NEW HAMPSHIRE CONSUMER PROTECTION ACT1
a. Purpose and scope
The New Hampshire Consumer Protection Act (the Act) regulates business
practices for consumer protection. The Act regulates a wide range of activities relating to
the sale, advertisement, and pricing of goods and services. The courts have identified
boundaries between the fraudulent or deceptive practices contemplated by the Act and
issues that are wholly contained within other areas of the law.2 In interpreting the Act,
New Hampshire courts are guided by the interpretation and construction given Section
5(a)(1) of the Federal Trade Commission Act3 by the Federal Trade Commission and
federal courts. New Hampshire courts are also guided by the interpretations given to
similar sections of the Massachusetts Consumer Protection Act.4, 5
The Act does not create strict liability, and courts have construed it as requiring
knowledge or intent on the part of any person alleged to be in violation of the Act. In
Kelton v. Hollis Ranch,6 the Court held that a seller‟s failure to disclose a material fact,
where such fact was not known to the seller and not readily discoverable, did not give
rise to a violation of the Act.7 In contrast, the Court in Beer v. Bennett8 found a violation
N.H. REV. STAT. ANN. § 358-A (2010).
See generally McNeal v. Lebel, 157 N.H. 458, 469-70, 953 A.2d 396, 405-06 (2008) (finding no
application of the Act where home builder failed to disclose information and to complete house on time);
Barrows v. Boles, 141 N.H. 382, 390, 687 A.2d 979, 986-87 (1996) (“An ordinary breach of contract claim
does not present an occasion for the remedies under the Consumer Protection Act.”); State v. Moran, 151
N.H. 450, 453-54, 861 A.2d 763, 766-67 (2004) (distinguishing between the defendant‟s failure to perform
under the contract and defendant‟s fraudulent inducement of consumer to pay for materials); Miami Subs
Corp. v. Murray Family Trust, 142 N.H. 501, 516, 703 A.2d 1366, 1375 (1997) (denying application of the
Consumer Protection Act in a dispute involving a partnership or joint venture relationship).
15 U.S.C. 45(a)(1).
MASS. GEN. LAWS ch. 93A (2010).
Herne v. Cooper Industries, 2005 U.S. Dist. LEXIS 24371, at *6 (2005).
Kelton v. Hollis Ranch, 155 N.H. 666, 927 A.2d 1243 (2007).
Id. at 668, 927 A.2d at 1246.
of the Act where the defendant “made representations, knowing he lacked sufficient
knowledge to substantiate them, to induce the plaintiff's purchase.”9
The Act does not cover transactions involving banking, securities, insurance, or
public utilities, as those areas are addressed by discrete regulatory bodies. To the extent
that the Federal Trade Commission is investigating or otherwise handling a complaint
against a person, the Act does not apply to that person.10 Publishers, broadcasters, and
printers of deceptive information are not liable under the Act, if they had no knowledge
of the deceptive nature of the information.11 A three year statute of limitations generally
applies to violations of the Act.12 The practice of law in New Hampshire is also exempt
from the provisions of the Act.13
In Bell v. Liberty Mutual Insurance Co.,14 the Court resolved a question regarding
the extent of the regulation required to exempt an industry from the Act.15 A regulated
industry is only exempt from the Act if the governing regulations are comprehensive and
carried out by a “statutorily authorized regulatory regime that protects consumers from
the same deception, fraud, and unfair trade practices as intended by [the Act].”16 In Bell,
the Court held that the regulation of the insurance industry is sufficiently comprehensive
to exempt insurance carriers from the Act.17
Beer v. Bennett, 160 N.H. 166, 993 A.2d 765 (2010).
Id. at 171, 993 A.2d at 769-70.
N.H. REV. STAT. ANN. § 358-A:3(III) (2010).
N.H. REV. STAT. ANN. § 358-A:3(IV) (2010).
N.H. REV. STAT. ANN. § 358-A:3(IV-a) (2010).
Rousseau v. Eshleman, 129 N.H. 306, 309, 529 A.2d 862, 864-65 (1987).
Bell v. Liberty Mut. Ins. Co., 146 N.H. 190, 776 A.2d 1260 (2001).
Id. at 193, 776 A.2d at 1262.
Id. (quoting Averill v. Cox, 145 N.H. 328, 332, 761 A.2d 1083, 1088 (2000)).
a. Authority of Attorney General
The Consumer Protection and Antitrust Bureau of the New Hampshire
Department of Justice has authority to enforce the provisions of the Act.18 Upon an
alleged violation of the Act, the Attorney General may bring an action on behalf of the
State, seeking injunctive relief and restitution to the consumer. The Attorney General
may petition the court to dissolve, suspend, or forfeit the franchise of any corporation
determined to be a habitual violator of injunctions issued pursuant to the Act.19
The venue for an action by the Attorney General is the superior court of the
county of residence or principal place of business of the person alleged to be in violation
of the Act. If such person is a nonresident and has no place of business in New
Hampshire, then venue is in the superior court of Merrimack County.20 The Attorney
General may, in lieu of bringing an action in superior court, accept an assurance of
discontinuance of any act or practice which violates the Act. The assurance of
discontinuance generally functions as a settlement between the State and the person
alleged to be in violation of the Act. Such an assurance may include payment by the
alleged violator of costs incurred by the Attorney General in investigating the matter, an
amount to be held in escrow pending the outcome of the action, an amount to be paid as
restitution to a consumer, or all three.21
The Attorney General must provide notice to a person alleged to be in violation of
the Act at least ten days prior to commencement of an action. This notice includes an
N.H. REV. STAT. ANN. § 358-A:4(I) (2010).
N.H. REV. STAT. ANN. § 358-A:9 (2010).
N.H. REV. STAT. ANN. § 358-A:4(III)(a) (2010).
N.H. REV. STAT. ANN. § 358-A:7 (2010).
opportunity for such person to confer with the Attorney General prior to commencement
of the action. This notice requirement may be waived if the Attorney General has reason
to believe that the notice may cause the recipient to move or destroy assets, leave the
state, cause material witnesses to leave the state, or otherwise take any actions which may
cause immediate and irreparable harm to the public.22
In an action by the Attorney General, the court may award to the State civil
penalties not to exceed $10,000 per violation of the Act. Payment of such a penalty is not
required until the appeals process has been exhausted.23 The Attorney General may also
petition the court to appoint a receiver to take charge of the business of any person
alleged to be in violation of the Act. In lieu of appointing a receiver, the court may
permit the person alleged to be in violation of the Act to post a bond payable to the State.
The bond may only be distributed to the State after a trial on the merits and exhaustion of
the appeals process. 24 If any person is found to be in violation of the Act, the court may
award to the State all legal costs and expenses incurred.25
Any natural person convicted of a violation under the Act, or who violates an
injunction issued pursuant to the Act, is guilty of a misdemeanor; any other person
committing such a violation is guilty of a felony. 26 In addition to the prohibited acts
enumerated,27 any subversion of the intent and purposes of the Act is also considered a
N.H. REV. STAT. ANN. § 358-A:5 (2010).
N.H. REV. STAT. ANN. § 358-A:4(III)(b) (2010).
N.H. REV. STAT. ANN. § 358-A:4(III)-a (2010).
N.H. REV. STAT. ANN. § 358-A:6(IV) (2010).
N.H. REV. STAT. ANN. § 358-A:6(I), (II) (2010).
See N.H. REV. STAT. ANN. § 358-A:2 (2010).
N.H. REV. STAT. ANN. § 358-A:6(III) (2010).
c. Civil investigation
The Attorney General has the power to issue subpoenas, oaths, and affirmations
for the purposes of investigating an alleged violation of the Act. 29 This power includes
the authority to examine any person or documents pursuant to such an investigation. The
Attorney General may require such a person to appear at the person‟s residence, place of
business, or any place within the state.30 The Attorney General must serve notice of such
an examination at least ten days prior to the date of the examination.31 This notice
requirement may be waived if the Attorney General has reason to believe that, upon
receipt of the notice, the recipient may move, alter, conceal, or destroy any of the
documents sought, or conceal any person whose testimony is sought. In such a case, the
notice may require immediate production or examination of any document or person
d. Private right of action
Any person injured by another‟s use of a practice prohibited by the Act may bring
an action for damages and equitable relief. If the plaintiff prevails in such an action,
recovery is the greater of actual damages or $1,000. If the court determines that the
violation was willful or knowing, it is required to award as much as three times actual
damages, but not less than two times actual damages.33 The prevailing plaintiff is also
awarded costs and reasonable attorney‟s fees.34 In Nault’s Auto Sales, Inc. v. American
Honda Motor Co.,35 the Court held that the private right of action applies to both natural
N.H. REV. STAT. ANN. § 358-A:8(I) (2010).
N.H. REV. STAT. ANN. § 358-A:8(II) (2010).
N.H. REV. STAT. ANN. § 358-A:8(III)(a) (2010).
N.H. REV. STAT. ANN. § 358-A:8(III)(b) (2010).
N.H. REV. STAT. ANN. § 358-A:10(I); Simpson v. Young, 153 N.H. 471, 476, 899 A.2d 216, 221 (2006).
N.H. REV. STAT. ANN. § 358-A:10 (2010).
Nault‟s Auto Sales, Inc., v. American Honda Motor Co., Acura Auto. Div., 148 F.R.D. 25 (1993).
persons and corporations.36 An action may be certified as a class action, pursuant to the
requirements of the Act.37
III. Recent cases
a. Publicity campaigns
In Green Mountain Realty Corp. v. Fifth Estate Tower, LLC,38 the New
Hampshire Supreme Court followed the federal courts‟ interpretation of the Federal
Trade Commission Act in determining that the Noerr-Pennington doctrine, which
protects political lobbying activities from liability under the Sherman Antitrust Act,39 was
applicable to the Act.40 The Court held that the defendant wireless service operator did
not violate the Act by disseminating postcards to the general electorate in opposition to a
ballot measure that would allow the plaintiff wireless service operator to construct a new
b. Measure of damages and prohibited acts
In Beer v. Bennett,42 the Court held that the trial court‟s award was an equitable
grant of rescission, rather than an award of actual damages. The trial court had ordered
the defendant to make payments amounting to a “refund of the purchase price and
shipping costs, plus payment of the plaintiff's reasonable air fare and expenses for
attendance at trial, and attorney's fees and costs.”43 Because the trial court‟s award was
equitable, there were no actual damages to be doubled or trebled pursuant to the “willful
Id. at 48.
N.H. REV. STAT. ANN. § 358-A:10-a (2010).
Green Mountain Realty Corp. v. The Fifth Estate Tower, LLC, 2010 N.H. LEXIS 129 (2010).
15 U.S.C. § 1 (2006).
Green Mountain Realty Corp., 2010 N.H. LEXIS 129, at *16.
Id. at *24.
Beer v. Bennett, 160 N.H. 166, 993 A.2d 765 (2010).
Id. at 168, 993 A.2d at 767.
or knowing violation” provision of the Act.44, 45 The Court declined to decide whether
the Act grants district courts the power to award rescission, but held that rescission was
properly ordered under the plaintiff‟s Uniform Commercial Code claim.46
The Court in Beer also described the “rascality test”, which is used in determining
“which commercial actions, not specifically delineated, are covered by the [Act].”47
“The test requires the plaintiff to show „that the defendant's acts attained a level of
rascality that would raise an eyebrow of someone inured to the rough and tumble of the
world of commerce.‟”48 Finally, the Court held that “even if the individual
representations could be read as literally true, the advertisement could still violate the
[Act] if it created an overall misleading impression.”49
c. Right to a jury trial
In Hair Excitement, Inc. v. L’Oreal U.S.A., Inc.,50 the Court held that claims under
the Act are not entitled to a trial by jury.51 The Court recognized that, although many
claims under the Act “ha[d] been tried before juries, we note that the issue of whether a
right to a jury trial existed was never raised or addressed in those cases.”52 To resolve the
question of the right to a jury trial, New Hampshire courts look to “the nature of the case
and the relief sought, and ascertain whether the customary practice included a trial by
N.H. REV. STAT. ANN. § 358-A:10(I) (2010).
Beer v. Bennett, 160 N.H. 166, 175, 993 A.2d 765, 772 (2010).
Id. at 174, 993 A.2d at 771-72.
Id. at 171, 993 A.2d at 769-70.
Id. at 171, 993 A.2d at 769-70 (quoting Hair Excitement, Inc. v. L‟Oreal U.S.A., Inc., 158 N.H. 363, 370,
965 A.2d 1032, 1039 (2009)).
Id. at 170, 993 A.2d at 768.
Hair Excitement, Inc. v. L‟Oreal U.S.A., Inc., 158 N.H. 363, 965 A.2d 1032 (2009).
Id. at 370, 965 A.2d at 1038.
jury before 1784.”53 The Court held that the Act “creates new statutory rights which did
not exist in New Hampshire common law in 1784 when this state adopted its
constitution.”54 “Moreover, nothing in the language of [the Act] specifically provides for
a right to a jury trial.”55
Id. at 368, 965 A.2d at 1037 (quoting Franklin Lodge of Elks v. Marcoux, 149 N.H. 581, 591, 825 A.2d
480, 489 (2003).
Id. at 368, 965 A.2d at 1037.