Can the consumer waive the Nebraska Consumer Protection Act in this contract, and does the Act even reach this deal?
The authorities checked do not answer the waiver question either way (there is no anti-waiver section and no Nebraska decision), and in most contracts it never matters, because three other filters end the claim first. FILTER ONE, the exemption. Neb. Rev. Stat. § 59-1617(1): the 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”, except as subsection (2) provides, which puts insurance-regulated transactions back under § 59-1602 and funeral directing, Agriculture and loan-broker transactions back under the whole Act. Section 59-1617 also provides that “No penalty or remedy shall result from a violation of the Consumer Protection Act except as expressly provided in such act.” Kuntzelman v. Avco Financial Services keeps it tied to the transaction: “We only hold, as we must from a reading of the statute, that Avco is exempt from the Act by virtue of the regulation by the Department of Banking and Finance of the specific transaction involved herein”, and Wrede v. Exchange Bank of Gibbon restates it, “while particular conduct is not immunized from the operation of the Consumer Protection Act merely because the actor comes within the jurisdiction of some regulatory body, immunity does arise if the conduct itself is also regulated.” FILTER TWO, the public interest. Nelson v. Lusterstone Surfacing Co.: “To be actionable under the CPA, therefore, we conclude that the unfair or deceptive act or practice must have an impact upon the public interest. The act is not available to redress a private wrong where the public interest is unaffected”, and “We hold that the CPA does not apply to transactions that do not affect the public interest.” FILTER THREE, the labor exclusion. Neb. Rev. Stat. § 59-1607 says “The labor of a human being shall not be a commodity or article of commerce”, and Moore v. Eggers Consulting Co. reads it as written (“No interpretation is necessary to ascertain the meaning of this plain, direct, and unambiguous statute.”) holding that because the Act excepts the labor of a human being, “Eggers failed to state a cause of action in alleging that Moore violated the Act by engaging in his employment recruiting business.” A business can sue: Neb. Rev. Stat. § 59-1609 gives the action to “Any person who is injured in his or her business or property”, “whether such injured person dealt directly or indirectly with the defendant”, and Arthur v. Microsoft Corp. says “We find no limitation on who may sue for violations of §§ 59-1602 to 59-1606 except that such violations must” affect the people of Nebraska. And the remedy is smaller than most people expect: the court “may in its discretion, increase the award of damages”, “except that such increased award for violation of section 59-1602 shall not exceed one thousand dollars.”
The trap
The waiver clause in an ordinary two-party contract is surplusage, not a shield, because the claim is usually dead before anyone reads it. The exemption reaches “any other regulatory body or officer acting under statutory authority of this state or the United States”, and in application the bar is near the floor: Wrede exempted a bank CERTIFICATE OF DEPOSIT on the strength of the Director of Banking's general duty to “constructively aid banks in maintaining proper banking standards and efficiency”, and Little v. Gillette exempted BOTH a bank and a REAL-ESTATE BROKERAGE and reversed a $10,900 fee award on that basis. And because § 59-1617(1) says “permitted, PROHIBITED, or regulated”, conduct that VIOLATES the regulator's own rules is still exempt. Second trap: the public interest is a pleading element, and a bilateral deal fails it. Nelson found that the sale of one used Jeep “affected no one other than the parties”. Third, and it is the one that misvalues cases by an order of magnitude: THE CONSUMER PROTECTION ACT HAS NO TREBLING. § 59-1609's enhancement is discretionary, tied to no multiplier, and capped at one thousand dollars for a § 59-1602 violation. Every “treble” reference near § 59-1609 in Nebraska law is a court describing the FEDERAL Clayton Act. The real exposure is the attorney fee. Fourth: the Uniform Deceptive Trade Practices Act is not a damages statute despite its name. Sid Dillon Chevrolet v. Sullivan holds that “by its own terms, § 87-303(a) only provides for equitable relief consistent with general principles of equity”, and Reinbrecht v. Walgreen Co. that “[t]he UDTPA, specifically § 87-303, does not provide a private right of action for damages.” Its one contract weapon, Neb. Rev. Stat. § 87-303.07, makes an induced sale or lease “unenforceable by the seller or lessor”, but Lindsay Int'l Sales & Serv., LLC v. Wegener holds it protects only buyers and lessees, so “other cat- egories of individuals—such as guarantors like Wegener and Pribil—are not.” Fifth, the structural trap: Neb. Rev. Stat. § 59-829 commands that where a Chapter 59 provision resembles a federal antitrust law “the courts of this state in construing such sections or chapter shall follow the construction given to the federal law by the federal courts”. So Noerr-Pennington applies (Salem Grain Co. v. Consolidated Grain & Barge Co.), and Ramaekers v. Creighton University still calls it what it is: “The NCPA was intended to be an antitrust measure to protect Nebraska consumers from monopolies and price- fixing conspiracies.” Do not advise on it as if it were an ordinary consumer-fraud statute.
29 authorities
- statuteNeb. Rev. Stat. § 59-1617enactment date not established
The words that state the rule
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
- statuteNeb. Rev. Stat. § 59-1617enactment date not established
The words that state the rule
No penalty or remedy shall result from a violation of the Consumer Protection Act except as expressly provided in such act.
- statuteNeb. Rev. Stat. § 59-1609enactment date not established
The words that state the rule
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
- statuteNeb. Rev. Stat. § 59-1609enactment date not established
The words that state the rule
except that such increased award for violation of section 59-1602 shall not exceed one thousand dollars
- statuteNeb. Rev. Stat. § 59-1607enactment date not established
The words that state the rule
The labor of a human being shall not be a commodity or article of commerce
- statuteNeb. Rev. Stat. § 59-1601enactment date not established
The words that state the rule
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 Nebraska
- statuteNeb. Rev. Stat. § 59-1612enactment date not established
The words that state the rule
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.
- statuteNeb. Rev. Stat. § 59-829enactment date not established
The words that state the rule
When any provision of sections 59-801 to 59-831 and sections 84-211 to 84-214 or any provision of Chapter 59 is the same as or similar to the language of a federal antitrust law, the courts of this state in construing such sections or chapter shall follow the construction given to the federal law by the federal courts.
- statuteNeb. Rev. Stat. § 87-303.07enactment date not established
The words that state the rule
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.
The words that state the rule
To be actionable under the CPA, therefore, we conclude that the unfair or deceptive act or practice must have an impact upon the public interest. The act is not available to redress a private wrong where the public interest is unaffected.
The words that state the rule
We cannot ignore this language and apply the CPA to isolated transactions between individuals that do not have an impact on consumers at large.
The words that state the rule
We emphasize that we do not here hold that every entity within the jurisdiction of a regulatory agency is exempt from the Act. We only hold, as we must from a reading of the statute, that Avco is exempt from the Act by virtue of the regulation by the Department of Banking and Finance of the specific transaction involved herein.
The words that state the rule
The teaching of Kuntzelman is that while particular conduct is not immunized from the operation of the Consumer Protection Act merely because the actor comes within the jurisdiction of some regulatory body, immunity does arise if the conduct itself is also regulated.
The words that state the rule
Section 59-1617 exempts both Gateway and the Bank from the provisions of the Consumer Protection Act and therefore any award of attorney fees under that act was inappropriate.
The words that state the rule
Under the provisions of § 59-1617 an installment loan by an industrial loan and investment company, regulated by the Nebraska Department of Banking and Finance, is exempt from the Consumer Protection Act
The words that state the rule
Section 59-1609 provides both a private right of action and a public right. We find no limitation on who may sue for violations of §§ 59-1602 to 59-1606 except that such violations must *599 directly or indirectly affect the people of Nebraska.
The words that state the rule
Section 59-1609 permits indirect purchasers to bring a civil action under the terms of the Act.
The words that state the rule
No interpretation is necessary to ascertain the meaning of this plain, direct, and unambiguous statute. Therefore, we agree with the district court and find that because *405 the Act excepts the labor of a human being, Eggers failed to state a cause of action in alleging that Moore violated the Act by engaging in his employment recruiting business.
- case900 N.W.2d 909Salem Grain Co. v. Consolidated Grain & Barge Co.Neb.decided 2017read it at the source ↗
The words that state the rule
we hold that Salem’s claim that appellees violated the NCPA is barred under the immunities extended by the Noerr- Pennington doctrine.
The words that state the rule
The NCPA was intended to be an antitrust measure to protect Nebraska consumers from monopolies and price- fixing conspiracies.
The words that state the rule
Further, by its own terms, § 87-303(a) only provides for equitable relief consistent with general principles of equity.
The words that state the rule
The UDTPA, specifically § 87-303, does not provide a private right of action for damages.
- case917 N.W.2d 133Lindsay Int'l Sales & Serv., LLC v. WegenerNeb.decided 2018read it at the source ↗
The words that state the rule
Applying the principle here, the fact that § 87-303.07 specifically lists buyers and lessees as those protected leads us to conclude that other cat- egories of individuals—such as guarantors like Wegener and Pribil—are not.
The words that state the rule
We hold that the CPA does not apply to transactions that do not affect the public interest. However, we affirm the jury verdict because we find no reversible error in submitting the fraudulent misrepresentation and fraudulent concealment theories to the jury.
The words that state the rule
Under the facts of this case, the transfer of the Jeep from appellants to appellee affected no one other than the parties to the transaction, and appellee has not shown a sufficient impact indirectly or directly on the public to qualify the transaction as an act or practice which is prohibited under § 59-1602.
The words that state the rule
Here, not only was the Bank of Gibbon heavily regulated by the state, but the form of certificate used was at least indirectly approved by virtue of the authority of the state, through the director of the Department of Banking and Finance, to constructively aid banks in maintaining proper banking standards and efficiency.
- statuteNeb. Rev. Stat. § 59-1617enactment date not established
The words that state the rule
(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.
The words that state the rule
Case No. 83-686 presents the question of whether the appellee’s attorney was properly awarded fees of $10,900 under the Nebraska Consumer Protection Act, § 59-1609.
The words that state the rule
Because issuance of the certificate was exempted from the purview of the Consumer Protection Act, the district court, if for no other reason, correctly determined that there had been no violation of the act.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.