59-801. Restraint of trade or commerce; unlawful; penalty.

Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce, within this state, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a Class IV felony.

Source

Annotations

1. Contracts in violation of section

2. Contracts not in violation of section

3. Miscellaneous

1. Contracts in violation of section

A tying arrangement is an agreement by a party to sell one product, but only on the condition that the buyer also purchase a different, or tied, product, or agree that it will not purchase that product from another supplier. A tying arrangement violates Nebraska's unlawful restraint of trade act if the seller has appreciable economic power in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market. A plaintiff alleging an unlawful tying arrangement must produce evidence of the following elements: (1) the existence of two distinct products or services; (2) sufficient economic power on the part of the defendant in the tying market to appreciably restrain competition in the tied product market, combined with the exercise of such power to coerce the purchaser to buy both items; and (3) the amount of commerce affected is not insubstantial. Heath Consultants v. Precision Instruments, 247 Neb. 267, 527 N.W.2d 596 (1995).

Claim that contract for construction of educational television system was in violation of this section raised but not decided. Hamilton County Tel. Co. v. Northwestern Bell Tel. Co., 180 Neb. 1, 140 N.W.2d 834 (1966).

Monopolization in producing, selling, and distributing electricity is prohibited. State ex rel. Spillman v. Interstate Power Co., 118 Neb. 756, 226 N.W. 427 (1929).

A combination or conspiracy between two or more persons against any person, firm, or corporation to prevent competition, which is carried into effect, is in violation of this section. Marsh-Burke Co. v. Yost, 98 Neb. 523, 153 N.W. 573 (1915).

A combination to prevent competition in insurance comes within prohibition of this section. State v. American Surety Co., 91 Neb. 22, 135 N.W. 365, Ann. Cas. 1913B 973 (1912).

Agreement by lumber dealers to protect one another by asking higher price for same bill of lumber, or to divide territory and fix prices therein, is illegal and they can be enjoined. State v. Adams Lumber Co., 81 Neb. 392, 116 N.W. 302 (1908).

Provisions of Junkin Act were applicable to combination of grain dealers even though there was another special act covering them. State v. Omaha Elevator Co., 75 Neb. 637, 106 N.W. 979 (1906).

Under prior act, organization of lumber dealers to prevent competition was unlawful. Cleland v. Anderson, 66 Neb. 252, 92 N.W. 306 (1902), rev'd on other grounds, 75 Neb. 273, 105 N.W. 1092 (1905).

2. Contracts not in violation of section

Contract with agent to sell seed corn upon a commission basis did not violate this section. Bohy v. Pfister Hybrid Co., 179 Neb. 337, 138 N.W.2d 23 (1965).

Contract not to resell automobile without first offering it to vendor did not violate this section. Stanford Motor Co. v. Westman, 151 Neb. 850, 39 N.W.2d 841 (1949).

Refusal of dairy company to purchase milk from farmers that was hauled by plaintiff did not constitute violation of this section. Ploog v. Roberts Dairy Co., 122 Neb. 540, 240 N.W. 764 (1932).

Refusal to furnish first-run films to theatre, where entire output of first-run films was already under contract, did not show conspiracy to stifle competition. Goldberg v. Tri-States Theatre Corporation, 126 F.2d 26 (8th Cir. 1942).

3. Miscellaneous

A justifiable termination of a contractual relationship does not operate to create a liability, either under a contract theory or under the state antitrust statutes against one who terminates a contract. Mike Pratt & Sons, Inc. v. Metalcraft, Inc., 222 Neb. 333, 383 N.W.2d 758 (1986).

Amendment in 1937 to this section, excepting contracts under Fair Trade Act, declared unconstitutional. General Electric Co. v. J. L. Brandeis & Sons, 159 Neb. 736, 68 N.W.2d 620 (1955); McGraw Electric Co. v. Lewis & Smith Drug Co., Inc., 159 Neb. 703, 68 N.W.2d 608 (1955).

Where evidence fails to show an unlawful intent to conspire against and injure business of another by stifling competition action must fail for want of proof. Hompes v. Goodrich Company, 137 Neb. 84, 288 N.W. 367 (1939).

Indictment must allege that acts complained of were in restraint of trade within this state. Howell v. State, 83 Neb. 448, 120 N.W. 139 (1909).

Where agency agreement between insurance company and agency should have little or no effect on interests of policyholders, federal exemption from Sherman Act was not applicable. Allied Financial Services, Inc. v. Foremost Ins. Co., 418 F.Supp. 157 (D. Neb. 1976).