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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Meidinger v Koniag, Inc. (07/27/2001) sp-5442

Meidinger v Koniag, Inc. (07/27/2001) sp-5442

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


JUDY MEIDINGER,               )
                              )    Supreme Court Nos. S-9402/9431
          Appellant and       )
          Cross-Appellee,     )    Superior Court No.
                              )    3AN-97-10072 CI
     v.                       )
                              )
KONIAG, INC.,                 )    O P I N I O N
                              )
          Appellee and        )    [No. 5442 - July 27, 2001]
          Cross-Appellant.    )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Brian C. Shortell, Judge.


          Appearances:  Don C. Bauermeister, Burke &
          Bauermeister, P.L.L.C., Anchorage, for
Appellant/Cross-Appellee.  Timothy W. Seaver and R. Collin
Middleton, Middleton & Timme, P.C., Anchorage, for Appellee/Cross-
Appellant. 


          Before: Fabe, Chief Justice, Eastaugh, Bryner,
and Carpeneti, Justices.  [Matthews, Justice, not participating.] 
 


          EASTAUGH, Justice.


I.   INTRODUCTION
          In this appeal we consider claims arising out of the
solicitation of proxies by shareholders of an Alaska Native
regional corporation.  Because we conclude that certain proxy
solicitation statements by the shareholders were materially false
as a matter of law, we affirm the superior court's grant of summary
judgment as to those statements.  But because the corporation
voluntarily dismissed its remaining claims for materially false or
misleading proxy solicitation statements, we do not reach the
merits of the corporation's cross-appeal challenging the superior
court's denial of summary judgment as to those claims.
II.  FACTS AND PROCEEDINGS
          Koniag, Inc. is an Alaska corporation, incorporated under
the Alaska Native Claims Settlement Act [Fn. 1] (ANCSA) as a
regional corporation.  In December 1997 Koniag held its annual
shareholders meeting in Kodiak (1) to elect three directors to the
board of directors for three-year terms; and (2) to vote on
Proposition 1, which provided for the establishment of a permanent
fund as a settlement trust under the provisions of ANCSA.
          Koniag shareholders Diane Cooper, Jana Larsen-Horne, and
Judy Meidinger sought election to Koniag's board and solicited
proxies in October and November 1997.  These three candidates (the
Meidinger slate) opposed the adoption of Proposition 1, and their
proxy solicitation statements urged voters to reject the trust
proposal. 
          In December 1997 Koniag sued the Meidinger slate for
proxy solicitation violations and defamation.  Koniag's complaint
alleged that the Meidinger slate made numerous materially false or
misleading proxy solicitation statements.  The Meidinger slate
counterclaimed for breach of fiduciary duty, intended consequences,
intentional infliction of emotional distress, and abuse of process.
          In May 1999 Koniag moved for summary judgment on each of
its claims for materially false or misleading proxy solicitation
statements by the Meidinger slate.  The Meidinger slate opposed
Koniag's motion and cross-moved for summary judgment on Koniag's
claims.  On August 23 the superior court granted Koniag summary
judgment on two of its claims for materially false or misleading
proxy solicitation statements.  But the superior court ruled that
genuine factual issues precluded the grant of summary judgment on
Koniag's remaining claims for proxy solicitation violations. [Fn.
2]  The superior court also ruled on the Meidinger slate's cross-
motion for summary judgment, concluding as a matter of law that
Larsen-Horne had not misrepresented her status as an associate with
the Jamin law firm, but denying the motion as to all other issues.
          After the superior court expressed its willingness to
grant Koniag injunctive relief based upon the statements the court
found to be materially false as a matter of law, Koniag filed a
notice of intent not to seek further trial of claims; this notice
dismissed Koniag's remaining claims, but purported to reserve
Koniag's right to argue on cross-appeal that the superior court
erred to the extent it failed to grant Koniag summary judgment on
its claims of false or misleading proxy. 
          On September 29 the superior court entered an injunction
(1) directing the Meidinger slate to cease and desist from further
violations of the law; (2) directing the Meidinger slate, for a
period of three years, to file proxy statements and other proxy
solicitation materials with the State Division of Banking,
Securities, and Corporations for examination and review at least
ten working days before a distribution to shareholders; and (3)
voiding the proxies obtained by the Meidinger slate.
          In July 1999 Koniag moved for summary judgment on the
Meidinger slate's counterclaims.  The Meidinger slate opposed
Koniag's motion.  On September 27 the superior court dismissed the
Meidinger slate's remaining counterclaims for abuse of process,
intentional infliction of emotional distress, and breach of
fiduciary duty on summary judgment. [Fn. 3] 
          The superior court entered final judgment for Koniag on
December 17, 1999.  Judy Meidinger appeals. [Fn. 4]  Koniag cross-
appeals.
III. DISCUSSION
     A.   Standard of Review
          We review an award of summary judgment de novo and affirm
"'if the evidence in the record fails to disclose a genuine issue
of material fact and the moving party is entitled to judgment as a
matter of law.'" [Fn. 5]  We draw all reasonable inferences of fact
in favor of the nonmoving party. [Fn. 6]  We apply our independent
judgment to any questions of law and adopt the rule of law that is
most persuasive in light of precedent, reason, and policy. [Fn. 7]
     B.   It Was Not Error to Grant Koniag Summary Judgment on Two
of Its Claims for Materially False or Misleading Proxy Solicitation
Statements by the Meidinger Slate.

          The proxy solicitation statements the Meidinger slate
distributed in October 1997 opposed the adoption of Proposition 1,
which provided for the establishment of a permanent fund as a
settlement trust under the provisions of ANCSA.  A statement
circulated by the Meidinger slate in opposition to the trust
asserted: "This proposal gives [Koniag's] Board way more power than
they currently possess.  They would be able to appoint themselves
as trustees, (more directors fees and compensation), change the
terms of the trust and the number of trustees as they see fit." 
Another Meidinger slate proxy solicitation statement asserted: "THE
PROPOSAL ALSO GRANTS IRREVOCABLE DELEGATION FROM THE SHAREHOLDERS
TO THE CURRENT BOARD TO APPOINT AND REMOVE TRUSTEES." 
          Koniag argued in its summary judgment motion that these
statements were materially false or misleading as a matter of law.
The superior court agreed and granted Koniag summary judgment as to
these statements.  Meidinger appeals this ruling.
          The Alaska Securities Act prohibits misrepresentations of
material fact in proxy solicitations. [Fn. 8]  Alaska Statute
45.55.160 provides:
          A person may not, in a document filed with the
Administrator or in a proceeding under this chapter, make or cause
to be made an untrue statement of material fact or omit to state a
material fact necessary in order to make the statements made, in
light of the circumstances under which they are made, not
misleading.

Alaska's regulations further provide:

          A solicitation may not be made by means of a
proxy statement . . . that contains a material misrepresentation. 
A misrepresentation is a statement that, at the time and under the
circumstances in which it is made (1) is false or misleading with
respect to a material fact; (2) omits a material fact necessary in
order to make a statement made in the solicitation not false or
misleading; or (3) omits a material fact necessary to correct a
statement, in an earlier communication regarding the solicitation
of a proxy for the same meeting or subject matter, which has become
false or misleading.[ [Fn. 9]]

          A misrepresentation is material 
          if there is a substantial likelihood that a
reasonable shareholder would consider it important in deciding how
to vote.  Subjective proof that one or more shareholders actually
granted a proxy because of a falsehood is not required; only the
objective standard encompassed in the definition of materiality
need be met.[ [Fn. 10]]

Materiality is a mixed question of law and fact, "involving as it
does the application of a legal standard to a particular set of
facts." [Fn. 11]  In considering whether summary judgment on the
issue of materiality is appropriate, we must bear in mind that the
determination of materiality involves assessments that are
peculiarly ones for the trier of fact:
          the underlying objective facts, which will
often be free from dispute, are merely the starting point for the
ultimate determination of materiality.  The determination requires
delicate assessments of the inferences a "reasonable shareholder"
would draw from a given set of facts and the significance of those
inferences to him, and these assessments are peculiarly ones for
the trier of fact.[ [Fn. 12]]  
Nevertheless, the issue of materiality may be resolved as a matter
of law on summary judgment "if the established [misrepresentations]
are 'so obviously important to an investor, that reasonable minds
cannot differ on the question of materiality' . . . ." [Fn. 13]
          Meidinger first argues on appeal that the statement that
the trust proposal gave Koniag's board the "authority to change the
terms of the trust and the number of trustees as they see fit" is
not false or misleading under the provisions of the trust proposal. 
Meidinger cites section 8.5 of the trust agreement, which provides
in relevant part: "At any time within ten (10) years of the funding
of the trust, the Trustees may reduce the number of Trustees to not
fewer than five (5) Trustees."  Meidinger also cites section
18.1(a) of the trust agreement, which provides in part:  "At any
time during the first three years of the Trust, the Trustees,
without the consent of the Beneficiaries, but with the agreement of
Koniag, Inc. (acting with approval of its Board of Directors and
through its duly elected officers), may amend any technical aspect
of the Trust . . . ." 
          But Meidinger's argument that the trust agreement grants
Koniag's board the authority to change the terms of the trust and
the number of trustees "as they see fit" is contradicted by other
sections of the trust agreement and is therefore not persuasive. 
Section 8.5 of the trust agreement provides that the number of
trustees may be reduced only within ten years of the funding of the
trust, and the number of trustees may not be reduced to fewer than
five.  Furthermore, section 18.1 provides trustees with discretion
to make only "limited amendments" to the trust agreement, and
section 18.3 further limits trustees' power to amend the trust
agreement. [Fn. 14]  We therefore conclude, as did the superior
court, that the authority-to-change statement is untrue as a matter
of law.
          Meidinger next argues that the statement that the trust
proposal "grants irrevocable delegation from the shareholders to
the current board to appoint or remove trustees" is not false or
misleading under the provisions of the trust agreement.  Meidinger
cites section 8.6 of the trust agreement, which provides in part:
"By approving this Trust Agreement, the Board of Directors and
shareholders do consent to and ratify the irrevocable delegation by
Koniag, Inc. of its authority to appoint and remove the Trustees,
to the extent provided by this Trust Agreement." [Fn. 15]  But
section 8.6 addresses the delegation of Koniag's authority to
appoint and remove trustees, and does not purport to delegate the
authority of its shareholders.  43 U.S.C. sec. 1629e(b)(2) grants
Native corporations exclusive authority to appoint and remove
trustees of a settlement trust; shareholders of a Native
corporation do not have any authority to appoint or remove the
trustees of a settlement trust.  We therefore affirm the superior
court's conclusion that the irrevocable delegation statement is
untrue as a matter of law. 
          Finally, Meidinger argues that summary judgment on the
issue of materiality was inappropriate.  She contends that because
Koniag mailed its shareholders a copy of the proposed trust
agreement, the question whether the statements regarding the trust
agreement altered the "total mix" of information available to
Koniag's shareholders is one for the trier of fact.  Meidinger
cites TSC Industries, Inc. v. Northway, Inc., where the U.S.
Supreme Court held that an omitted fact is material if there is "a
substantial likelihood that the disclosure of the omitted fact
would have been viewed by the reasonable investor as having
significantly altered the 'total mix' of information made
available." [Fn. 16]  
          We assume for purposes of discussion here that the "total
mix" standard applies to cases involving affirmative
misrepresentations (as distinguished from omissions of material
facts) in proxy solicitation statements.  We nonetheless find
Meidinger's argument unpersuasive.  As the United States Supreme
Court noted in Virginia Bankshares, Inc. v. Sandberg:
          [N]ot every mixture with the true will
neutralize the deceptive.  If it would take a financial analyst to
spot the tension between the one and the other, whatever is
misleading will remain materially so, and liability should follow. 
The point of a proxy statement, after all, should be to inform, not
to challenge the reader's critical wits.[ [Fn. 17]]

Similarly, Koniag's shareholders cannot be expected to interpret
and understand the terms of a trust proposal that even Meidinger's
brief describes as "complex."  Indeed, a proxy solicitation
statement that Meidinger distributed in opposing the trust stated:
"You must vote no on Proposition 1. . . .  If you are thinking
about voting yes, first get a lawyer, an accountant so you
understand enough to make an informed choice . . . ." (Emphasis
added.) 
          The Meidinger slate's misrepresentations pertained to the
merits of the only proposition scheduled to be considered at
Koniag's 1997 annual meeting.  Indeed, Meidinger's appellate brief
describes the trust proposal as "important."  We conclude that the
misrepresentations were so obviously important to an investor, that
reasonable minds cannot differ on the question of materiality.  We
therefore affirm the superior court's grant of summary judgment on
the issue of materiality.  
     C.   Meidinger Has Not Established that Alaska's Proxy
Solicitation Regulations Violate the Right to Free Speech Under
Article I, Section 5 of the Alaska Constitution.

          Meidinger next argues that Alaska's proxy solicitation
regulations are vague and overbroad, and hence violate the right to
free speech under article I, section 5 of the Alaska Constitution. 
But Meidinger's argument is unsupported by any case law involving
proxy solicitations.  We therefore reject Meidinger's
constitutional argument. [Fn. 18]
     D.   It Was Not Error to Grant Koniag Injunctive Relief
Without Conducting an Evidentiary Hearing.

          In September 1999 the superior court entered an
injunction (1) directing the Meidinger slate to cease and desist
from further violations of the law; (2) directing the Meidinger
slate, for a period of three years, to file proxy statements and
other proxy solicitation materials with the State Division of
Banking, Securities, and Corporations (division) for examination
and review at least ten working days before a distribution to
shareholders; and (3) voiding the proxies obtained by the Meidinger
slate.  Meidinger contends that it was error for the superior court
to grant Koniag injunctive relief without first conducting an
evidentiary hearing.  Meidinger cites AS 45.55.920(d), which
provides that "[b]efore issuing an order under . . . this section
[for injunctive relief or a civil penalty], the administrator shall
give reasonable notice of and an opportunity for a hearing."  We
are unpersuaded.
          Alaska Statute 45.55.920(d) applies by its terms only to
administrative proceedings in the Department of Commerce and
Economic Development. [Fn. 19]  It does not apply to judicial
proceedings.  We have held that an evidentiary hearing is not
required in a judicial proceeding in the absence of a genuine issue
of material fact. [Fn. 20]  Because we conclude that no genuine
fact dispute precluded the grant of summary judgment on two of
Koniag's claims for materially false or misleading proxy
solicitation statements by the Meidinger slate, [Fn. 21] we hold
that it was not error to grant Koniag injunctive relief based on
those statements without conducting an evidentiary hearing.
     E.   It Was Not an Abuse of Discretion to Grant Injunctive
Relief.

          Meidinger next argues that it was an abuse of discretion
for the superior court to require the Meidinger slate, for a period
of three years, to file proxy statements and other proxy
solicitation materials with the division for examination and review
before distributing them to shareholders.  Meidinger notes that
under AS 45.55.920(a)(1)(B), three years is the maximum period that
an individual can be required to file proxy statements and other
proxy solicitation materials with the division.  Meidinger contends
that the proxy solicitation violations upon which the superior
court based the injunction do not warrant the maximum penalty
allowed by AS 45.55.920(a)(1)(B).
          We review a grant of injunctive relief for abuse of
discretion. [Fn. 22]  Here, the injunction the superior court
entered borrowed heavily from the remedies listed in AS
45.55.920(a)(1). [Fn. 23]  As we recognized above, that statute
applies by its terms to administrative and not judicial
proceedings. [Fn. 24]  But it nevertheless illustrates the types of
remedies that the legislature believed to be reasonable upon a
violation of Alaska's proxy solicitation laws.  Furthermore, the
Meidinger slate distributed the proxy solicitation statements that
the superior court found to be materially false and misleading only
one year after the division had warned Meidinger "to take more care
in future election contests to provide complete disclosure pursuant
to the regulations."  The injunctive relief granted by the superior
court was therefore not an abuse of discretion.
     F.   It Was Not Error to Dismiss the Meidinger Slate's
Counterclaims on Summary Judgment.

          1.   Abuse of process
          The Meidinger slate counterclaimed for abuse of process,
alleging that "Koniag's lawsuit was . . . filed to obtain an unfair
advantage in pending and future [shareholders'] elections and to
intimidate the Meidinger slate from further participation in
shareholder elections or from running for office in the future." 
The superior court dismissed the abuse of process counterclaim on
summary judgment.  Meidinger appeals.
          The tort of abuse of process consists of two elements: 
(1) an ulterior purpose; and (2) a willful act in the use of the
process not proper in the regular conduct of the proceeding. [Fn.
25]  The second element "contemplates some overt act done in
addition to the initiating of the suit.  The mere filing or
maintenance of a lawsuit -- even for an improper purpose -- is not
a proper basis for an abuse of process action." [Fn. 26]  "Some
definite act or threat not authorized by the process, or aimed at
an objective not legitimate in the use of the process, is required
. . . ." [Fn. 27]   
          The superior court found that there was a genuine factual
dispute regarding Koniag's ulterior purpose. [Fn. 28]  But the
superior court dismissed the abuse-of-process counterclaim on
summary judgment because it concluded as a matter of law that the
Meidinger slate's allegations did not satisfy the second element of
the tort. 
          Meidinger argues that a genuine factual dispute regarding
the second element of abuse of process -- an overt act in addition
to the act of initiating a lawsuit -- precludes dismissal of the
counterclaim on summary judgment.  Meidinger contends that Koniag
performed the necessary overt act when it (1) sought compensatory
and punitive damages from the Meidinger slate; (2) requested
injunctive relief denying Jana Larsen-Horne her seat on the board;
(3) requested injunctive relief directing a counting of misled
shareholders' votes in favor of Koniag; (4) threatened the
Meidinger slate with a large attorney's fee award; (5) publicized
the lawsuit to gain advantage in future shareholder elections; and
(6) sent a flyer to its shareholders prior to the election alleging
violations of Alaska securities law by the Meidinger slate.
          Meidinger's first four allegations of overt acts are
examples of actions taken in the regular course of litigation and
therefore cannot be a proper basis for an abuse of process claim.
[Fn. 29]  Furthermore, the publicity Koniag accorded the lawsuit
was a permissible exercise, if not an obligation, of a corporation
about to spend money on litigation expense.  We therefore affirm
the superior court's dismissal of the abuse of process counterclaim
on summary judgment.
          2.   Intentional infliction of emotional distress
          The Meidinger slate also counterclaimed for intentional
infliction of emotional distress (IIED), alleging that Koniag
"subjected them to a deliberate campaign of harassment,
intimidation, and humiliation designed with the purpose of
improving Koniag's board and management election prospects."  The
superior court dismissed the IIED counterclaim on summary judgment. 
          An IIED claim requires evidence that "'[t]he offending
party, through extreme or outrageous conduct, intentionally or
recklessly caused severe emotional distress or bodily harm to
another.'" [Fn. 30]  Liability is found "'only where the conduct
[is] so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.'" [Fn.
31]  The trial court must make a threshold determination "whether
the severity of the emotional distress and the conduct of the
offending party warrant an instruction on intentional infliction of
emotional distress." [Fn. 32]  We will not overturn this threshold
determination absent an abuse of discretion. [Fn. 33]
          Meidinger argues that it was extreme and outrageous for
Koniag to (1) file suit three days before the election seeking
damages it could not prove and did not want; and (2) send its
shareholders before the election a flyer alleging violations of
Alaska securities law by the Meidinger slate.  Because Koniag's
conduct was not "so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency," [Fn. 34]
the superior court did not abuse its discretion by making this
threshold determination.  Furthermore, to the extent that the IIED
claim is based on Koniag's lawsuit against the Meidinger slate,
filing that lawsuit is privileged and cannot be the basis of IIED
liability. [Fn. 35]  We therefore affirm the grant of summary
judgment.
          3.   Breach of fiduciary duty
          The Meidinger slate's breach-of-fiduciary-duty
counterclaim alleged that "Koniag owed a duty to Judy Meidinger,
Jana Larsen[-Horne], and Diane Cooper not to initiate any lawsuit
against them that would not be in the overall interest of
shareholders."  The superior court dismissed the counterclaim on
summary judgment, stating that "the evidence and arguments
presented do not justify the maintenance of this cause of action." 
          "Directors, officers, and possibly controlling
shareholders, owe fiduciary duties to their corporation and
possibly to other shareholders." [Fn. 36]  But Meidinger cites, and
we have found, no authority for the proposition that a corporation,
such as Koniag, owes its shareholders fiduciary duties.  Because we
are not persuaded that a corporation owes its shareholders
fiduciary duties, we conclude that the superior court properly
dismissed the breach-of-fiduciary-duty counterclaim on summary
judgment.
     G.   It Was Not Error to Award Koniag Attorney's Fees and
Costs.

          The superior court awarded Koniag, as the prevailing
party, costs of $10,773 and partial attorney's fees of $37,784
under Alaska Civil Rules 79 and 82.  Meidinger argues that it was
an abuse of discretion to characterize Koniag as the prevailing
party for purposes of awarding attorney's fees and costs, because
(1) the superior court dismissed Koniag's defamation cause of
action on summary judgment; and (2) the superior court did not
award Koniag compensatory or punitive damages, although Koniag had
originally requested such damages. [Fn. 37] 
          The superior court has discretion to determine which
party is the prevailing party for purposes of awarding attorney's
fees and costs, and we will reverse only for an abuse of
discretion. [Fn. 38]  The prevailing party is the one "who has
successfully prosecuted or defended against the action, the one who
is successful on the 'main issue' of the action and 'in whose favor
the decision or verdict is rendered and the judgment entered.'"
[Fn. 39]  A party need not prevail on all the issues in a case to
be the prevailing party. [Fn. 40]
          The main issue in this case was whether the Meidinger
slate's proxy solicitations contained materially false and
misleading statements.  The superior court ruled that two
statements were materially false and misleading as a matter of law,
and the court granted Koniag injunctive relief.  It was therefore
not an abuse of discretion to characterize Koniag as the prevailing
party for purposes of awarding attorney's fees and costs.
     H.   The Issues Raised in Koniag's Cross-Appeal Have Not Been
Properly Preserved.

          In its cross-appeal, Koniag contends that the superior
court erroneously denied Koniag's summary judgment motion (or
granted only partial summary judgment) with respect to a number of
its claims alleging materially false or misleading proxy
solicitation statements by the Meidinger slate.  Koniag argues that
the Meidinger slate made materially false or misleading statements
regarding (1) the taxability of assets distributed to the proposed
trust; (2) the removal of trustees; (3) the accountability of
trustees to Koniag's shareholders; (4) the return of certain lands
to the villages of Karluk and Larsen Bay; (5) the withholding of
information by Koniag's management from the corporation's
shareholders; and (6) Koniag's lack of profitability.
          But Koniag has not preserved these issues for review in
its cross-appeal.  After the superior court expressed its
willingness to grant Koniag injunctive relief based upon the
statements the court found to be materially false and misleading as
a matter of law, Koniag dismissed its remaining claims against the
Meidinger slate.  Although Koniag's notice of intent not to seek
further trial of claims purported to reserve its remaining claims
for our review by cross-appeal, such a reservation is ineffective. 
By dismissing these claims voluntarily, Koniag gave up any right to
have their merits considered on appeal.  It is also not necessary
for us to consider Koniag's cross-appeal arguments as alternative
grounds for affirmance.  We therefore do not reach the merits of
Koniag's cross-appeal.
IV.  CONCLUSION
          For these reasons, we AFFIRM the judgment of the superior
court in all respects.


                            FOOTNOTES


Footnote 1:

     See 43 U.S.C. sec.sec. 1601-29g (1986 & Supp. 2000).


Footnote 2:

     The superior court granted partial summary judgment on
Koniag's claim regarding the Meidinger slate's statements that
"incompetence is not a just cause for removing a trustee."  The
court ruled that the statement was untrue as a matter of law, but
concluded that materiality presented an issue of fact.


Footnote 3:

     The superior court had dismissed the Meidinger slate's
counterclaim for intended consequences on May 4, 1998.


Footnote 4:

     Meidinger's brief asserts that Diane Cooper and Jana Larsen-
Horne have settled with Koniag. 


Footnote 5:

     Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997) (quoting
Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085, 1086 (Alaska
1989)).


Footnote 6:

     See Ardinger v. Hummell, 982 P.2d 727, 730 (Alaska 1999).


Footnote 7:

     See Mathis, 942 P.2d at 1120 (citing Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979)).


Footnote 8:

     See AS 45.55.160.


Footnote 9:

     3 Alaska Administrative Code (AAC) 08.315(a).


Footnote 10:

     Brown v. Ward, 593 P.2d 247, 250 (Alaska 1979) (citing TSC
Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976)); see also
3 AAC 08.315(a).


Footnote 11:

     TSC Indus., Inc., 426 U.S. at 450.


Footnote 12:

     Id.


Footnote 13:

     Id. (citations omitted).


Footnote 14:

     Section 18.3 of the trust proposal provides:

          Limitations.  Notwithstanding any provision of
this Trust Agreement, the Trustees may not use the powers contained
in this Article 18 to change the designated Beneficiaries of the
Trust or their respective shares of the Trust, to revoke the Trust,
to authorize the distribution of principle except in the event of
the termination of the Trust, to reduce the percentages required
for the approval of matters submitted to the holders of the Units,
to cause any asset of the Trust to revert in any manner to Koniag,
Inc., or to reduce the length of time between votes as described in
Article 16.


Footnote 15:

     The clause "to the extent provided by this Trust Agreement"
refers to section 8.4, which grants the Board of Trustees authority
to fill any vacancies caused by death, incapacity, resignation, or
removal of a trustee, and section 14.2, which provides that if
Koniag, Inc. ceases to exist as a discrete legal entity, the
corporation's authority to appoint and remove trustees shall be
given to holders of Class A Trust Units.


Footnote 16:

     426 U.S. 438, 449 (1976).  


Footnote 17:

     501 U.S. 1083, 1097 (1991) (citations omitted).


Footnote 18:

     Cf. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978)
("Numerous examples could be cited of communications that are
regulated without offending the First Amendment, such as . . .
corporate proxy statements . . . .  [T]he State does not lose its
power to regulate commercial activity deemed harmful to the public
whenever speech is a component of that activity."). 


Footnote 19:

     AS 45.55.905, .920.


Footnote 20:

     See Acevedo v. Burley, 944 P.2d 473, 476 n.2 (Alaska 1997).


Footnote 21:

     See supra Part III.B.


Footnote 22:

     See North Kenai Peninsula Rd. Maintenance Serv. Area v. Kenai
Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993); Blair v.
Washington State Univ., 740 P.2d 1379, 1382 (Wash. 1987).


Footnote 23:

     AS 45.55.920(a) provides:

                    If it appears to the administrator that a
                    person has engaged or is about to engage in an
                    act or practice in violation of a provision of
                    this chapter or regulation or order under this
                    chapter, the administrator may
                    (1)  in the public interest or for the
                    protection of investors, issue an order
                    (A)  directing the person to cease and desist
                    from continuing the act or practice;
                    (B)  directing the person, for a period not to
                    exceed three years, to file the annual
                    reports, proxies, consents or authorizations,
                    proxy statements, or other materials relating
                    to proxy solicitations . . . with the
                    administrator for examination and review 10
                    working days before a distribution to
                    shareholders; and
                    (C)  voiding the proxies obtained by a person
                    . . . including their future exercise or
                    actions resulting from their past exercise, if
                    the proxies were solicited by means of an
                    untrue or misleading statement . . . .
                    
                    
                    Footnote 24:
                    
                         See supra Part III.D.
                    
                    
                    Footnote 25:
                    
                         See DeNardo v. Michalski, 811 P.2d 315,
                    317 (Alaska 1991) (citing Kollodge v. State,
                    757 P.2d 1024, 1026 (Alaska 1988)).
                    
                    
                    Footnote 26:
                    
                         Id. at 317 (citations and internal
                    ellipses omitted).
                    
                    
                    Footnote 27:
                    
                         Kollodge, 757 P.2d at 1026.
                    
                    
                    Footnote 28:
                    
                         Koniag does not dispute on appeal the
                    existence of a genuine factual dispute
                    regarding its ulterior purpose.
                    
                    
                    Footnote 29:
                    
                         See DeNardo, 811 P.2d at 317.
                    
                    
                    Footnote 30:
                    
                         Coulson v. Marsh & McClennan, Inc., 973
                    P.2d 1142, 1148-49 (Alaska 1999) (quoting
                    Landers v. Municipality of Anchorage, 915 P.2d
                    614, 619 n.14 (Alaska 1996)).
                    
                    
                    Footnote 31:
                    
                         Chizmar v. Mackie, 896 P.2d 196, 208
                    (Alaska 1995) (quoting Oaksmith v. Brusich,
                    774 P.2d 191, 200 (Alaska 1989)).
                    
                    
                    Footnote 32:
                    
                         Id. at 208 (citation omitted).
                    
                    
                    Footnote 33:
                    
                         See id. at 209.
                    
                    
                    Footnote 34:
                    
                         Id. at 208.
                    
                    
                    Footnote 35:
                    
                         See, e.g., Greyhound Lines, Inc. v.
                    Duhon, 434 S.W.2d 407, 413 (Tex. App. 1968)
                    (holding that institution and prosecution of
                    lawsuit exposes plaintiff to no potential
                    causes of action except malicious prosecution
                    or abuse of process).
                    
                    
                    Footnote 36:
                    
                         Harry G. Henn & John R. Alexander, Laws
                    of Corporations sec. 235, at 625 (3d ed. 1983)
                    (emphasis added). 
                    
                    
                    Footnote 37:
                    
                         In March 1998 Koniag withdrew with
                    prejudice its request for compensatory and
                    punitive damages.
                    
                    
                    Footnote 38:
                    
                         See Buoy v. ERA Helicopters, Inc., 771
                    P.2d 439, 448 (Alaska 1989).
                    
                    
                    Footnote 39:
                    
                         Day v. Moore, 771 P.2d 436, 437 (Alaska
                    1989) (citation omitted).
                    
                    
                    Footnote 40:
                    
                         See id. (citation omitted).