2006-564, JAMES LACHANCE & a. v. UNITED STATES SMOKELESS TOBACCO CO. & a.

No. 2006-564 Strafford

UST, Inc. We reverse and remand.

THE SUPREME COURT OF NEW HAMPSHIRE Marketing Company, United States Tobacco Manufacturing Company, and

United States Smokeless Tobacco Company, United States Tobacco Sales and

, of Dover (Christine M. Craig, of Manchester (Bruce W.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home class certification and granting judgment on the pleadings to the defendants, reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 appeal an order of the Superior Court (Fauver, J.), denying their motion for DUGGAN, J. The plaintiffs, James J. LaChance and Chad Crossan,

H. Samel on the brief, and Mr. Samel orally), for the defendants. Washington, D.C. and Los Angeles, California (Margaret M. Zwisler and Charles Felmly and Jennifer L. Parent on the brief), and Latham & Watkins, LLP, of McLane, Graf, Raulerson & Middleton, P.A.

on the brief, and Ms. Craig orally), for the plaintiffs. to press. Errors may be reported by E-mail at the following address: Shaheen & Gordon and D. Michael Noonan

UNITED STATES SMOKELESS TOBACCO CO. & a.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as claims were barred by our decision in Minuteman, LLC v. Microsoft Corp.

p. 2 judgment on the pleadings, arguing, among other things, that the plaintiffs’

moist snuff smokeless tobacco.” For their part, the defendants moved for moved to certify “a class of similarly situated New Hampshire purchasers of Over the course of litigating their case in superior court, the plaintiffs

purchase a lower-priced consumer product.” been limited and each plaintiff ha[d] been wrongfully denied the free choice to actual damages and non-economic harm because their “product choice ha[d]

harm competition.” The superior court “acknowledge[d] the legislature plaintiffs argued that, as a result of the defendants’ conduct, they sustained services in a manner that tends to create or maintain a monopoly, or otherwise

deceptive business acts and practices within the meaning of RSA 358-A.” The under the CPA. RSA 358-A:2, XIV makes unlawful the “[p]ricing of goods or w[ere] intended to constitute unfair and deceptive competition and unfair and the supply of moist snuff tobacco products[,] [acts which] constitute[d] and

358-A:2, XIV (Supp. 2006) provided the authority needed to bring their claims judgment on the pleadings, the plaintiffs argued, among other things, that RSA also are alleged to have “increase[ed] . . . the price and limit[ed] and reduc[ed] preliminary procedural issue. In their objection to the defendants’ motion for

II. Procedural Posture

retailers incentives to exclude competing brands from stores. The defendants Before reaching the parties’ substantive arguments, we must resolve a

antitrust litigation in another jurisdiction, see restrict the sale, advertising and display of competing brands, as well as gave racks from retail stores and entered into agreements with store retailers to plaintiffs, the defendants “intentionally and routinely” removed competitors’

not pursue their claims. The plaintiffs appeal both rulings. the defendants’ motion, ruling that the plaintiffs, as indirect purchasers, could N.H. 634 (2002). The superior court denied the plaintiffs’ motion and granted (CPA), see

across New Hampshire. Following a verdict unfavorable to the defendants in

affected the advertising and display of competing brands. According to the

the defendants also violated the New Hampshire Consumer Protection Act

The plaintiffs are purchasers of smokeless tobacco products from retailers tobacco products using in-store display racks and advertising mechanisms. The following facts appear in the record. The defendants sell smokeless excluded competitors, limited customers’ product choices, and negatively specifically, they contended that the defendants engaged in conduct that

generally RSA chapter 358-A (1995 & Supp. 2006). More

1148 (2003), the plaintiffs filed a civil action in the superior court, alleging that States Tobacco Co., 290 F.3d 768, 777 (6th Cir. 2002), cert. denied, 537 U.S.

I. Background the CPA. The defendants make two rejoinders. First, citing Derosia v. Warden,

p. 3 to avoid. See

358-A:2, XIV buttresses the argument that they may pursue their claims under In their memoranda, the plaintiffs, not unexpectedly, argue that RSA

bring their claims under the CPA.

case. This would be a waste of judicial resources, a result we typically attempt

have in determining whether the plaintiffs may

an opinion that would be essentially meaningless outside the context of this because we would be ignoring a critical statutory provision in order to render reference to RSA 358-A:2, XIV. That approach, however, is an empty one

XIV, what effect, if any, RSA 358-A:2, XIV should (2) Assuming this court should consider RSA 358-A:2,

Faced with this procedural posture, we could decide the case without their claims under the CPA; and

XIV in assessing whether the plaintiffs may bring

not come as a surprise to either side. (1) Whether this court should consider RSA 358-A:2, instance, how RSA 358-A:2, XIV affects the application of Minuteman so. Moreover, the issue was presented to the superior court, and thus should

consider arguments that have not been briefed. See The defendants’ first argument is well-taken. Generally, we do not

would be a waste of judicial resources and unnecessarily burden the parties respect to whether the plaintiffs may bring claims under the CPA. This, too,

Rochester School Bd. v. N.H. PELRB, 119 N.H. 45, 50 (1979).

A:2, XIV, it supports affirming the superior court’s judgment.

importance of RSA 358-A:2, XIV, we ordered the parties to submit However, the instant case is somewhat unusual in that we ordered the parties whether indirect purchasers may pursue claims. Recognizing the potential Derosia, 149 N.H. at 580. against class certification, but did not discuss whether it has any effect on

in their opening brief. Second, they contend that, even if we consider RSA 358that the plaintiffs waived consideration of RSA 358-A:2, XIV by failing to raise it N.H. State Prison, 149 N.H. 579, 580 (2003), among other cases, they contend

effects of RSA 358-A:2, XIV. The defendants cited it as part of their argument

concluded that “the plaintiffs’ claims are barred by Minuteman

In their opening brief, the plaintiffs did not address the applicability or

under the CPA by the specific language of [RSA 358-A:2, XIV]” but nevertheless expressly authorize[d] a plaintiff to bring an action for anticompetitive practices p. 4 In the wake of Illinois Brick laws and principles. Id and should be resolved under antitrust – as opposed to consumer protection – law). interpretation, we would review the matter de controversy that began gathering steam in 1977. At that time, in Illinois Brick

statutes. Elkins v. Microsoft Corp. Id and the District of Columbia have passed so-called Illinois Brick 4 purchasers may pursue their claims. For example, at least thirty-three states

1267 (N.J. 2005). These courts reason that antitrust-type claims are unique which specifically allows indirect purchaser actions, was preempted by federal Corp., 877 A.2d 267, 274 (N.J. Super. Ct. App. Div.), cert. denied, 884 A.2d since the issue of who may bring claims under the CPA is one of statutory antitrust and the consumer protection realms. See, e.g., Sickles v. Cabot purchasers, may bring a cause of action under the CPA – arises from a burdening the parties with additional steps in the litigation process. Moreover, has not. Other jurisdictions have ruled that Illinois Brick applies in both the ready for our consideration. Deciding it now will avoid unnecessarily, 817 A.2d 9, 18 (Vt. 2002). Our legislature statutes, permitting plaintiffs to bring their claims under state antitrust problem of allocating damages if indirect purchasers were allowed to bring suit. repealer

grappling with issues involving whether, and in what context, indirect

U.S. 93, 101-02 (1989) (rejecting argument that California’s antitrust law, to recover damages for their injuries. See California v. ARC America Corp., 490 The question presented by this case – whether consumers, as indirect however, preempt states from enacting statutes that allow indirect purchasers is the most sensible, so we opt for it. The issue is now thoroughly briefed and. at 737-38. Later, the Court held that federal antitrust laws do not,

the unique nature of antitrust litigation, issues of multiple recovery, and the III. Discussion chain of distribution. Id. at 724-27. In support of its holding, the Court cited product not directly from a manufacturer, but from some intermediary in the

indirect purchasers may not bring claims under the federal antitrust laws. For Co. v. Illinois, 431 U.S. 720 (1977), the United States Supreme Court held that

A. Whether Indirect Purchasers May Bring Claims under the CPA Finally, we could decide the matter in the first instance. This approach

issue.

Bartlett Water Precinct v. Murnik, 150 N.H. 690, 692 (2004).

likely would appeal, and we would once again be called upon to decide the because no matter what conclusion the superior court might reach, the parties claims as CPA claims, and thereby be enabling end runs around Minuteman

p. 5 whole. Appeal of Town of Bethlehem

language that the legislature did not see fit to include. Id

claims under the CPA, we will be encouraging litigants to reframe antitrust

legislature’s intent as expressed in the words of the statute considered as a

Minuteman

as written and will not consider what the legislature might have said or add meaning to the words used. Id. We interpret legislative intent from the statute position. The defendants counter that if we allow the plaintiffs to bring their examining the language of a statute, we ascribe the plain and ordinary

In matters of statutory interpretation, we are the final arbiters of the uphold the granting of the motion to dismiss. Id produce a harmonious statutory scheme. inferences in the light most favorable to them. Paul v. Sherburne rule applies in the CPA context. They argue that such a result will truth of the facts alleged by the plaintiffs and construe all reasonable defendants urge us to reject the plaintiffs’ arguments and to hold that the chapter 356 (1995 & Supp. 2006). Minuteman Citing public policy considerations and principles of statutory construction, the purchasers may not bring claims under the state antitrust statute, RSA Jenks v. Menard. the pleadings is in the nature of a motion to dismiss for failure to state a claim. not pursue their claims. In general, a motion seeking judgment based solely on to the defendants because the plain language of the CPA supports their The plaintiffs contend that the superior court erred in granting judgment the superior court granted judgment on the pleadings, holding that Minuteman

awarding damages to indirect purchasers. Id 747, 749 (2006). If the facts do not constitute a basis for legal relief, we will

for failure to state a claim upon which relief may be granted, we assume the

, 145 N.H. 236, 239 (2000). In reviewing a motion to dismiss may bring claims under the CPA. We have, however, held that indirect

applied to consumer protection claims and that the plaintiffs therefore could

Against this backdrop, we turn to the case at hand. As referenced above,

nature of antitrust litigation and the potential complexities that would arise in Minuteman, we adopted the reasoning of Illinois Brick, citing the unique

We have never been called upon to decide whether indirect purchasers

Dist. Ct. App. 1996), rev. dismissed, 689 So. 2d 1068 (Fla. 1997). (Mass. 2002); Mack v. Bristol-Myers Squibb Co., 673 So. 2d 100, 104 (Fla. 16-17, 19-20; Ciardi v. F. Hoffmann-La Roche, Ltd., 762 N.E.2d 303, 311 brought under the state’s consumer protection act. See Elkins, 817 A.2d at approach. Courts in all three states have allowed antitrust-type claims to be Id. By contrast, Vermont, Massachusetts and Florida follow a different undermine state antitrust acts and the jurisprudence construing such acts. p. 6 By allowing “any

assert these types of claims. to the plain language of the CPA to determine whether indirect purchasers may conduct that typically are associated with the antitrust realm. Thus, we turn

legislature intended to make actionable under the CPA at least some types of

conduct set forth in RSA 358-A:2, XIV, it seems indisputable that our

consumer protection actions for the type of monopolistic or anticompetitive monopoly, or otherwise harm competition.” RSA 358-A:2, XIV. By allowing [p]ricing of goods or services in a manner that tends to create or maintain a

“Any person injured” is broad. Cf

“injured.” We disagree. scope, most likely by reading the word “directly” into it, i.e. injured to bring suit, we would have to find some way to limit the statute’s the defendants urge, that the legislature intended to allow only those directly

of competition or unfair or deceptive act[s] or practice[s] shall include . . . [the]

words to statutes. Bethlehem

have to read the phrase “directly or indirectly” into the statute as a qualifier of

between consumers directly and indirectly injured. If we were to conclude, as

damages.” RSA 358-A:10, I (1995). For purposes of the CPA, “unfair method[s] practice declared unlawful under this chapter may bring an action for, 154 N.H. at 319. Under the CPA, “[a]ny person injured by another’s use of any method, act or injured.” This is not what the statute says, and it is not our practice to add

but should be interpreted in its statutory context). It does not differentiate 152 N.H. 265, 270-71 (2005) (phrase “any person” is “broad and unqualified”

133 N.H. 346, 349 (1990) (definition of lender as “‘any person making a loan

straightforward and simple. However, the CPA does not envisage such rigidity.

(citation omitted)). The defendants, however, contend that in order to allow the class of persons who have standing to those in privity with the defendant.” who may bring a private action broadly, and by its plain meaning does not limit Remsburg v. Docusearch, 149 N.H. 148, 159-60 (2003) (“The statute defines limit who may bring a CPA claim to persons sustaining direct injuries. See RSA 358-A:10, I (emphasis added) does not suggest any legislative intent to

antitrust-type actions to be brought under the state antitrust statute would be At first blush, the defendants’ argument has some appeal. Requiring

Minuteman not contend that they are not indirect purchasers within the meaning of

antitrust – claims in the first place. decision in Minuteman that the plaintiffs brought CPA – as opposed to

and Illinois Brick. Indeed, it would seem to be because of our

brought and decided under antitrust statutes and principles. The plaintiffs do We begin with the defendants’ contention that antitrust claims should be manner that tends to create or maintain a monopoly, or otherwise harm p. 7 pricing. Instead, it makes unlawful the “[p]ricing of goods or services in a

The plain language of the statute is not, on its face, limited to predatory

ignoring the text and purpose of the [consumer protection] statute.” package . . . anticompetitive conduct allegations as pricing claims while

competition. See

plaintiffs. Paul

pricing practices, the plaintiffs’ complaint “is simply a naked attempt to re-

tended to create a monopoly, maintain a monopoly, or otherwise harm brought under RSA 358-A:2, XIV, the plaintiffs will have to prove that pricing however, agree with the defendants that in order to prevail at trial on a claim litigation, this allegation must be taken in a light most favorable to the practices within the meaning of RSA 358-A.” At this early stage of the unfair and deceptive competition and unfair and deceptive business acts and authority, the defendants argue that in the absence of allegations of predatory

hold that RSA 358-A:2, XIV contemplates only narrow protection. We do,

moist snuff tobacco products . . . constitute[d] and was intended to constitute with anticompetitive or predatory pricing instead. Thus, citing federal agreements or combinations, while RSA 358-A:2, XIV is narrowly concerned 7 upon RSA 358-A:2, XIV because their allegations concern anticompetitive

XIV, their argument is for summary judgment or trial. that the plaintiffs will not be able to actually prove a violation of RSA 358-A:2,

, 153 N.H. at 749. Thus, to the extent the defendants argue

requires privity, or it does not. We have held that it does not. See harm competition” is, on its face, broad, it would seem anomalous for us to its text a basis upon which this distinction can be made. Either the statute indirect actions under some circumstances but not others, yet not set forth in cost,” Matsushita Elec. Industrial Co. v. Zenith Radio other things, “increasing . . . the price and limiting and reducing the supply of Here, the plaintiffs have alleged that the defendants’ conduct in, among

358-A:10, the plaintiffs still have failed to state a claim to the extent they rely RSA 358-A:2, XIV.

However, since our CPA generally is given broad sweep, and since “or otherwise (1986), is among the types of conduct prohibited by RSA 358-A:2, XIV. brought under RSA 358-A:10. It would make no sense for the CPA to allow, 475 U.S. 574, 585 n.8 pricing, one definition of which is “pricing below some appropriate measure of competition.” RSA 358-A:2, XIV (emphasis added.) To be sure, predatory

purchasers may bring claims under the “any person injured” language of RSA The defendants also argue that even if we conclude that indirect

anticompetitive conduct generally, then we must do so for all private actions word “directly” into the CPA for purposes of RSA 358-A:2, XIV or The defendants’ argument essentially asks us to do just that, for if we read the

149 N.H. at 159-60.

suit only against those from whom they have directly purchased a product. Furthermore, we have never held that the CPA allows consumers to bring the extent that the sound growth of the law requires.

p. 8 including the overruling of outstanding decisions to

processes of judicial development of decisional law,

the matter should be left to be handled by the normal in the legislation. One such reason is the belief that other than legislative dislike for the principle involved

reasons for the lack of [passage] . . . of a measure

argue that since our legislature has not passed an Illinois Brick

practicalities of the legislative process furnish many the CPA. Similarly, in Ciardi the legislature did not pass [such a] . . . measure. The 8 indirectly” is further evidence of the broad sweep the legislature intended for [t]he fallacy in the argument is that no one knows why

Beyond the plain meaning of the statutory language, the defendants also

commerce directly or indirectly

indirect effects on the people of this state. Thus, if nothing else, “directly or Court has persuasively reasoned, The defendants try to distinguish Ciardi in the context of the CPA. However, as the Massachusetts Supreme Judicial statute, it must have agreed with Minuteman, and therefore we should apply it

commerce ‘directly or indirectly interpretations of the other. (Supp. 2006), defines “[t]rade” and “commerce” to “include any trade or it is also true that neither chapter indicates that interpretations of one bind RSA chapter 358-A contains a provision similar to the one described in Ciardi, does not. Ciardi, 762 N.E.2d at 311. Although neither RSA chapter 356 nor “‛ no effect’” upon the state consumer protection statute, while our antitrust act encompass conduct which was part of trade or commerce that had direct or Massachusetts’ Antitrust Act contains a provision stating that it should have the defendants’ position, it cannot be denied that the plaintiffs’ allegations by pointing out that and instead defines the types of business conduct regulated. Even if we adopt not barred from bringing consumer protection claims. purchasers are barred from bringing suit under the state antitrust act, they are Ciardi, 762 N.E.2d at 308. It then concluded that although indirect

noted that Massachusetts’ consumer protection statute “regulates trade and the conduct of any trade or commerce within this state.” RSA 358-A:1, II, the Massachusetts Supreme Judicial Court any unfair method of competition or any unfair or deceptive act or practice in indirect purchasers may bring suit. RSA 358-A:2 makes it unlawful to “use

that the phrase “directly or indirectly” has no bearing on who may bring suit App. 1997), rev. denied, 950 P.2d 475 (Wash. 1998), the defendants contend added.) Citing Blewett v. Abbott Laboratories, 938 P.2d 842, 846 (Wash. Ct.

Another aspect of the CPA’s language also supports the conclusion that remedial goals of the CPA. See

p. 9 A:2, XIV. Such a result would seriously undermine or erode the expansive recovering damages for the injuries caused by an alleged violation of RSA 358prevent the real victims – those who purchase goods at higher prices – from

indirect consumers are prohibited from bringing CPA claims would be to

statutes] and Antitrust Act which must be repugnancy between the Florida [consumer protection

Our reasoning is supported by the holding in Mack policy of competitive pricing. To adopt the defendants’ position and hold that

f[ou]nd that there is no plain inconsistency or

CPA is to provide broad protection for consumers. See demonstrates the legislature’s clear desire to promote the consumer protection chain . . . .”). Furthermore, to the extent RSA 358-A:2, XIV is at issue, its enactment

windfall at the expense of the true victims further down the distribution amount that they passed along to indirect purchasers . . . [would produce] a purchasers of goods and services in the marketplace. matter harmoniously, we must extend Minuteman only direct purchasers to bring a cause of action and retain as damages the

describe who may bring suit, see

one is dependent upon the other. Additionally, the legislature’s purpose in

“any person injured” must encompass consumers, who are often the ultimate practice of attempting to construe statutes that deal with similar subject of the CPA, which is to be construed broadly, see Hughes, 143 N.H. at 578, in a statute without regard for the context in which it is found. In the context

RSA chapter 356, like the CPA, uses the phrase “any person injured” to require us to decide in their favor. Citing Soraghan v. Mt. Cranmore Ski N.H. 576, 578 (1999). Accordingly, although the defendants correctly note that

and it became effective on July 17, 2002. Laws 2002, 276:1. Minuteman RSA chapter 356 nor RSA chapter 358-A contains a provision indicating that as precluding indirect purchaser actions. We disagree. For one thing, neither

RSA 356:11, II (1995); RSA 358-A:10, it follows that, consistent with our chapter 358-A and RSA chapter 356 seek to protect “person[s] injured,” see Resort, 152 N.H. 399, 405 (2005), the defendants argue that since both RSA

The defendants also assert that general rules of statutory construction

decided on April 19, 2002. Minuteman, 147 N.H. at 634.

worth noting that the legislature approved RSA 358-A:2, XIV on May 18, 2002, enacted would have modified RSA chapter 356, not the CPA. See id. It is also omitted). Moreover, any repealer statute that our legislature could have p. 10 Ciardi, 762 N.E.2d at 310 n.15 (quotations, citation, brackets and ellipsis Ciardi

with the statute should be directed to the Legislature. such indirect purchaser actions. Any disagreement to protect . . . consumers through the authorization of

protection act] as a clear statement of legislative policy

Mack

[state] law. We read the language of [the consumer by indirect purchasers for antitrust violations under own policy decisions about whether to permit claims

actual damages or a set dollar amount, whichever is greater. See enacting [Florida’s consumer protection statutes]. systems market. Id alleging that it had obtained monopoly power over the computer operating [I]t is the province of the . . . Legislature to make its

remedy.” p. 10 Ciardi example, both are broadly worded, id. at 13; Milford Lumber Co. v. RCB Realty, because the VCFA and RSA chapter 358-A share similar attributes. For allowed under the VCFA. Id. The Elkins decision is persuasive, in part as well as Illinois Brick, the court concluded that indirect purchaser suits were consumers who prevail under the consumer protection statutes to recover would be wholly contrary to the legislature’s intent in. at 11. After analyzing the VCFA and its legislative history, who have been damaged by alleged illegal price-fixing – action suit against Microsoft under the Vermont Consumer Fraud Act (VCFA), to an entire class of consumers – indirect purchasers the Massachusetts Supreme Judicial Court’s response to this argument: decision in Elkins. Elkins, 817 A.2d at 9. There, a plaintiff brought a class duplicative liability. Although this is a legitimate concern, we find persuasive Our overall analysis finds support in the Vermont Supreme Court’s purchasers to bring suit will have the effect of introducing complex issues of

, 762 N.E.2d at 314 n.20.

damages, the Legislature has decided that she [or he] is entitled to a specified plaintiff is able to prevail on the issue of liability but is unable to prove actual RSA 358-A:10 (actual damages or $1,000). Thus, “[t]o the extent that the

in apportioning damages between direct and indirect purchasers by allowing Massachusetts legislature, like ours, eliminated some of the perceived difficulty , 762 N.E.2d at 314 (footnote omitted). p. 10 Ciardi defendants, which would eliminate a remedy provided also noted that the

The defendants argue, as a matter of public policy, that allowing indirect

other does not. . . . [T]o accept the argument of the allows indirect purchasers to sue for damages and the conduct, are not inconsistent merely because one

, 673 So. 2d at 110.

statutes, both of which prohibit anticompetitive harmonized. . . . ARC America establishes that two consumers. Id

p. 11 statute that was designed to protect them, whether they are direct or indirect

antitrust action should not mean that consumers are denied a remedy under a antitrust violations as actionable conduct. Davidson decisions upon their respective consumer protection statute’s failure to specify The court determined that the reasoning of Illinois Brick monopolistic and price-related conduct, see decision is not particularly persuasive for several reasons. the policies allowing only direct purchasers to recover under the Antitrust Act.” the consumer protection statutes “would essentially permit an end run around

more narrowly than RSA chapter 358-A. Compare

. at 516 (Gammage & Spector, JJ., dissenting).

essence antitrust claims.” Id judges persuasively dissented, noting that just because conduct gives rise to an (Gonzalez, J., concurring), whereas at least RSA 358-A:2, XIV does. Third, two state’s consumer protection statute. However, both courts based their Segura, 907 S.W.2d at 513 injured”). Second, Texas’ consumer protection statutes did not cover or damages for mental anguish . . . .”) with RSA 358-A:10, I (“Any person where any of the following constitute a producing cause of economic damages under the state antitrust act, and that allowing indirect purchaser suits under § 17.50 (Vernon 2002 & Supp. 2006) (“A consumer may maintain an action example, in Davidson v. Microsoft In Abbott Laboratories, Inc. v. Segura TEX. BUS. & COM. CODE ANN. First, the Texas Consumer Protection Act defines who may bring suit much The Segura

of claims under the consumer protection statutes because those claims “are in

the Texas Supreme Court held that indirect purchasers may not bring claims claims, their decisions are not persuasive in light of our statutory scheme. For, 907 S.W.2d 503, 506 (Tex. 1995),

antitrust violations under the CPA. Sickles, 877 A.2d at 276-77. RSA 358-A:2, XIV, however, expressly includes Elkins, 792 A.2d at 344-45;

Maryland Court of Special Appeals and the Appellate Division of New Jersey’s cert. denied, 801 A.2d 1032 (Md. 2002), and Sickles, 877 A.2d at 267, the

have concluded that indirect purchasers may not bring consumer protection Although the defendants correctly note that courts in other jurisdictions

, 817 A.2d at 17. because the provision became effective after the plaintiff’s alleged injury. purchaser suits under the VCFA, the court analyzed the issue as if it did not persuasive. Although Vermont had a statutory provision authorizing indirect Brick repealer statute, but this circumstance does not render the case any less point out that Vermont does not have an antitrust act and does have an Illinois N.H. 600, 601 (1982) (“consumer protection”). The defendants are correct to purpose, Elkins, 817 A.2d at 13 (“‘protect the public’”); Chase v. Dorais, 122 Elkins, 817 A.2d at 12; Remsburg, 149 N.H. at 159-60; and both have a similar 147 N.H. 15, 17 (2001); neither contains an express privity requirement, acts or practices, and because the Legislature did not explicitly preclude p. 12 they are unfair methods of competition, but also because they constitute unfair

violations are actionable under [the consumer protection act] not only because

As the Massachusetts Supreme Judicial Court reasoned, “antitrust

unlawful acts and practices.

because the conduct they allege against the defendants also constitutes

allegations need not be pigeonholed into a category of “unfair methods” from bringing a class action. On appeal, the plaintiffs contend that their only unfair methods of competition, and therefore the plaintiffs were precluded

court then determined that the plaintiffs’ allegations did indeed encompass

only methods of competition, they may not bring a class action. The superior class actions.” Thus, the court reasoned, if the plaintiffs’ allegations involve competition’ in its statement of the types of claims that may be brought as

CPA. In contrast . . . RSA 358-A:10-a . . . omits ‘unfair method[s] of

method[s] of competition’ in the types of claims that may be brought under the

The superior court observed that “RSA 358-A:2 expressly includes ‘unfair

358-A:10-a, I.

B. Class Certification

, 793 A.2d

representatives of a class of persons . . . to recover actual damages . . . .” RSA 12

defendants’ motion for judgment on the pleadings.

for damages . . . .”); accord injury to numerous other persons, institute an action as representative or under RSA 358-A:10 may, if the unlawful act or practice has caused similar be maintained under the CPA. It provides, “Persons entitled to bring an action to bring that claim in the first place. See claim under the CPA – not to whether they are entitled, as indirect purchasers,

we conclude that the plaintiffs set forth sufficient allegations to survive the

which persons have sustained injuries too remote to give them standing to sue

RSA 358-A:10-a (1995 & Supp. 2006) governs when a class action may

alleged conduct, their arguments relate to whether the plaintiffs can prove their

Accordingly, given the broad protections afforded by RSA chapter 358-A, to the defendant’s alleged conduct.” Id

(explaining that who is “injured” is “analytically distinct from the question of

show a sufficiently close connection between themselves and the defendants’ 67. To the extent the defendants argue that these particular plaintiffs cannot upon a three-part test for remoteness and proximate causation. Id. at 1066-

Practices Act (CUTPA)] because his alleged injuries are too remote with respect “plaintiff is barred from bringing a claim under [the Connecticut Unfair Trade 1048, 1050 (Conn. 2002). There, the Connecticut Supreme Court held that a Finally, the defendants rely upon Vacco v. Microsoft Corp. p. 13 IV. Conclusion

consistent with this opinion. Thus, we reverse its ruling in this regard and remand for further proceedings

allegations against the defendants are not susceptible to class certification.

Accordingly, we conclude that the superior court erred in ruling that the

elevate form over substance.

conclude otherwise would erode the broad remedial goals of the CPA and

alleged into the category of “unfair method” for purposes of the CPA. To

358-A:2, XIV. We discern no principled reason to pigeonhole the conduct here statute indicates that “acts or practices” includes the conduct set forth in RSA category for purposes of the CPA. To the contrary, the plain language of the

made no effort to force this type of antitrust activity into an “unfair method”

Reversed and remanded

maintain a monopoly, or otherwise harm competition.” Thus, the legislature to . . . [the] [p]ricing of goods or services in a manner that tends to create or or unfair or deceptive act or practice shall include, but [not be] limited from attempting to certify a class of indirect purchasers under RSA 358-A:10-a.

BRODERICK, C.J.