(c) An owner or publisher of a print advertising medium that provides information about other businesses;

(d) An Internet service provider; or

(e) An Internet service that displays or distributes advertisements for other businesses.

3.  This section does not create or impose a duty or an obligation on a person other than a vendor or provider described in subsection 1.

4.  As used in this section:

(a) “Floral or ornamental products or services” means floral arrangements, cut flowers, floral bouquets, potted plants, balloons, floral designs and related products and services.

(b) “Local telephone number” means a specific telephone number, including the area code and prefix, assigned for the purpose of completing local telephone calls between a calling party or station and any other party or station within a telephone exchange located in this State or its designated local calling areas. The term does not include long distance telephone numbers or toll-free telephone numbers listed in a local telephone directory.

NRS 598.0925  “Deceptive trade practice” defined. [Effective through June 30, 2015.]

1.  Except as otherwise provided in this section, a person engages in a “deceptive trade practice” when, in the course of his or her business or occupation, he or she:

(a) Makes an assertion of scientific, clinical or quantifiable fact in an advertisement which would cause a reasonable person to believe that the assertion is true, unless, at the time the assertion is made, the person making it has possession of factually objective scientific, clinical or quantifiable evidence which substantiates the assertion; or

(b) Fails upon request of the Attorney General to produce within 6 working days the substantiating evidence in his or her possession at the time the assertion of scientific, clinical or quantifiable fact was made.

2.  This section does not apply to general assertions of opinion as to quality, value or condition made without the intent to mislead another person.

NRS 598.0925  “Deceptive trade practice” defined. [Effective July 1, 2015.]

1.  Except as otherwise provided in this section, a person engages in a “deceptive trade practice” when, in the course of his or her business or occupation, he or she:

(a) Makes an assertion of scientific, clinical or quantifiable fact in an advertisement which would cause a reasonable person to believe that the assertion is true, unless, at the time the assertion is made, the person making it has possession of factually objective scientific, clinical or quantifiable evidence which substantiates the assertion; or

(b) Fails upon request of the Commissioner or Attorney General to produce within 6 working days the substantiating evidence in his or her possession at the time the assertion of scientific, clinical or quantifiable fact was made.

2.  This section does not apply to general assertions of opinion as to quality, value or condition made without the intent to mislead another person.

 

See elements for other claims at the Nevada Law Library

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator. Peers have named him an AV-Rated Lawyer, Best Lawyers, a Top 100 Super Lawyers in the Mountain States multiple years, and to the Legal Elite and Top Lawyers lists for many years. Mr. Young has been appointed a part time Judge, a Special Master to the Clark County, Nevada Business Court, as an arbitrator by the Nevada Supreme Court. He has been appointed as an arbitrator or mediator of well over 250 legal disputes from business disputes to personal injury matters. He has been named Best Lawyers for Arbitration. Mr. Young is a respected author of ten books, including A Litigator’s Guide to Federal Evidentiary Objections, A Litigator’s Guide to the Federal Rules of Evidence, and the Federal Court Civil Litigation Checklist.
Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.