Section 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 circumstances, which may include, as the plaintiff so elects, either individual notice or publication or both.
(a) If the plaintiff elects notice by publication, the notice shall advise each member that:
(1) The court will include the member in the class if such member so requests by a specified date;
(2) The judgment, whether favorable or not, will include all members who request inclusion; and
(3) Any member who does request inclusion may, if the member desires, enter an appearance through the member's counsel.
(b) If the plaintiff elects individual notice, the notice shall advise each member that:
(1) The court will include the member in the class unless the member requests exclusion by a specified date;
(2) The judgment, whether favorable or not, will include all members who do not request exclusion;
(3) Any member who does not request exclusion may, if the member desires, enter an appearance through the member's counsel.
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.