TRADE AND COMMERCE
REGULATION OF BUSINESS PRACTICES FOR CONSUMER PROTECTION
As used in this chapter, the following terms shall have the following meaning:
I. "Person" shall include, where applicable, natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entity.
II. "Trade" and "commerce" shall include the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this state.
III. "Documentary material" shall include the original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or recording, wherever situate.
IV. "Examination of documentary material" shall include the inspection, study, or copying of any such material, and the taking of testimony under oath or acknowledgement in respect of any such documentary material or copy thereof.
IV-a. "Gift certificate" means a promise given in exchange for payment to provide the bearer, upon presentation, goods or services in a specified amount.
V. "Going out of business sale" means any sale advertised, represented or held forth under the designation of: "going out of business," "close out," "quitting business," "discontinuance of business," "selling out," "liquidation," "lost our lease," "must vacate," "forced out," "removal," "branch store discontinuance sale," "building coming down," "end," "final days," "last days," "lease expires," "we give up sale," "we quit sale," "reorganization sale," or any other advertising or designation by any other expression similar to any of the foregoing giving notice to the public that the sale will precede the termination of a business or the abandonment of a business location.
Source. 1970, 19:1. 1994, 226:1. 2003, 193:1, eff. Jan. 1, 2004. 2017, 105:2, eff. Jan. 1, 2018.
358-A:2 Acts Unlawful.
It shall be unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state. Such unfair method of competition or unfair or deceptive act or practice shall include, but is not limited to, the following:
I. Passing off goods or services as those of another;
II. Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
III. Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another;
IV. Using deceptive representations or designations of geographic origin in connection with goods or services;
V. Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that such person does not have;
VI. Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;
VII. Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
VIII. Disparaging the goods, services, or business of another by false or misleading representation of fact;
IX. Advertising goods or services with intent not to sell them as advertised;
X. Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
X-a. Failing to disclose the legal name, street address, and telephone number of the business under RSA 361-B:2-a;
XI. Making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions; or
XII. Conducting or advertising a going out of business sale:
(a) Which lasts for more than 60 days;
(b) Within 2 years of a going out of business sale conducted by the same person at the same location or at a different location but dealing in similar merchandise;
(c) Which includes any goods, wares, or merchandise purchased or received 90 days prior to commencement of the sale or during the duration of the sale and which are not ordinarily sold in the seller's course of business;
(d) Which includes any goods, wares, or merchandise ordered for the purpose of selling or disposing of them at such sale and which are not ordinarily sold in the seller's course of business;
(e) Which includes any goods, wares, or merchandise consigned for the purpose of selling or disposing of them at such sale;
(f) Without conspicuously stating in any advertisement for any such sale, the date such sale is to commence or was commenced;
(g) Upon the conclusion of which, that business is continued under the same name or under a different name at the same location; or
(h) In a manner other than the name implies.
XIII. Selling gift certificates having a face value of $250 or less to purchasers which contain expiration dates. Gift certificates having a face value in excess of $250 shall expire when escheated to the state as abandoned property pursuant to RSA 471-C. Dormancy fees, latency fees, or any other administrative fees or service charges that have the effect of reducing the total amount for which the holder may redeem a gift certificate are prohibited. This paragraph shall not apply to season passes.
XIV. Pricing of goods or services in a manner that tends to create or maintain a monopoly, or otherwise harm competition, including the pricing of generic prescription drugs.
XV. Failure of a facility, as defined in RSA 161-M:2, or person to comply with the provisions of RSA 161-M regarding the senior citizens bill of rights.
XVI. Failing to deliver home heating fuel in accordance with a prepaid contract.
XVII. Charging or receiving, or soliciting to charge or receive, an unreasonable fee to prepare or aid any prospective applicant, applicant, or recipient in the procurement, maintenance, or securing of any aid or services from the United States Department of Veterans Affairs, the New Hampshire division of veterans services, or any other public agency. For the purpose of this paragraph, an "unreasonable fee" means a fee that is exorbitant and disproportionate to the services performed.
XVIII. Issuing clinical decision support alerts or similar notices, warnings, or announcements by means of electronic health record software or similar electronic means designed to increase prescriptions for scheduled drug products, in violation of the Anti-Kickback Statute 42 U.S.C. section 1320a-7b(b), or with the intent to defraud the United States pursuant to 18 U.S.C. section 371.
Source. 1970, 19:1. 1973, 383:2. 1986, 137:1. 1994, 226:2. 1996, 165:1. 1997, 302:1. 1999, 49:1. 2002, 276:1. 2003, 193:2. 2004, 228:1, eff. Aug. 10, 2004. 2014, 203:2 eff. Jan. 1, 2015; 300:5, eff. Jan. 1, 2015. 2016, 279:3, eff. July 1, 2017. 2017, 105:1, eff. Jan. 1, 2018. 2019, 273:7, eff. Sept. 17, 2019. 2020, 13:7, eff. July 16, 2020. 2021, 183:4, eff. Jan. 1, 2022.
358-A:3 Exempt Transactions; Etc.
The following transactions shall be exempt from the provisions of this chapter:
I. Trade or commerce that is subject to the jurisdiction of the bank commissioner, the director of securities regulation, the insurance commissioner, the public utilities commission, the financial institutions and insurance regulators of other states, or federal banking or securities regulators who possess the authority to regulate unfair or deceptive trade practices. This paragraph includes trade or commerce under the jurisdiction of, and regulated by, the bank commissioner pursuant to RSA 361-A, relative to retail installment sales of motor vehicles.
III. Trade or commerce of any person who shows that such person has had served upon such person by the Federal Trade Commission a complaint pursuant to 15 U.S.C. 45(b) relating to said trade or commerce until the Federal Trade Commission has either dismissed said complaint, secured an assurance of voluntary compliance, or issued a cease and desist order relating to said complaint pursuant to 15 U.S.C. 45(b).
IV. Publishers, broadcasters, printers, or other persons engaged in the dissemination of information or reproduction of printed or pictorial matter who publish, broadcast, or reproduce material without knowledge of its deceptive character.
IV-a. Transactions entered into more than 3 years prior to the time the plaintiff knew, or reasonably should have known, of the conduct alleged to be in violation of this chapter; provided, however, that this section shall not ban the introduction of evidence of unfair trade practices and deceptive acts prior to the 3-year period in any action under this chapter.
IV-b. Violations of RSA 205-A which have occurred more than 3 years prior to the complaint alleged to be in violation of this chapter.
V. The burden of proving exemptions from the provisions of this chapter by reason of paragraphs I, II, III, IV and IV-a of this section shall be upon the person claiming the exemption.
Source. 1970, 19:1. 1973, 383:3, 4. 1985, 172:1. 1996, 165:2-4. 2002, 276:2. 2004, 141:1, eff. July 23, 2004.
358-A:4 Administration; Enforcement.
I. The provisions of this chapter shall be administered and enforced by the consumer protection and antitrust bureau, department of justice established by RSA 21-M:8.
III. (a) Whenever the attorney general has reason to believe that trade or commerce declared unlawful by this chapter has been, is being or is about to be conducted by any person, the attorney general may bring an action in the name of the state against such person to restrain by temporary or permanent injunction the use of such trade or commerce and may petition the court for an order of restitution of money or property to any person or class of persons injured thereby. The action may be brought in the superior court of the county in which the person allegedly in violation of this chapter resides or in which the principal place of business is located, or, with the consent of the parties or if the person is a nonresident and has no place of business within the state, in the superior court of Merrimack county.
(b) Upon a finding that any person has engaged or is engaging in any act or practice declared unlawful by this chapter, the court may make any necessary order or judgment and may award to the state civil penalties up to $10,000 for each violation of this chapter. No such order shall require the payment of civil penalties until the process of appeal has been exhausted. Any such order or judgment shall be prima facie evidence in any action brought under RSA 358-A:10 that the respondent has engaged in an act or practice declared unlawful by this chapter. For the purpose of this section, the court shall determine the number of unlawful acts or practices which have occurred without regard to the number of persons affected thereby. It shall be an affirmative defense to the assessment of civil penalties that the defendant acted pursuant to a good faith misunderstanding concerning the requirements of this chapter.
III-a. In connection with any action brought under paragraph III, the attorney general may also petition the court to appoint a receiver to take charge of the business of any person during the course of litigation when the attorney general has reason to believe that such an appointment is necessary to prevent such person from continuing to engage in any act or practice declared unlawful by this chapter and of preserving the assets of said person to restore to any other person any money or property acquired by any unlawful act or practice. The receiver shall have the authority to sue for, collect, receive and take into the receiver's possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes and property of every description, including property with which such property has been mingled if it cannot be identified in kind because of such commingling derived by means of any unlawful act or practice, and to sell, convey and assign the same and hold, dispose and distribute the proceeds thereof under the direction of the court. Any person who has suffered damages as a result of the use of any unlawful act or practice and submits proof to the satisfaction of the court that such person has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent that the person has sustained out-of-pocket losses. In the case of a partnership or business entity, the receiver shall settle the estate and distribute the assets under the direction of the court. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments as may be required. In lieu of the foregoing procedure, the court may permit any person alleged to have violated this chapter to post a bond in a manner and in an amount to be fixed by the court. The bond shall be made payable to the state and may be distributed by the court only after a decision on the merits and the process of appeals has been exhausted.
IV. Any county attorney or law enforcement officer receiving notice of any alleged violation of this chapter shall immediately forward written notice of the same with any other information that the county attorney or law enforcement officer may have to the department of justice.
Source. 1970, 19:1. 1975, 417:1-3. 1979, 171:1. 1985, 300:7, I, 23, 30; 410:8. 1996, 165:5, 6, eff. Jan. 1, 1997.
At least 10 days prior to commencement of any action under RSA 358-A:4, the attorney general shall notify the person of the attorney general's intended action, and give the person an opportunity to confer with the attorney general, or agent, in person or by counsel or other representative as to the proposed action. Said notice shall be given by mail, postage prepaid, sent to the person's usual place of business, or, if none, to the person's last known address. Such notice need not be given if the attorney general has reason to believe that any potential recipient of such notice may after receipt thereof destroy or move or cause to be destroyed or cause to be moved any assets which might otherwise be available to claims of restitution, leave the state or cause material witnesses to leave the state, or take other action or omit to perform other duties to the immediate and irreparable harm of the public.
Source. 1970, 19:1. 1975, 417:4. 1996, 165:7, eff. Jan. 1, 1997.
I. Any person convicted of violating RSA 358-A:2 hereof shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
II. Any person who violates the terms of an injunction issued under RSA 358-A:4, III, shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person. For the purposes of this section, the court issuing said injunction shall retain jurisdiction.
III. Any person who subverts the intent and purposes of this chapter by filing false, misleading, or substantially inaccurate statements with the attorney general for the purposes of effecting prosecution under this chapter shall be guilty of a violation.
IV. If any person is found to have engaged in any act or practice declared unlawful by this chapter, the court may award to the state in any action brought under this chapter all legal costs and expenses. RSA 525:12 shall apply to civil actions commenced under this chapter.
Source. 1970, 19:1. 1973, 529:85. 1975, 417:5, eff. Aug. 15, 1975.
358-A:7 Assurance of Discontinuance.
Nothing contained in this chapter shall be construed as preventing the attorney general, in cases in which the attorney general is authorized to bring an action, from accepting in lieu thereof an assurance of discontinuance of any act or practice which violates this chapter. Such assurance may include a stipulation for the voluntary payment by the alleged violator of the costs of investigation by the attorney general, or of an amount to be held in escrow pending the outcome of an action, or of an amount to restore to any person any money or real or personal property which may have been acquired by such alleged violator, or all 3. Any such assurance of discontinuance shall be in writing and be filed with the superior court of Merrimack county. Matters thus closed may be reopened by the attorney general at any time it is in the public interest. Evidence of a violation of such assurance shall constitute prima facie evidence of an act or practice declared to be unlawful by this chapter in any action thereafter commenced by the attorney general.
Source. 1970, 19:1. 1996, 165:8, eff. Jan. 1, 1997.
358-A:8 Subpoena; Production of Books, Examination of Persons, Etc.
I. Authority of Attorney General. The attorney general shall have the power to subpoena and subpoena duces tecum in the name of the attorney general for the purposes of this chapter. Witnesses summoned by the attorney general shall be paid the same fee and mileage that are paid witnesses in the superior court of the state. A subpoena or subpoena duces tecum of the attorney general may be served by any person designated in the subpoena or subpoena duces tecum to serve it. The attorney general may administer an oath or affirmation to any person and conduct hearings in aid of any investigation. The attorney general may also require any person to make a statement in writing under oath concerning any matter under investigation provided that the due date for receipt of such a statement shall be no sooner than 10 calendar days after receipt of such demand. Any testimony or statement given by any person so sworn shall be subject to the pains and penalties of perjury.
II. Without limiting the authority granted in paragraph I, whenever the attorney general believes any person to be or to have been in violation of this chapter, the attorney general may examine or cause to be examined for that purpose any books, records, papers, or other documentary materials, or may examine any person under oath and subject to the pains and penalties of perjury that the attorney general thinks may have knowledge of such violation. For such examination, the attorney general may require the person to appear at such person's place of residence, place of business or any place in this state.
(a) The attorney general shall serve notice of the time, place, and cause of said examination at least 10 days prior to the date of the examination. Service of any such notice may be made by:
(1) Delivering a duly executed copy of the notice to the person to be served or an agent authorized by law to receive service of process; or
(2) Delivering a duly executed copy of the notice to the person's principal place of business in this state, if any; or
(3) Registered mail, return receipt requested, to the person to be served, or an agent authorized by law to receive service of process. These limitations do not apply to a written statement required under paragraph I which can be required by a reasonable notice thereof.
(b) Such notice need not be given if the attorney general has reason to believe that any potential recipient of such notice may move, conceal, alter or destroy, or cause to be moved, concealed, altered or destroyed, any documents to which it refers, or move or conceal or cause to be moved or concealed any person whose testimony is sought pursuant thereto. In any of such cases, the notice served by the attorney general pursuant to this paragraph may require the immediate production or examination of any document or person therein referred to.
IV. Limitations. No such notice shall make improper or unreasonable requirements, nor require the production of privileged information.
V. Extension; Modification. At any time prior to the date specified in the notice, or within 21 days after the notice has been served, whichever period is shorter, the superior court may, upon motion for good cause shown, extend said reporting date, or modify or set aside the demand. The motion may be filed in the superior court of the county in which the person resides or in which the person's usual place of business is located, or in Merrimack county.
VI. Use of Information. Any information, testimony, or documentary material obtained under the authority of this section shall be used only for one or more of the following purposes:
(a) In connection with investigations instituted under this chapter or for the prosecution of legal proceedings instituted under this chapter or other provisions of the RSA; and
(b) In connection with any formal or informal program of or request for information exchange between the department of justice and any other local, state or federal law enforcement agency. However, no information or material obtained or used pursuant to the authority of this section shall be released publicly by any governmental agency except in connection with the prosecution of legal proceedings instituted under this chapter or other provisions of the RSA. In addition, any information, testimony or documentary material obtained or used pursuant to a protective order shall not be exchanged or released, as provided herein, publicly except in compliance with such protective order.
VII. Penalty. Any person who fails to comply with any notice served upon such person under this section shall be fined not more than $5,000.
Source. 1970, 19:1. 1975, 417:6-8. 1985, 300:7, I(a). 1996, 165:9-11, eff. Jan. 1, 1997.
358-A:9 Habitual Violation of Injunction.
Upon petition by the attorney general, the court may order, for habitual violation of injunctions issued pursuant to RSA 358-A:4, III, the dissolution, suspension, or forfeiture of franchise of any corporation, or the right of any foreign corporation to do business in the state.
Source. 1970, 19:1, eff. April 30, 1970.
358-A:10 Private Actions.
I. Any person injured by another's use of any method, act or practice declared unlawful under this chapter may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper. If the court finds for the plaintiff, recovery shall be in the amount of actual damages or $1,000, whichever is greater. If the court finds that the use of the method of competition or the act or practice was a willful or knowing violation of this chapter, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney's fees, as determined by the court. Any attempted waiver of the right to the damages set forth in this paragraph shall be void and unenforceable. Injunctive relief shall be available to private individuals under this chapter without bond, subject to the discretion of the court.
II. Upon commencement of any action brought under this section, the clerk of the court shall mail a copy of the complaint or other initial pleadings to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.
Source. 1970, 19:1. 1975, 417:9. 1981, 243:1. 1994, 226:3, eff. July 26, 1994.
358-A:10-a Class Actions.
I. Persons entitled to bring an action under RSA 358-A:10 may, if the unlawful act or practice has caused similar injury to numerous other persons, institute an action as representative or representatives of a class of persons who are residents of this state or whose cause of action arose within this state against one or more defendants as individuals or as representatives of a class or against one or more such defendants having a principal place of business within this state, and the petition shall allege such facts as will show that these persons or the named defendants specifically named and served with process have been fairly chosen and adequately and fairly represent the whole class, to recover actual damages as provided for in RSA 358-A:10. The court may require the plaintiff to prove such allegations, unless all of the members of the class have entered their appearance, and the court may also determine that it shall not be sufficient to prove such facts by the admissions of the defendants who have entered their appearance. In any action brought under this section, the court may order, in addition to actual damages, injunctive or other equitable relief and reasonable attorney's fees.
II. An action may be maintained as a class action if:
(a) The class is so numerous that joinder of all members is impracticable; and
(b) There are questions of law or fact common to the class; and
(c) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(d) The representative parties will fairly and adequately protect the interests of the class; and, in addition
(e)(1) The prosecution of a separate action by or against individual members of the class would create a risk of:
A. Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
B. Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: the interest of members of the class in individually controlling the prosecution or defense of separate actions; the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and the difficulties likely to be encountered in the management of a class action.
III. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. Such order may be conditional, and may be altered or amended before the decision on the merits.
IV. In any class action maintained other than under paragraph II(e)(2), the court shall direct to the members of the class the best notice practicable under the rules of court, which may include either individual notice or publication or both as determined by the court.
V. The judgment in an action maintained as a class action under paragraph II(e)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under paragraph II(e)(1) or (3), whether or not favorable to the class, shall include and specify or describe those who have requested inclusion and those who have not requested exclusion as provided in paragraph IV, and whom the court finds to be members of the class.
VI. When appropriate, an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class, and this section shall then be construed and applied accordingly.
VII. In the conduct of actions to which this section applies, the court may make appropriate orders:
(a) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
(b) Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
(c) Imposing conditions on the representative parties or on intervenors;
(d) Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;
(e) Dealing with similar procedural matters.
VIII. An action once determined to be a class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
IX. Upon commencement of any action brought under this section, the clerk of the court shall mail a copy of the complaint or other initial pleading to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.
X. (a) The judgment in an action maintained as a class action, whether or not favorable to the class, shall include and describe those to whom notice was directed, and whom the court finds to be members of the class and, in an action in which a money judgment is sought, shall not affect the rights of any person who was not included through use of the judgment by way of collateral estoppel or otherwise. In an action in which a money judgment is sought and which is determined in favor of the members of the class, after proof by each member of the existence and extent of that member's actual monetary damage, judgment shall be entered stating the amount awarded to each such member, and the total amount of damages assessed against the defendant shall not exceed the aggregate of the total amount awarded to each such member plus legal expenses and costs as awarded by the court.
(b) If the court renders judgment in favor of a plaintiff class, the court may order the defendant to pay damages directly to members of the class, or order the defendant to pay damages into the court and require each member of the class to file a claim with the court. If within one year after the date of final judgment, any plaintiff fails to file a claim for damages actually awarded the plaintiff or cannot be located despite diligent efforts by the parties, the amount of damages actually awarded the plaintiff will be refunded to the paying defendant.
(c) Any judgment awarding damages to one party against a second party in a class action or counterclaim therein may be set off against any other judgment awarding damages to the second party against the first party in such action or counterclaim.
Source. 1975, 417:10. 1996, 165:12, 13, eff. Jan. 1, 1997. 2010, 137:1, eff. Jan. 1, 2011.
358-A:11 Proof Required.
In order to prevail in any prosecution under this chapter, it is not necessary to prove actual confusion or misunderstanding.
Source. 1970, 19:1, eff. April 30, 1970.
358-A:12 Other Actions Saved.
This chapter does not affect unfair trade practices otherwise actionable at common law or under other statutes of this state.
Source. 1970, 19:1, eff. April 30, 1970.
358-A:13 Interpretation and Construction of Act.
It is the intent of the legislature that in any action or prosecution under this chapter, the courts may be guided by the interpretation and construction given Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), by the Federal Trade Commission and the federal courts.
Source. 1975, 417:11, eff. Aug. 15, 1975.