40-3-109. Notice of activity and consent to service of process.
Each multilevel distribution company numbering among its participants any resident of this state shall file with the state's attorney general a statement giving notice of this fact and designating the secretary of state of this state its agent for service of process for any alleged violation of this act. The written notice shall further set forth the intention of the multilevel distribution company to abide by the provisions of this act. Compliance with this section shall not subject any multilevel distribution company to the provisions or consequences of any other statute of this state.
40-3-110. Secretary of state agent for service of process for violations.
Any multilevel distribution company, which fails to comply with W.S. 40-3-109 is deemed to have thereby appointed the secretary of state its agent for service of process for any alleged violation of this act.
(a) If the attorney general has reason to believe that a person has engaged in activity which violates the provisions of this act, he shall make an investigation to determine if this act has been violated, and, to the extent necessary for this purpose, may administer oaths or affirmations, and, upon his own motion or upon request of any party, may subpoena witnesses, compel their attendance, adduce evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of admissible evidence.
(b) If the person's records are located outside this state, the person at his option shall either make them available to the attorney general at a convenient location within this state or pay the reasonable and necessary expenses for the attorney general or his representative to examine them at the place where they are maintained. The attorney general may designate representatives, including comparable officials of the state in which the records are located, to inspect them on his behalf.
(c) Upon failure without lawful excuse to obey a subpoena or to give testimony and upon reasonable notice to all persons affected thereby, the attorney general may apply to the district court for an order compelling compliance.
(a) Service of any type of process authorized by this act shall be personal within this state, but if such personal service cannot be obtained, substituted service may be made in the following manner:
(i) By service as provided by W.S. 40-3-109 and 40-3-110;
(ii) By service on the secretary of state;
(iii) Personal service without the state;
(iv) By registered or certified mail to the last known place of business, residence or abode of such persons for whom it is intended;
(v) As to any person other than a natural person, in the manner provided in the rules of civil procedure as if a complaint or other pleading which institutes a civil action has been filed; or
(vi) By such service as a district court may direct in lieu of personal service within this state.
An action under this act may be brought in the district court of the county in which the alleged violator resides or has his place of business or in the district court of Laramie county, Wyoming.
40-3-114. Injunctive relief against violations; remedy not exclusive.
The attorney general may, whenever it appears to him that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this act or any rule or order hereunder, bring an action in the name of the people of the state in a district court to enjoin the acts or practices or to enforce compliance with this act or any rule or order hereunder. Upon a proper showing, a permanent or preliminary injunction or restraining order shall be granted. The court shall not require the attorney general to post a bond. This section is not deemed to be exclusive of the remedies available to the state and the criminal penalties found in this act may also apply to individuals who are the subject of an action brought under this section.
The attorney general, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than five thousand dollars ($5,000.00) per violation from any person who violates the terms of an injunction issued under W.S. 40-3-114.
40-3-116. Acceptance of assurance of voluntary compliance authorized.
In the enforcement of this act, the attorney general may accept an assurance of voluntary compliance with respect to any act or practice alleged to be violative of this act from any person who has engaged in, is engaging in or is about to engage in such act or practice.
The court shall retain jurisdiction in any case where an injunction is entered or a consent agreement is reached or an assurance of voluntary compliance is agreed upon.
40-3-118. Additional relief authorized; appointment of receiver.
The court may make such additional orders or judgments as may be necessary to restore to any person in interest any monies or property, real or personal, which the court finds to have been acquired by means of any act or practice committed in violation of this act. Such additional relief may include the appointment of a receiver whenever it appears to the satisfaction of the court that the defendant threatens or is about to remove, conceal or dispose of his property to the damage of persons to whom restoration would be made under this act.
40-3-119. Receiver's power to acquire and dispose of property.
Any receiver appointed pursuant to W.S. 40-3-118 has the power to sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, monies and effects, land and tenements, books, records, documents, papers, choses in action, bills, notes and property of every description derived in violation of this act by any multilevel distribution company or any distributor in any multilevel distribution marketing plan sponsored by such company, including property which has been commingled with company or distributor property, if it cannot be identified in kind because of such commingling, and to sell, convey and assign the same and hold and dispose of the proceeds thereof under the direction of the court.
40-3-120. Civil penalty for willful violation; willful violation defined.
In any action brought pursuant to this act, if the court finds that any person has engaged in prohibited activities in willful violation of or in reckless disregard for any provision of this act, the attorney general or county attorney in any county in which the violation occurred, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than two thousand dollars ($2,000.00) per violation. For purposes of this section, a willful or reckless disregard occurs when the party committing the violation knew or should have known that his conduct was a violation of this act.
40-3-121. Property acquisition and disposition remedy available in action for private remedy.
The remedy provided by W.S. 40-3-119 is available to any person in any action brought for a private remedy against any multilevel distribution company or any distributor in the multilevel distribution marketing plan sponsored by the company.
40-3-122. Penalties for violations; other criminal remedies unimpaired.
Any person who willfully violates any provision of this act, or who willfully violates any rule or order under this act, shall upon conviction be fined not more than five hundred dollars ($500.00) or imprisoned in a county jail for not more than one (1) year, or be punished by both such fine and imprisonment, but no person may be imprisoned for the violation of any rule or order if he proves that he had no knowledge of the rule or order. Nothing in this act limits the power of the state to punish any person for any conduct which constitutes a crime under any other statute.
No action shall be maintained to enforce any liability created under this act unless brought before the expiration of three (3) years after the act or transaction constituting the violation or the expiration of one (1) year after the discovery by the plaintiff of the fact constituting the violation.
40-3-124. Causes of action under other law unimpaired.
Nothing in this act shall in any way affect causes of action arising under other laws of this state or under the common law brought by any private person.
If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid in one (1) or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
40-4-101. What constitutes unfair discrimination; penalty; exceptions; definitions.
(a) Any person, firm, corporation, foreign or domestic, or other entity doing business in the state of Wyoming shall not:
(i) Make, enter into, form or become a party to any plan, contract, agreement, conspiracy, asset acquisition, consolidation, merger or combination of any kind whatsoever to prevent or substantially lessen competition, create a monopoly or to control or influence production or prices thereof; or
(ii) Repealed By Laws 2009, Ch. 172, § 2.
(iii) Repealed By Laws 2009, Ch. 172, § 2.
(iv) Monopolize, attempt to monopolize or combine or conspire to monopolize any part of trade or commerce.
(b) Any person, firm, corporation or other entity violating subsection (a) of this section is guilty of unfair discrimination and any agreement, contract, whether express or implied, or any provision of an agreement or contract violating subsection (a) of this section is illegal and void to the extent it violates subsection (a) of this section.
(c) This chapter shall not:
(i) Repealed By Laws 2009, Ch. 172, § 2.
(ii) Repealed By Laws 2009, Ch. 172, § 2.
(iii) Prevent the sale of goods at commercial discounts customary in the sale of the goods;
(iv) Prohibit cooperative agreements for antitrust exceptions approved and operating pursuant to W.S. 35-24-101 through 35-24-116;
(v) Prohibit the development, agreement on and use of standards designed to permit or encourage competition or interoperability among products or services, provided the standards do not include provisions fixing or colluding on the prices or colluding to prevent competition by limiting the availability of the products or services;
(vi) Prohibit any person, firm, corporation or other entity from entering into any agreement or contract with a customer which specifies the price charged, or the services furnished, to the customer, or which gives discounts or additional services to the customer for purchasing specified volumes or multiple products of the same or similar product or service; or
(vii) Prohibit any person, firm, corporation or other entity from offering a customer loyalty program.
(d) As used in this chapter, "this act" means W.S. 40-4-101 through 40-4-123.
(a) Any person, firm, corporation or other entity violating any of the provisions of this act shall be fined in any sum not more than fifty thousand dollars ($50,000.00) per violation of this act, or by imprisonment in the county jail not exceeding one (1) year, or both.
(b) The district attorney may enforce criminal violations of this act against any person, firm, corporation or entity.
Nothing in this act shall be construed as repealing any other act or part of an act, but the remedies herein provided shall be cumulative to all other remedies, provided by law.
40-4-107. Sale at less than cost prohibited; cost defined.
(a) It shall be unlawful for any person, partnership, firm, corporation, joint-stock company, or other association engaged in business within this state, to sell, offer for sale or advertise for sale any article or product, at less than the cost thereof to such vendor, or give, offer to give or advertise the intent to give away any article or product for the purpose of injuring competitors and destroying competition.
(b) The term cost as applied to production or manufacturing is hereby defined as including the cost of raw materials and labor and as applied to distribution cost shall mean the invoice or replacement cost, whichever is lower, of the article or product to the distributor and vendor plus any freight charges, all applicable federal, state and local taxes and any charges imposed by federal, state or local government that are not taxes that are paid by the distributor and vendor and are not included in the invoice cost.
(c) Repealed By Laws 2009, Ch. 172, § 2.
40-4-109. Proof of intent; cost survey as evidence of cost.
In any injunction proceeding or in the prosecution of any person as officer, director or agent, it shall be sufficient to allege and prove the unlawful intent of the person, firm or corporation for whom or which he acts. Where a particular trade or industry, of which the person, firm or corporation complained against is a member, has an established cost survey for the locality and vicinity in which the offense is committed, the said cost survey shall be deemed competent evidence to be used in proving the costs of the person, firm or corporation complained against within the provisions of this act.
40-4-110. Persons, agreements and transactions exempted from W.S. 40-4-107 and 40-4-109.
(a) The provisions of W.S. 40-4-107 and 40-4-109 shall not apply to any sale made:
(i) In closing out in good faith the owner's stock or any part thereof for the purpose of discontinuing his trade in any such stock or commodity, and in the case of the sale of seasonal goods or to the bona fide sale of perishable goods to prevent loss to the vendor by spoilage or depreciation, provided notice is given to the public thereof;
(ii) When the goods are damaged or deteriorated in quality, and notice is given to the public thereof;
(iii) By an officer acting under the orders of any court;
(iv) In an endeavor made in good faith to meet the prices of a competitor selling the same or similar article or product in the same locality or trade area;
(v) When the goods are sold for promotional purposes at a special sale of limited duration including but not limited to a grand opening sale, an annual anniversary sale, an annual customer appreciation sale or a community, neighborhood or mall wide sale;
(vi) In a sale of limited duration to reduce inventory, dispose of slow selling items or dispose of items replaced or to be replaced by new models;
(vii) Of any products in a class of products where the prices are identical for the same volume throughout the class provided the total revenues from all the sales of products of that class by the vendor exceed the costs as defined in W.S. 40-4-107. For pharmaceuticals, for the purposes of this subsection, prices are identical if they are identical for a supply for a defined period of time even though the physical quantities of pharmaceuticals may be different.
(b) Any person, firm or corporation who performs work upon, renovates, alters or improves any personal property belonging to another person, firm or corporation, shall be construed to be a vendor within the meaning of this act.
(c) W.S. 40-4-107 through 40-4-110 shall not apply to any person entering into a cooperative arrangement for antitrust exceptions approved pursuant to W.S. 35-24-101 through 35-24-116.
40-4-114. Enjoining violations; recovery of damages.
(a) Any person, firm, private corporation or trade association, having a reasonably foreseeable physical and economic causal nexus to the specific act or acts alleged to be a violation, may maintain an action to enjoin a continuance of any act or acts in violation of this act.
(b) Any injured person may maintain an action for violation of this act against the alleged violator to recover the actual damages sustained by the injured person together with reasonable attorneys fees and costs.
(c) Repealed By Laws 2009, Ch. 172, § 2.
(d) Repealed By Laws 2009, Ch. 172, § 2.
(e) Repealed By Laws 2009, Ch. 172, § 2.
(f) Repealed By Laws 2009, Ch. 172, § 2.
(g) Repealed By Laws 2009, Ch. 172, § 2.
40-4-114.1. Civil investigations by the attorney general.
(a) Whenever the attorney general has probable cause to believe that any person, firm, corporation or other entity, whether foreign or domestic, has engaged in or is engaging in a violation of any provision of this act or of any provision of federal antitrust law that may be enforced by the attorney general, the attorney general may initiate an investigation. As part of any investigation under this section, the attorney general may administer oaths and affirmations, subpoena witnesses, documents or other matters, propound interrogatories to be answered in writing under oath and collect evidence. Any interrogatory or subpoena served under this subsection shall inform the party served of the right to file a petition as provided by subsection (b) of this section.
(b) Not later than five (5) business days after the service of any interrogatory or subpoena or at any time before the return date specified in the interrogatory or subpoena, the party served under this section may file in the district court in the county in which the party resides, the district court in the county where the party transacts business or the district court in Laramie county a petition for an order modifying or setting aside the interrogatory or subpoena. Any petition filed under this subsection shall be served upon the attorney general. The petitioner may raise any objection or privilege that would be available under this act or upon service of a subpoena in a civil action.
(c) If any matter that the attorney general seeks to obtain by subpoena is not located within Wyoming and is not reducible to electronic reproduction and transmission, the party subpoenaed may make the matter available to the attorney general to examine the matter at the place where it is located. The attorney general may designate representatives, including officials of the state in which the matter is located, to inspect the matter on the attorney general's behalf. The attorney general may respond to similar requests from officials of other states and may inspect a matter on their behalf.
(d) The attorney general may apply to the district court for an order compelling compliance of any party who fails to obey a subpoena or answer an interrogatory issued under this section without lawful excuse and upon reasonable notice to all persons affected by the subpoena or interrogatory.
(e) The attorney general may request that an individual who refuses to comply with a subpoena or answer an interrogatory on the grounds that the testimony or matter may incriminate the individual be ordered by the court to provide the testimony or matter. Except for a prosecution for perjury, an individual who complies with a court order to provide testimony or matter after asserting a privilege against self-incrimination to which the individual is entitled by law shall not have the testimony or matter provided, or evidence derived therefrom, or received against the individual used in any criminal investigation or proceeding.
(f) Any person, firm, corporation or other entity, whether foreign or domestic, upon whom an interrogatory or subpoena is served pursuant to this section shall comply with the terms of the interrogatory or subpoena unless otherwise provided by this section or by order of the district court.
(g) Any person who fails to appear with the intent to avoid, evade or prevent compliance, in whole or in part, with any investigation under this act or who removes from any place, conceals, withholds, mutilates, alters, destroys or by any other means falsifies any matter or documentary material in the possession, custody or control of any person subject to the request or subpoena, or who knowingly conceals any relevant information with the intent to avoid, evade or prevent compliance shall be liable for a civil penalty as provided in this subsection. The attorney general may, upon petition to the court, recover a civil penalty not to exceed twenty-five thousand dollars ($25,000.00). If civil penalties are assessed in or as the result of any litigation, the attorney general is entitled to reasonable attorney fees and costs.
(h) Whenever criminal or civil intelligence, records of investigations, investigative information or any other information held by any state or federal agency is available to the attorney general on a confidential or restricted basis, the attorney general may obtain and use the information unless otherwise prohibited by law. Any records of investigations or intelligence or investigative information that are exempt from disclosure under the Public Records Act shall remain confidential and exempt from disclosure under that act.
(j) Any written response, testimony or document obtained by the attorney general under this section or any information derived directly or indirectly from any written response, testimony or document obtained by the attorney general shall be deemed records of investigations and shall be exempt from disclosure under the Public Records Act.
40-4-114.2. Civil enforcement by the attorney general.
(a) Whenever the attorney general has reasonable cause to believe that any person, firm, corporation or other entity, foreign or domestic, has engaged in, is engaging in or is about to engage in any action or practice that is unlawful under this act, the attorney general may bring an action in the name of the state of Wyoming against that person, firm, corporation or entity to:
(i) Obtain a declaratory judgment that the action or practice violates the provisions of this act;
(ii) Enjoin any action or practice that violates the provisions of this act by issuing a temporary restraining order, an ex parte temporary restraining order or a preliminary or permanent injunction, without bond;
(iii) Recover a civil penalty not to exceed fifty thousand dollars ($50,000.00) for each violation of this act or of any injunction, judgment or consent agreement issued or entered into under this act;
(iv) Obtain an order requiring divestiture of any assets:
(A) Acquired in violation of W.S. 40-4-101 and after the court determines that divestiture is necessary to avoid the creation or continuation of a monopoly or to avoid any likely substantial lessening of competition that results from a transaction found to be in violation of W.S. 40-4-101; or
(B) To restore competition to any line of Wyoming commerce that has been eliminated by a violation of W.S. 40-4-101.
(v) Recover actual damages or restitution on behalf of the state and its agencies that are injured either directly or indirectly by reason of any violation of this act.
(b) The attorney general may bring a civil action in the name of the state of Wyoming as parens patriae on behalf of any person residing within Wyoming to secure damages or restitution for losses incurred directly or indirectly because of any violation of this act. For any action to be initiated under this subsection, the attorney general shall give notice to all persons on whose behalf the action would be initiated by publication or other means specified by the court. Any person on whose behalf a civil action would be brought may elect to have their claims excluded from the civil action by filing a notice of election with the court within the time specified in the notice by the attorney general. Any person who is represented by the attorney general in a civil action under this subsection who fails to submit a timely notice of election and for which a final judgment has been issued shall be precluded from asserting any claim or initiating any civil action that could have been brought based on the facts alleged or proven in the attorney general's action under this subsection.
(c) The attorney general shall recover the costs of any investigation, expert costs and reasonable attorney fees and costs if successful in any civil action initiated under this section.
(d) In lieu of initiating or continuing an investigation or civil action, the attorney general may accept and enter into a consent agreement with respect to any action or practice alleged to violate this act. Any consent agreement may include a stipulation for the payment of civil penalties as authorized in this act, reimbursement of the attorney general's reasonable expenses, costs and attorney fees, the payment of restitution and actual damages for Wyoming residents with an interest in the consent agreement or an agreement to abide by any injunctive provisions or prohibitions.
(e) Any civil action brought under this section may be brought in the district court of the county in which any party resides or has a principal place of business or in the district court of Laramie county.
(f) In addition to any action authorized by state law, the attorney general may proceed under any provision of federal antitrust law to enforce the provisions of this act.
(g) This section shall apply only to actions initiated by the attorney general.