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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alakayak v. British Columbia Packers (5/31/2002) sp-5575

Alakayak v. British Columbia Packers (5/31/2002) sp-5575

     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,
     e-mail corrections@appellate.courts.state.ak.us.



            THE SUPREME COURT OF THE STATE OF ALASKA


LOUIE ALAKAYAK; WASSILLIE     )
ANDREWS; PETER CHERNISHOFF;   )    Supreme Court Nos. S-9259/9359
AGNES HANSEN; JERRY L.        )
HATTON; and CHRISTINE MONROE, )    Superior Court No.
on behalf of themselves and   )    3AN-95-4676 CI
all others similarly          )
situated; CARL W. EVON and    )    O P I N I O N
DAVID D. TARABOCHIA,          )
                              )    [No. 5575 - May 31, 2002]
            Appellants and    )
            Cross-Appellees,  )
                              )
     v.                       )
                              )
BRITISH COLUMBIA PACKERS,     )
LIMITED; ICICLE SEAFOODS,     )
INC.; MARUBENI CORPORATION;   )
MARUBENI AMERICA CORPORATION; )
NELBRO PACKING COMPANY;       )
NICHIREI CORPORATION; NICHIRO )
CORPORATION; NIPPON SUISAN    )
KAISHA, LTD.; NORTH PACIFIC   )
PROCESSORS, INC.; OCEAN       )
BEAUTY SEAFOODS, INC.; OKAYA  )
& COMPANY, LTD.; OKAYA (USA), )
INC.; OKAYA (CANADA) COMPANY, )
LTD.; PETER PAN SEAFOODS,     )
INC.; TRIDENT SEAFOODS        )
CORPORATION; UNISEA, INC.;    )
WARDS COVE PACKING COMPANY;   )
                              )
            Appellees and     )
            Cross-Appellants. )
______________________________)




          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage,
                   Peter A. Michalski, Judge.


          Appearances:   Phillip Paul Weidner,  Phillip
          Paul  Weidner & Associates, Inc.,  Anchorage,
          Bruce  F.  Stanford, Law Offices of Bruce  F.
          Stanford,  Anchorage, Stephen D.  Susman  and
          Parker  C. Folse III, Susman Godfrey, L.L.P.,
          Seattle,  Washington, and Frederick P.  Furth
          and  Bruce  J.  Wecker, The Furth  Firm,  San
          Francisco,  California,  for  Appellants  and
          Cross-Appellees.    Douglas   J.   Serdahely,
          Patton   Boggs,  L.L.P.,  Anchorage,  Liaison
          Counsel  for  Certain of Processor  Appellees
          and    Cross-Appellants   British    Columbia
          Packers,  Limited,  Nelbro  Packing  Company,
          Icicle    Seafoods,   Inc.,   North   Pacific
          Processors,  Inc., Unisea,  Inc.,  and  Wards
          Cove   Packing  Company.   James  N.  Reeves,
          Dorsey  &  Whitney,  L.L.P.,  Anchorage,  and
          Richard M. Clinton and Joseph Klein, Dorsey &
          Whitney,  L.L.P.,  Seattle,  Washington,  for
          Appellees   and   Cross-Appellants   Nichirei
          Corporation  and Unisea, Inc.,  and  also  on
          behalf  of all importer Appellees and  Cross-
          Appellants  Marubeni  Corporation,   Marubeni
          America  Corporation,  Nichirei  Corporation,
          Nichiro  Corporation, Nippon  Suisan  Kaisha,
          Ltd.,  Okaya  & Company, Ltd.,  Okaya  (USA),
          Inc.,   and  Okaya  (Canada)  Company,   Ltd.
          William M. Wuestenfeld and Michael D.  Corey,
          Sandberg,  Wuestenfeld  &  Corey,  Anchorage,
          Dexter A. Washburn, Law Offices of Dexter  A.
          Washburn,  Seattle, Washington, and  Geoffrey
          P.   Knudsen,  Law  Offices  of  Geoffrey  P.
          Knudsen,  Seattle, Washington, for  Appellees
          and    Cross-Appellants   British    Columbia
          Packers,  Limited and Nelbro Packing Company.
          Robert  L.  Richmond  and  Daniel  T.  Quinn,
          Richmond  &  Quinn, Anchorage, and  James  L.
          Magee and David C. Lundsgaard, Graham & Dunn,
          Seattle, Washington, for Appellee and  Cross-
          Appellant  Icicle Seafoods,  Inc.   James  N.
          Leik,  Perkins  Coie, L.L.P., Anchorage,  and
          David  J.  Burman  and Brent Snyder,  Perkins
          Coie,   L.L.P.,   Seattle,  Washington,   for
          Appellees   and   Cross-Appellants   Marubeni
          Corporation,  Marubeni  America  Corporation,
          and North Pacific Processors, Inc.  David  B.
          Ruskin,  Anchorage, and Michael  E.  Kipling,
          Phillip  H.  Ginsberg, and Carl J. Marquardt,
          Stokes  Lawrence, P.S., Seattle,  Washington,
          for  Appellees  and Cross-Appellants  Nichiro
          Corporation  and  Peter  Pan  Seafoods,  Inc.
          Clay  A. Young, Delaney, Wiles, Hayes, Gerety
          &  Ellis,  P.C.,  Anchorage,  and  Albert  R.
          Malanca,  Thomas  J.  Greenan,  and   Kenneth
          Kieffer,  Gordon, Thomas, Honeywell, Malanca,
          Peterson  &  Daheim, Tacoma, Washington,  for
          Appellee  and  Cross-Appellant Nippon  Suisan
          Kaisha, Ltd.  Kenneth P. Eggers, Groh Eggers,
          L.L.C.,  Anchorage,  and  Robert  J.  Adolph,
          Adolph  & Gamache, P.S., Seattle, Washington,
          for Appellee and Cross Appellant Ocean Beauty
          Seafoods,  Inc.  Mark E. Ashburn,  Ashburn  &
          Mason, Anchorage, and Richard E. Donovan  and
          Nicholas J. Panarella, Kelley, Drye & Warren,
          L.L.P., New York, New York, for Appellees and
          Cross-Appellants  Okaya &  Co.,  Ltd.,  Okaya
          (USA),  Inc.,  and Okaya (Canada)  Co.,  Ltd.
          Jeffrey M. Feldman, Susan Orlansky, and  Ruth
          Botstein, Feldman & Orlansky, Anchorage,  and
          Ralph  Palumbo and Lynn M. Engel, Summit  Law
          Group, Seattle, Washington, for Appellee  and
          Cross-Appellant Trident Seafoods, Inc.  Bruce
          E.   Falconer,   Hicks,  Boyd,   Chandler   &
          Falconer, Anchorage, and Douglas M. Fryer and
          Jeffrey L. Jernegan, Mikkelborg, Broz,  Wells
          &  Fryer,  Seattle, Washington, for  Appellee
          and   Cross-Appellant  Wards   Cove   Packing
          Company.  Richard J. Todd, Assistant Attorney
          General,  Anchorage, and  Bruce  M.  Botelho,
          Attorney  General, Juneau, for  Amici  Curiae
          States  of Alaska, Hawaii, Minnesota, Nevada,
          New Mexico, and West Virginia.


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


          FABE, Chief Justice.


I.   INTRODUCTION

          A class of commercial sockeye salmon fishers who fished

in  Bristol Bay between 1989 and 1995 brought an antitrust action

under  the  Alaska  Antitrust Act against salmon  processors  and

importers who allegedly conspired to depress the prices  paid  to

fishers  for  raw  salmon.   After the class  settled  with  some

defendants, the superior court granted summary judgment as to all

other  defendants,  holding that the  plaintiffs  had  failed  to

present  evidence sufficient to raise a genuine issue of fact  as

to  whether  a  price-fixing conspiracy existed.   After  summary

judgment  was  entered,  the prevailing defendants  requested  an

award  of  attorney's fees and costs under Alaska Civil Rules  79

and  82;  however, the superior court denied this  request.   The

plaintiff  class now appeals the grant of summary judgment.   The

defendants cross-appeal the denial of attorney's fees, as well as

the superior court's ruling construing the statute of limitations

for  antitrust actions, AS 45.50.588, to allow the plaintiffs  to

recover damages sustained during the course of the entire alleged

conspiracy.

II.  FACTS AND PROCEEDINGS

     A.   Characteristics  of  the  Bristol  Bay  Sockeye  Salmon
          Industry

          The  plaintiffs in this case are a class of  commercial

fishers  who  held limited entry permits and fished  for  sockeye

salmon  in  the  Bristol  Bay fishery during  the  seven  seasons

between 1989 and 1995.  The thirteen defendants are processors of

salmon,  who purchased the raw salmon directly from the  fishers,

as  well  as importers, who purchased processed salmon  from  the

processors for later importation and distribution in Japan.   The

processor  defendants are:  British Columbia Packers, Ltd./Nelbro

Packing  Co.  (Nelbro);1  Icicle Seafoods,  Inc.;  North  Pacific

Processors,  Inc. (NPPI); Unisea, Inc.; Wards Cove  Packing  Co.;

Trident  Seafoods  Corp.;  Peter Pan Seafoods,  Inc.;  and  Ocean

Beauty  Seafoods,  Inc.   The importer defendants  are:  Marubeni

          Corp./Marubeni American Corp. (Marubeni); Nippon Suisan Kaisha,

Ltd.  (Nissui);  Nichirei Corp.; Okaya & Co.,  Ltd./Okaya  (USA),

Inc./Okaya (Canada), Ltd. (Okaya); and Nichiro Corp.

          Most  fishers  in  Bristol  Bay  enter  into  unwritten

agreements  with processors to be part of a processor's  "fleet."

The processors commonly guarantee that they will purchase some or

all  of  their  fleet's  harvested salmon and  provide  important

services  to their fleet, including fuel and provisioning.   Many

fishers  switch  from one processor's fleet  to  another  between

seasons.

          The processors buy the raw salmon from the fishers at a

single,  homogeneous  price  per  pound  that  does  not   change

depending  on the size, sex, or quality of the salmon  harvested.

The  price paid per pound by the processors to the fishers varied

between   processors,   but  the  prices  generally   had   three

components:  (i)  an initial in-season2 price,  with  or  without

adjustments  during the season, (ii) a post-season  "adjustment,"

and  (iii) a "loyalty bonus."3  The defendant processors are  all

within  the top ten largest processors operating in Bristol  Bay,

who  collectively  bought between 70.7% and 77.2%  of  the  total

salmon  output  between 1989 and 1995.  The  defendant  importers

together  purchased between 21.7% and 36.4% of  the  Bristol  Bay

salmon between 1989 and 1995.

          The  procedure  for  setting the prices  paid  for  raw

salmon  varied  from  season  to season  and  from  processor  to

processor.   Some processors announced an in-season price  before

the season opened, while others required their fleets to fish  on

          an "open ticket," with only a nominal price or even no announced

in-season price at the start of the season.  Once announced,  the

in-season price was sometimes adjusted during the season.   After

the  season ended, the processors would sometimes issue  a  post-

season  "adjustment" to the in-season price, which would  replace

or  modify  the prices already set for the season.  In  addition,

some  processors  also issued to some or all of their  fishers  a

"production"  bonus,  based on a fisher's  number  or  volume  of

deliveries, and a "loyalty" bonus, based on factors determined by

the  processor.  During the season, the in-season prices paid  by

different  processors were a topic of frequent  discussion  among

fishers,  who found out about the prices through word  of  mouth,

from  local  media, from processor postings on tenders  receiving

fish, and on company bulletin boards.

          After the raw salmon was purchased and processed by the

processors,  it  was  in turn resold to importers.   All  of  the

importer defendants in this appeal purchased salmon for export to

Japan.   These Japanese importers maintain access to the  Bristol

Bay  salmon through contracts with processors and through  direct

ownership  -- three of the importer defendants own three  of  the

processor defendants.4

     B.   The Alleged Conspiracy

          From  1984  to 1988 total prices paid by the  defendant

processors  for  raw  salmon in Bristol Bay climbed  dramatically

until  they  reached over $2.00 per pound.  In  the  1989  season

these prices fell to about an average of $1.33 per pound; between

1989 and 1995 the average never rose above this level, falling to

          about $0.63 per pound in 1995.5

          The   defendants  presented  evidence   supporting   an

innocent explanation for the decline.  An expert witness for  the

defendants  maintains that the decline was caused by a  worldwide

salmon  glut that began in 1988.  And, a U.S. General  Accounting

Office  report gave three reasons for the decline in prices:  the

large  size  of the Bristol Bay catch, a glut in Japan,  and  the

importance of farmed salmon in the Japanese market.

          However,  the  plaintiffs claim that  this  decline  in

prices paid to fishers is the result of a price-fixing conspiracy

between  all  or  many of the large processors in collusion  with

importers.  The plaintiffs contend that there is both direct  and

circumstantial evidence of this conspiracy.

     C.   The Elements of the Alleged Conspiracy

          The  plaintiffs make three general claims: (1) that the

processors  agreed  among themselves to fix  current  and  future

prices  for  raw  salmon;  (2)  that  the  major  processors  and

importers   engaged  in  strong-arm  tactics  to  force   smaller

processors  to  accept  lower  prices;  and  (3)  that  importers

attempted  to manage, organize, and coordinate processor  efforts

to  lower  prices.   The  evidence  marshaled  to  support  these

theories is briefly summarized here.6

          1.   Agreements  between processors to fix current  and
               future prices

          The  plaintiffs claim that evidence in the record shows

that  the  defendant processors agreed to fix current and  future

prices at various times between 1989 and 1995.

               a.   Torres statement concerning 1991 actions

          In  a deposition, NPPI employee Robert Torres was asked

about  the  processors' offer of a $0.70 in-season  price  on  or

about  July  3,  1991.  Torres stated that on or  about  July  3,

"[b]asically  everybody" offered that price, and added,  "[w]ell,

they just agreed that they'll pay 70 cents."

               b.   "Price verification" phone calls

          The  processors  engaged in "price verification"  phone

calls  to verify each other's posted in-season prices.  Processor

employees  and officers testified that in these phone calls  they

called  each  other simply to confirm rumors of the  prices  that

other processors were offering as in-season prices.

          A Nelbro representative testified that these calls were

"fairly common."  These calls were generally limited to a request

to  verify  a  posted price and either a yes or no  answer  or  a

refusal  to respond.  However, some of the written notes made  by

participants in these conversations do indicate that other topics

--  such as the general characteristics of the run or the season,

and   perhaps  in-season  processor  prices  generally  --   were

sometimes  discussed.7   Also, a former employee  of  a  nonparty

processor  claimed  that  price verification  discussions  "would

usually  lead  into general discussions about the grounds  prices

being  paid by all processors of Bristol Bay sockeye."  This  was

generally  confirmed by another nonparty processor who  described

his  price verification conversations with nonparties as well  as

with Trident and Ocean Beauty.8  Also, another nonparty processor

claimed that during a price verification with Nelbro, the  Nelbro

          representative mentioned that "he had confirmed with Trident that

[Trident was] paying $1.00."

               c.   Actions during the 1991 strike

          The  plaintiffs also claim that the processors  engaged

in certain collusive price-fixing actions during the 1991 season.

During  this  season  there was a "strike"  after  several  major

processors attempted to force the fishers to accept open  tickets

and the fishers refused to fish.9

          On  June  24,  1991, apparently after  the  strike  was

underway,  handwritten  notes by a Wards Cove  employee  indicate

that Wards Cove and Nelbro representatives talked about making  a

"statement" about the strike; however, the record does not reveal

the content, subject, or outcome of that telephone call.

          On June 29 a Nelbro representative met with his fishers

and  asked them to fish under an open ticket, explaining that the

importers  who  were going to buy fish from the  processors  were

only  willing to do so during the 1991 season at very low prices.

The  representative  testified that he told  his  fishers:   "The

Japanese  have indicated that our market with them  is  going  to

have to drop drastically."  The representative indicated that  he

was  in  fact referring to the importer buyers.  Other processors

apparently also attempted to convince their fishers to fish under

open tickets or at low in-season prices.

          In   the  face  of  continued  refusals  to  fish,  the

processors  offered higher in-season prices.  On  June  29  Wards

Cove and Peter Pan offered an in-season price of $0.50, but these

offers  were  not  accepted,  although  some  Peter  Pan  fishers

          apparently did set out to fish.  The next day, Ocean Beauty

offered  an  in-season price of $0.65 to its  fishers,  and  this

offer was accepted.

          On  July 1 Trident and Peter Pan matched Ocean Beauty's

price,  offering an in-season price of $0.65; however, the offers

were not accepted by the fishers.  Wards Cove made the same offer

on  July  2, and their fishers indicated that they would  discuss

the offer in a meeting.

          The in-season price eventually settled at $0.70 for the

defendant processors, ending the strike.10  Nelbro offered  $0.70

on July 2, which was also initially refused, but was accepted the

next  day.   Wards Cove also offered $0.70 on July  3,  based  on

inaccurate information that Peter Pan posted $0.70.  The  fishers

accepted the Wards Cove offer on or about July 3.

          NPPI  also  settled  with its fishers  at  $0.70  after

withdrawing  a higher offer.  NPPI offered its fishers  $0.75  on

July  3  through a fisher intermediary.  However, this  deal  was

conditioned on a promise that the offer would not be released  to

the  media.  Before Nelbro's fishers had accepted Nelbro's  $0.70

offer,  Nelbro learned about NPPI's $0.75 offer,  as  well  as  a

rumored $0.75 offer by another nonparty processor.  However,  the

Nelbro  representative  called NPPI and the  other  processor  to

confirm  the price, and both processors denied it.  NPPI's  $0.75

offer  was leaked to the media, and even though the fishers tried

to accept the offer, NPPI rescinded it later on July 3.  The NPPI

fishers then accepted a $0.70 offer from NPPI, apparently also on

July 3.

               d.   Discussion of future in-season prices

          The  plaintiffs also claim that there is evidence  that

the  processors discussed future prices for in-season prices that

had not yet been set.

          First,  the record contains evidence of some discussion

among  the importer defendants that may concern a drive to  lower

in-season prices for the 1989 season.  At the start of  the  1989

season,  four  of the defendant processors (Nelbro,  NPPI,  Peter

Pan,  and Trident) posted prices of $1.25, while the three others

(Icicle, Ocean Beauty, and Wards Cove) had open tickets.  On June

10  Icicle  posted a price of $1.00.  Later, the  processors  who

posted $1.25 prices all adjusted their in-season prices downward,

non-retroactively, to $1.00 on June 24 (Peter  Pan  and  Trident)

and  25  (Nelbro  and NPPI).  On June 25 Wards Cove  matched  the

$1.00  price  by announcing its first in-season price  of  $1.00,

while  on  June  26  Ocean Beauty joined the  downward  trend  by

adjusting to $1.10.

          There  is  evidence that suggests that there  was  some

discussion  of  the  1989  prices in  advance  of  these  events.

Employees  of  Nelbro predicted, based on prices  established  in

other  fisheries with earlier seasons, that the price in  Bristol

Bay  would be $1.25.  Some importer employees reported a "desire"

or "intention" on the part of the processors to bring prices down

from  the  initial $1.25 level; one Nissui employee stated  in  a

memorandum written on June 20:  "There is a desire to start under

$1.00.  There is also an intention to bring the current price  of

$1.25 down later after seeing how the fishing is going."  Another

Nissui document stated that the major processors "show signs that

their  [in-season] prices will start at $1.00/lb."  In  addition,

on  May  18  and  June 22 there may have been some  conversations

between   Nelbro,   Peter  Pan,  and  Marubeni  employees   about

conditions for the run and possible pricing ranges.

          For  the  1990  season,  the defendant  processors  all

posted  in-season  prices of $1.00, with the exception  of  Ocean

Beauty,  which posted a price of $1.30.  Three of the  processors

(Nelbro,  Trident, and Wards Cove) all posted on  the  same  day,

July 1, while Peter Pan posted the next day.

          There may have been discussions of this $1.00 price  in

advance of July 1.  The record contains telexes from the nonparty

importer  Mitsui which document individual meetings that occurred

on  June  26,  1990, between Mitsui and Wards Cove,  and  Icicle,

where in-season prices may have been discussed.  A document  that

may  or  may not refer to that meeting notes that "Bristol Ground

Price dropping down to 1.00" from one or more of the processors.11

Also,  handwritten  notes indicate that a  Nelbro  representative

discussed  possible  in-season prices with  representatives  from

Marubeni (on May 23) and a nonparty importer (on June 6).  One or

both  participants  may have predicted prices of  $0.75-$1.00  or

$0.80-$1.00.12   After  talking to another Nelbro  employee,  the

Nelbro representative wrote, on June 29, that "a major advance at

1.00  is  most  likely."  On July 1, the day that  the  in-season

prices  were  set by Nelbro, Trident, and Wards Cove,  the  $1.00

figure for Nelbro and Trident was apparently known a few hours or

minutes in advance by representatives of Nelbro and Unisea.13

          Also,   further  discussions  about  this  $1.00  price

continued  after July 1.  Nelbro employees discussing the  matter

with  each  other noted that the $1.00 price was  holding:  "F.P.

still  posted  at 1.00 . . . P.Pan."  An internal importer  telex

from Mitsui stated that "fishermen's price for major packers  are

fixed at USD1.00 until further notice."

          There   is  also  evidence  in  the  record  concerning

discussions of prices in advance of the 1992 season.  All of  the

processors  apparently started the season  with  open  tickets,14

although there is conflicting evidence as to Peter Pan's actions.

Between June 15 and July 7 processors offered in-season prices of

$1.00-$1.05.   Some written notes of a June 17, 1992 conversation

between  Nelbro and Peter Pan employees contain a statement  that

may  concern  discussion  of the 1992  in-season  prices:  "Bay--

advance 1.00; close 22nd."

               e.   Joint  agreement to keep prices low in  other
                    fisheries

          The   record  also  contains  evidence  of  discussions

between  processors  and importers of prices in  fisheries  other

than Bristol Bay.

          The  False  Pass  salmon  run  was  considered  by  the

processors  to be a benchmark for Bristol Bay because the  salmon

run  in  False Pass occurs earlier than the Bristol Bay  run  and

because many fish caught there were fish actually en route to the

Bristol Bay salmon run.  One nonparty importer's telex -- from an

unknown year -- includes the statement:

          [T]here  is a rumor that two major companies,
          Peter Pan and Trident, are engaged in .  .  .
          laying  the groundwork so as to suppress  the
          fish  price  to  a maximum of  $1.00-0.70  in
          False Pass . . . .  [A] high fish price could
          very  well be considered a suicidal  act  for
          the processors themselves.  Therefore, we are
          speculating here that there won't be anything
          odd  about  major processors actually  taking
          action  to  keep  the fish price  as  low  as
          possible in order to prevent them from  going
          down all together.

          In  a  memorandum between representatives of Peter  Pan

and   Nichiro,  Peter  Pan's  corporate  parent,  the  Peter  Pan

representative  complained about the actions of an  importer  and

processor  in False Pass.  The memo states: "It has  come  to  my

attention . . . that [Shin Nishoku, a nonparty importer] is going

to  show  [Peter Pan and Trident] how to buy Red Salmon in  False

Pass.  One company that we know of who will be selling to him  is

New  West Fisheries. . . .  [C]ould you please be kind enough  to

check  this out at your end because as you know high prices again

in False Pass will not help False Pass or Bristol Bay."

          In  1992 in False Pass, some processors were apparently

concerned over Mitsui's plan to have a "cost plus" contract  with

a   nonparty  processor,  Yard  Arm  Knot  (YAK).   One  nonparty

processor  stated the concern to Mitsui that this contract  might

raise   prices.  However,  Mitsui's  contract  contained   "price

conditions" that contained a ceiling linked to pricing  by  Peter

Pan and Trident; otherwise the contract was in fact a "cost plus"

contract.15  Other processors may also have complained.

          There is also evidence of some discussion of prices  in

the  Kodiak  fishery in 1991.  As reported by a Mitsui  telex,  a

Wards  Cove  representative complained to Mitsui of  high  prices

paid  by  Ocean  Beauty in Kodiak ($0.92-$0.95): "[Ocean  Beauty]

          started paying this price and W.Cove followed.  [Wards Cove] is

wondering   who  are  buyers  of  [Ocean  Beauty's]   sockeye."16

Nicherei,  a  defendant importer who bought  from  Ocean  Beauty,

apparently  met  with  Ocean Beauty in an attempt  to  lower  the

price.  Wards Cove later announced its lowered price in Kodiak as

$0.80.  This $0.80 may have been common in Kodiak, since a Mitsui

document  noted that "we heard that [Kodiak] fish  price  falling

down  to . . . 0.80."  A Mitsui employee claimed that this  $0.80

price required a lowered $0.50 price in Bristol Bay.

          2.   Strong-arm   tactics   employed   against    minor
               processors

          The   second  category  of  evidence  concerns  alleged

efforts  by  importers and processors to force smaller processors

to offer lower prices to their fishers.

               a.   Pressure   applied   on  nonparty   processor
                    Woodbine

          Woodbine Alaska Fish Co. (Woodbine), which was  at  one

time  but  is  no  longer a defendant, is a small processor  that

offered  higher prices to aggressively attract fishers  from  the

other  processors.  For the 1990 and 1991 seasons, Mitsui  was  a

major  buyer of Woodbine's processed salmon.  In 1990 Mitsui  was

the  principal  buyer; in 1991 it bought about fifty  percent  of

Woodbine's salmon. Woodbine and Mitsui had a "cost plus" contract

for  some  quantity  of salmon processed on  Woodbine's  floating

processor.

          Mitsui  and  Woodbine representatives had conversations

in 1990 and 1991 in which Mitsui told Woodbine that Woodbine's in-

season prices were too high and that other processors were paying

          lower in-season prices.17  Mitsui told Woodbine that other

processors had complained to Mitsui about Woodbine's high  prices

--  in  particular,  Trident and Wards  Cove.18  Also,  there  is

evidence that Icicle and Nelbro representatives were concerned.19

Mitsui  also  threatened  Woodbine  with  ending  their  business

relationship because of the high in-season prices.20  The  Mitsui

representative claimed that Mitsui might be forced to stop  doing

business with Woodbine because other processors had threatened to

stop selling to Mitsui.21

          In response to this pressure, Woodbine did lower its in-

season prices during the 1990 and 1991 seasons because of concern

that  Mitsui  could withdraw funding assistance  "or  discontinue

purchasing [Woodbine's] products."22  In 1991 and 1992 its prices

--  respectively,  $0.70  and  $1.00  --  matched  those  of  the

defendant processors.

          However,  after 1992 Mitsui ceased to be a  significant

buyer of Woodbine's salmon.  After the 1992 season Mitsui refused

to  commit to preseason contracts and bought salmon from Woodbine

in only "relatively minor" spot sales.  A Woodbine representative

implied  that she believed that Mitsui took these actions because

Mitsui  shifted much of its buying to Wards Cove and that  Mitsui

responded to pressure applied by Wards Cove.23

               b.   Pressure   applied   on  nonparty   processor

                    Baypack

          Baypack  is a small processor that began operations  in

Bristol  Bay  in  1995.  Baypack had a contract  with  Nelbro  to

market  Baypack's salmon output.  However, just before  Baypack's

          floating processor vessel arrived in Bristol Bay, a Nelbro

representative began to state concerns about Baypack's  high  in-

season prices.  The Nelbro representative claimed that there  was

an  "uprising"  among Nelbro fishers when the fishers  found  out

that  Baypack fishers might get more money than Nelbro fishers.24

The  Nelbro  representative  also stated  that  Baypack's  higher

prices  would  "damage"  Nelbro's "neighbors"  --  Ocean  Beauty,

Trident,  and  Unisea -- by "taking away their  fishermen."   The

Nelbro  representative told Baypack that a Trident representative

had  said  that  "he  was going to bury [Baypack]."   The  Nelbro

representative later stated to the Baypack representative:  "What

the hell are you doing screwing up the industry by paying $1.10 a

pound in Ugashik?"

          Also, a Baypack representative testified that more than

halfway   through  the  season  he  had  "an  enraged   one-sided

discussion"  with  a Nelbro representative in  which  the  Nelbro

representative "accused [Baypack] of screwing up the industry  by

paying   an  outrageous  cash  price."   However,  despite   this

pressure,  there  is  no  evidence in  the  record  that  Baypack

responded by lowering its prices.

               c.   Pressure  applied on nonparty  importer  Shin
                    Nishoku and a nonparty processor

          A  Peter  Pan memorandum indicates that Peter  Pan  was

concerned  about the high prices paid by nonparty  importer  Shin

Nishoku  and  a nonparty processor during the 1990  season.   The

processor  was  using  a steamer supplied by  Nichiro  for  these

operations.    The  memorandum  indicates  that   a   Peter   Pan

          representative contacted Nichiro and "expressed in the strongest

possible  terms that that relationship is total contrary  to  the

good  of  Peter Pan and must be broken off or the result of  [the

nonparty  processor] paying very high raw fish prices could  have

tremendous  financial  impact  on  Peter  Pan."   The  Peter  Pan

representative testified that Nichiro terminated its services  to

the  small processor under pressure from Peter Pan; however,  the

Peter   Pan   representative  claimed  that  the  services   were

terminated  because  they were "illegal."   Later  the  processor

"went broke."

          3.   Importer     management,     organization,     and
               coordination of processor efforts to lower prices

          The  third category of evidence concerns the importers'

alleged efforts to manage the allegedly conspiratorial activities

of the processors.

               a.   The "Okaya Action Plan" for 1991

          In  December 1990 there were meetings between (1) Wards

Cove  and  Okaya  representatives (December 4), and  (2)  Nelbro,

Okaya,  and  Nichirei representatives (December 6) in  which  the

processors  were  presented with documents  that  the  plaintiffs

refer  to as the "Okaya Action Plan."  The document presented  to

Wards Cove stated:

          When  it comes to '91 Frozen Market Overview,
          we  feel going will get even tougher . . .  .
          In   a   nut   shell  our  market  could   be
          "completely a buyer's market" . .  .  .   The
          only possible way to overcome such difficulty
          and  wipe  out  the "buyer's market"  scar[e]
          would  be  the mutual cooperation  among  the
          packers  and  the importers in the  following
          points:  (a)  Fish  price reduction.  In  the
          extreme Bristol Bay Sockeye price may have to
          be reduced down drastically."

The  same  language  is  contained in the document  presented  to

Nelbro. In the Wards Cove document, Okaya also stated:

          Request for '91[:]
          We  would like to request you to keep  ground
          price  as  much as lower level  for  [coming]
          season,  and this eventually keeps reasonable
          FOB  price  to  sell in the  Japanese  market
          .  .  .  .  We are assure[d] that Wards  Cove
          Packing  as  a  leader of this  industry  can
          establish  reasonable FOB prices by enforcing
          to control the ground prices.

The  Wards  Cove  representative  testified  that  he  remembered

reading  these comments at the December meeting.  The Wards  Cove

representative  claimed that he said at that  meeting  that  what

Okaya   was   asking  "just  wasn't  possible  from  a  practical

standpoint, [because] we have no control over grounds  prices  in

Bristol  Bay"; and that "besides that, it was illegal."25   Also,

the  Okaya employee who drafted the "Action Plan" stated that the

phrase "mutual cooperation" did not mean cooperation to engage in

price-fixing:

          Q:   Is  there anything wrong, in your  view,
               with  packers and importers engaging  in
               mutual  cooperation  to  reduce  grounds
               prices or beach prices?

          A:   .  .  . one thing I can say for sure  --
               and  I  must say for sure -- is  that  I
               have no such intention.

And,  the Okaya employee testified that the Okaya representatives

told the Wards Cove representatives to "ignore" the whole section

of the "Action Plan" under the heading "Request for '91."

          The   document   presented  to  Nelbro   was   slightly

different,  but  it  also contains the first paragraph  mentioned

above  from  the Wards Cove document.  The Nelbro  document  also

          suggests that Nelbro should follow pricing set by Wards Cove:

          '91 Okaya's Proposal

          . . . .

          (B)  PRICING;  .  .  . (1) Basic  Price:  FOB
          Prices agreed between Wards Cove Packing  and
          their  traditional biggest  buyer  (Marubeni)
          for   the  same  grades/quality  Bristol  Bay
          Sockeye  produced  and shipped  in  the  same
          manner  as  NELBRO at the same  time  of  the
          season.

          . . . .

          Historically  speaking [Wards Cove's]  prices
          used  to be considered as the leading  market
          price for the Bristol Bay Sockeye . . . .  So
          we  believe [Wards Cove's] prices can be very
          useful  for  our reasonable pricing  for  the
          Japanese  buyers every season. .  .  .   [W]e
          don't believe [that Trident and Icicle]  have
          the  fair  reputation in the Japanese  market
          for the reasonable pricing in most cases.

               b.   Mitsui's  1991 "campaign" to lower  in-season
                    prices

          There  is  some evidence that, in advance of  the  1991

season,  Mitsui  representatives  contacted  some  processors  to

express the opinion that in-season prices should be about  $0.50.

Mitsui  apparently had the intention in February  1991  to  visit

processors,  including  at  least all of  the  defendants  except

Nelbro and Ocean Beauty, to find out "what ground price they  are

expecting."   Mitsui representatives actually did  visit  Icicle,

Wards Cove, Trident, NPPI, Woodbine, and YAK.  As for the meeting

with  Trident,  a February 12, 1991 internal Mitsui  telex  notes

that  during  this  visit Trident representatives  "agreed"  with

Mitsui's  "opinion" for a $0.50 price.  In a visit with  nonparty

processor  Lafayette, that processor "agree[d] prices  should  go

down,  but  how  far  is question."  Mitsui  employees  may  have

expressed Mitsui's opinion that in-season prices should be  about

$0.50  to  Wards  Cove and nonparty processor  Woodbine.26   This

opinion was also expressed in an internal document.27

          At  the  same time, other importers also may have  been

expressing "opinions" as to what the 1991 in-season price  should

be.   A Nelbro employee had a conversation with an unknown person

in  which that person told him: "Japan will ask for 10-20%  price

reduction,  then  negotiate  + compromise  [with  fishers]."   An

internal  telex of a nonparty importer stated:  "A lot of  people

here  in Japan think that the fish price should be $.50-.70,  and

most people believe that if it isn't at that price, they won't be

able to expand the sales."

               c.   1992 meetings organized by importers

          In   advance  of  the  1992  season,  importers   again

organized   meetings  with  processors  in  which  the  importers

apparently  advocated lower in-season prices.  Okaya  and  Nelbro

representatives   met   in   December   1991   and   the   Nelbro

representative's written notes stated: "91 we had low fish price.

It  would be bad to show strong interest during fishing season 92

affect  fish price.  [They] wanted answer now: Said no not  now."

During  the  season, an Okaya report dated June 18,  1992  stated

that "[a] beach price of $1.00 is what we desire, but if not,  we

want  the beach price to be held to a maximum of $1.25.  (In  the

worst  case,  it  may be up to $1.30.)"  The  report  noted  that

"[t]he  price does not get established by Nelbro singularly,  nor

does  it  get  dictated by the one-sided opinion of  YAK/Dragnet.

          Please do not forget the fact that the PRICE LEADER of Alaska . .

. is [Nelbro] vs. Marubeni."28

          There  may have also been meetings between (1)  Nichiro

and  Icicle, (2) Nichiro and Trident, and (3) Nichiro,  Marubeni,

and  NPPI  sometime  in  1992  in which  Nichiro  representatives

advocated or predicted an in-season price of $1.00.29

          Mitsui  also apparently attempted to make its  opinions

on  the  1992  in-season prices known.  An internal Mitsui  telex

stated "[w]e better give guidance to U.S. packers [on prices]  as

Japanese  voices,"  and  another telex  asked,  from  one  Mitsui

employee to another, "would you pls give us how market people are

thinking  about  new price level of Alaskan reds in  this  coming

season  so that we can give such feeling to Wards Cove/YAK/others

as  initial  input."  A May 1992 Mitsui report, which  was  "used

somehow  in  explaining situations to packers," stated  that  "we

believe  that  packers  can sell with  fishing  ground  price  at

USD1.00/LB."   This report was sent to Wards  Cove  in  June.   A

Mitsui  employee  apparently  knew  as  of  June  5,  1992   that

"acc[ording] to packers in [Seattle], they can pay USD1.00/LB  to

fishermen for Bristol red salmon . . . ."

               d.   Trade journal editorials

          A   June   10,   1989  article  in  a  Japanese   trade

publication,  Nikkan  Hokkai Keizai,  entitled  "Avoid  Excessive

Competition,"  seems to advocate price-fixing by  the  processors

and  importers  operating in Bristol Bay.   The  article  states:

"This year, it is about time when the distribution industry as  a

whole, including 'catchers,' review the prices of salmon. .  .  .

          Under these circumstances, some are seriously advocating that,

rather  than engaging in a useless purchase quantity contest,  it

is  time  to discern what the right prices should be in light  of

excessive  supply quantities in the market."  There  is  evidence

that importers read articles like this one and passed them on  to

processors.

     D.   Proceedings Below

          A  group  of plaintiffs commenced this action  in  June

1995, and a plaintiff class was certified on January 2, 1997.

          During the discovery period, on September 21, 1998, the

superior court limited discovery so as to exclude the plaintiffs'

claims  of "alter ego" with respect to certain defendants because

those  claims  were  not pled in the plaintiffs'  fourth  amended

complaint.  The plaintiffs appeal this ruling.

          On  April  28, 1999, the superior court held  that  the

statute  of  limitations, AS 45.50.588, did not  apply  to  limit

plaintiffs' damages to those suffered for four years  before  the

filing  of  the complaint.  All of the defendants have  joined  a

cross-appeal  on this issue, opposed by both the  plaintiffs  and

amici  curiae states including Alaska, Hawaii, Minnesota, Nevada,

New Mexico, and West Virginia.

          After the plaintiffs settled with some defendants,  the

superior court granted summary judgment as to all other processor

and  importer  defendants.  The defendants moved  for  costs  and

attorney's fees, but the superior court denied that motion.   The

superior court issued a final judgment on December 1, 1999.   The

plaintiffs  appeal  the  grant  of summary  judgment,  while  the

defendants  cross-appeal the denial of the motion for  attorney's

fees and costs.

          Some defendants also moved for summary judgment on  the

theory  that the plaintiffs had presented no evidence of provable

damages.30  This motion was not ruled on by the superior court.

III. STANDARD OF REVIEW

          The  standard  of  review for an  appeal  from  summary

judgment is de novo.31  We will affirm a grant of summary judgment

if there are no genuine issues of material fact and if the movant

is  entitled to judgment as a matter of law.32  When making  this

determination, we draw all reasonable inferences in favor of  the

non-movant.33  If in reviewing a summary judgment we must  answer

questions  of  law, we will adopt the rule of law  that  is  most

persuasive in light of precedent, reason, and policy.34  Moreover,

we  may affirm a grant of summary judgment on grounds other  than

those  advanced  by the lower court or parties.35     The  movant

bears  the initial burden of proving through admissible  evidence

(1) the absence of genuine fact disputes, and (2) its entitlement

to judgment as a matter of law.36  Once the movant has established

a  prima facie case, the non-movant, in order to prevent entry of

summary  judgment,  is  required "to  set  forth  specific  facts

showing  that  [it] could produce admissible evidence  reasonably

tending to dispute or contradict the movant's evidence, and  thus

demonstrate that a material issue of fact exists."37

          In  the  course  of  reviewing  the  grant  of  summary

judgment,  we  must  review evidentiary  decisions  made  by  the

superior  court;  these  decisions  are  reviewed  for  abuse  of

          discretion.38

          We  must also consider the issue of whether a claim was

properly pled under Alaska Civil Rule 8(a).  Because we  are  "in

virtually the same position as the trial court in its ability  to

assess the adequacy of the pleadings," this issue is reviewed  de

novo.39

          Finally, we must interpret AS 45.50.588, the statute of

limitations  for  antitrust actions.  This is a question  of  law

that we will review de novo.40

IV.  DISCUSSION

     A.   Summary Judgment Principles in the Antitrust Context

          1.   Alaska Statute 45.50.562

          Alaska   Statute  45.50.562  is  the  basis   for   the

plaintiffs' claims in this case.  It states that "every contract,

combination in the form of trust or otherwise, or conspiracy,  in

restraint of trade or commerce is unlawful."

          We  have  noted that claims brought under AS  45.50.562

are  analogous to claims brought under  1 of the federal  Sherman

Act,41  and  that federal cases construing  1 of the Sherman  Act

will  be  used as a guide.42  Antitrust claims under AS 45.50.562

are either "per se" claims or "rule of reason" claims.43  Per  se

claims  concern alleged behavior that, if proven, is  clearly  an

illegal  restraint on trade; other types of alleged  conduct  are

subject  to  the rule of reason standard in which the  factfinder

must  determine  whether  the restraint  is  unreasonable.44   To

establish  a  prima facie case under AS 45.50.562, the  plaintiff

must  prove  three  elements:  "(1) an  agreement  or  conspiracy

          involving two or more persons or distinct business entities; (2)

by  which  the persons or entities intended to harm  or  restrain

competition; and (3) which actually injures competition."45

          The plaintiffs' allegations here are per se allegations

because they are allegations of a conspiracy to fix prices.46  As

we  have noted, the usual price-fixing situation is one in  which

sellers conspire to fix prices; however, purchasers such  as  the

processors and importers in this appeal, when "acting in  concert

to affect prices," may violate AS 45.50.562.47

          We  have also noted, when reviewing summary judgment in

cases of this kind, that the particular factual circumstances are

critically  important: "Sherman Act cases of this kind  generally

must be determined on the facts of each case."48  Summary judgment

"should  be used sparingly in antitrust litigation," and  "[w]hen

an  antitrust  plaintiff has established a prima facie  case,  he

should  have  an  opportunity to prove the  necessary  supporting

facts at trial."49

          2.   Alaska summary judgment principles

          We will affirm summary judgment if there are no genuine

issues  of  material fact and if the moving party is entitled  to

judgment as a matter of law.50  The non-movant "need not establish

that  he  will ultimately prevail at trial."  That is,  the  non-

movant is not required to submit evidence that tends to show that

the  non-movant could prove its case by satisfying  the  relevant

burden of proof at trial.51

          In making this determination, all reasonable inferences

are made in favor of the non-movant.52  Reasonable inferences are

          those inferences that a reasonable factfinder could draw from the

plaintiff's evidence.53  However, the plaintiff must present more

than  a  "scintilla" of evidence to avoid summary  judgment;  the

plaintiff  must present enough evidence to "reasonably tend[]  to

dispute or contradict" the evidence presented by the defendant.54

          We have indicated that we will not engage in a weighing

of  the  evidence on summary judgment; there is a "genuine issue"

of  material  fact as long as the non-movant has  presented  some

evidence in support of its legal theory.  In Moffatt v. Brown, we

rejected  a  summary  judgment standard for  defamation  used  by

federal  courts because it incorporated a substantive evidentiary

standard   into   the  summary  judgment  analysis,   "inevitably

implicat[ing] a weighing of the evidence."55  In Meyer v.  State,

Department of Revenue, Child Support Enforcement Division ex rel.

N.G.T.,  we  held  that  a  putative  father's  sworn  denial  of

paternity  was enough to prevent summary judgment,  even  in  the

face of strong scientific evidence showing his paternity, because

"any  evidence  sufficient to raise a genuine issue  of  material

fact  precludes  a  summary  finding  of  paternity."56   As   we

reaffirmed,   we  "do[]  not  weigh  the  evidence   or   witness

credibility on summary judgment."57

          3.   Federal antitrust decisions

          We  use  federal law as a guide when considering claims

brought under AS 45.50.562.58  Federal courts have noted that the

non-movant's  evidence  should not  be  "compartmentalized,"  but

should  be considered as a whole, to determine whether  it  gives

rise  to  a reasonable inference of antitrust conspiracy.59   The

          plaintiff's evidence of a conspiracy may either be direct or

circumstantial.  The difference is that "[d]irect evidence  in  a

Section  1  conspiracy  must be evidence  that  is  explicit  and

requires no inferences to establish the proposition or conclusion

being asserted."60  That is, "with direct evidence the fact finder

is  not  required  to  make  inferences  to  establish  facts."61

Therefore,   if   the  plaintiff  presents  only   circumstantial

evidence, the factfinder must make inferences from that  evidence

to  find an antitrust conspiracy.  A plaintiff is not required to

present any direct evidence, but may support his case solely with

circumstantial evidence.62

          If the plaintiff relies on circumstantial evidence, the

United  States  Supreme Court's decision in  Matsushita  Electric

Industrial  Co.  v.  Zenith Radio Corp.63 becomes  relevant.   In

Matsushita,  the  Court  considered an  alleged  Sherman  Act   1

conspiracy  in which television manufacturers, in order  to  reap

monopoly profits later, conspired to engage in predatory  pricing

in  the  U.S.  market by conspiring to keep prices low  to  force

others out of the market.64  The Court reviewed a grant of summary

judgment  in  favor  of the defendants.  Noting  that  reasonable

inferences are to be drawn in favor of the non-moving party,  the

Court  stated that its earlier decision in Monsanto Co. v. Spray-

Rite Service Corp.65 limited "the range of permissible inferences

from ambiguous evidence in a  1 case":

          [C]onduct   as  consistent  with  permissible
          competition  as with illegal conspiracy  does
          not, standing alone, support an inference  of
          antitrust  conspiracy.  To survive  a  motion
          for   summary  judgment  or  for  a  directed
          verdict,  a plaintiff seeking damages  for  a
          violation  of  1 must present evidence  "that
          tends  to  exclude the possibility" that  the
          alleged   conspirators  acted  independently.
          [The  plaintiff], in other words,  must  show
          that   the   inference   of   conspiracy   is
          reasonable   in   light  of   the   competing
          inferences of independent action or collusive
          action  that  could  not  have  harmed   [the
          plaintiff].[66]

In  Matsushita,  the Court went on to apply these  principles  to

affirm  summary judgment because the plaintiffs' evidence, viewed

together,  did  not  give  rise  to  a  reasonable  inference  of

conspiracy:   The  cost-cutting  behavior  engaged  in   by   the

defendants was plausibly competitive behavior, and the defendants

had no incentives to join in the alleged conspiracy.67  The Court

also  noted that the predatory pricing conspiracy alleged by  the

plaintiffs   was   "economically  senseless":    The   defendants

allegedly  conspired  to  "destroy companies  larger  and  better

established than themselves, a goal that remains far distant more

than  two  decades  after the conspiracy's birth."68   The  Court

therefore  implied  that  this "economic senselessness"  provided

another basis for its ruling that there was no genuine issue of a

conspiracy for trial.69

          Federal courts have interpreted Matsushita to require a

two-part  test for summary judgment.  Under this test, the  court

first  determines if the plaintiff's evidence is  "ambiguous"  --

that  is,  if  the evidence is of conduct that is "as  consistent

with  permissible competition as with illegal conspiracy."70   If

so, the plaintiff only avoids summary judgment if it submits some

evidence  that  "tend[s]  to exclude  the  possibility  that  the

defendants acted independently."71



          As  the  plaintiffs point out, the Matsushita  test  is

only  relevant  if  the  plaintiffs  have  not  presented  direct

evidence  of  a  conspiracy because the  Matsushita  analysis  is

concerned  with  the  reasonableness  of  inferences  drawn  from

circumstantial evidence.  As the Third Circuit Court  of  Appeals

noted,   "if  a  plaintiff  provide[s]  direct  evidence   of   a

conspiracy,  then the strictures of Matsushita  d[o]  not  apply"

because  "no  inferences  are required from  direct  evidence  to

establish a fact and thus a court need not be concerned about the

reasonableness of the inferences to be drawn from such evidence."72

          Moreover,  when  the plaintiffs' theory  of  conspiracy

does   rely   entirely  on  circumstantial  evidence,  Matsushita

requires that this evidence "be evaluated in its factual context"

to  see  if  the  summary judgment record as a whole  provides  a

specific factual basis that, if accepted as true, would "'tend to

exclude  the  possibility'  that the alleged  conspirators  acted

independently."73 We do not read Matsushita to "give every  judge

hearing  a motion for summary judgment in an antitrust  case  the

job  of  determining  if  the evidence  makes  the  inference  of

conspiracy more probable than not."74  In this sense, the case is

consistent  with  our decisions in Meyer75 and  Moffatt,76  which

preclude  courts  from weighing summary judgment  evidence.   The

concern  in  Matsushita  is  not with  the  weight  of  competing

evidence  but with the existence of a rational basis for  drawing

contextually  plausible  inferences from circumstantial  evidence

that  in  theory could go either way.  The case does  not  permit

          summary judgment to be granted if the record as a whole,

realistically  viewed,  would allow a reasonable  juror  to  draw

rational  inferences  in  favor of each party  depending  on  the

juror's  view  of disputed factual evidence rather than  abstract

economic theory.

          Furthermore,   when   the   plaintiff's    theory    is

specifically  based  on  "conscious  parallelism,"  there  is  an

established procedure for determining whether the evidence  tends

to  exclude  the possibility of independent action.  A "conscious

parallelism" theory is one in which the plaintiff claims that the

defendants   engaged  in  "consciously  parallel"  conspiratorial

behavior,  such  as a group of defendant buyers  who  engaged  in

setting  parallel  prices.77  As many courts have  recognized,  a

plaintiff  may  not  rely  entirely on  evidence  of  consciously

parallel behavior:  "[P]arallel conduct alone will not suffice as

evidence  of . . . a conspiracy, even if the defendants knew  the

other  defendant  companies  were  doing  likewise."78   If   the

plaintiff's  theory  is  based  on  conscious  parallelism,   the

plaintiff  must present evidence of one or more "plus factors."79

As  the  defendants acknowledged at oral argument,80  these  plus

factors  supply the required evidence that tends to  exclude  the

possibility  of independent action, preventing the imposition  of

summary judgment for the defendants.81

          The  required plus factors may include evidence of: (a)

actions  contrary  to  the defendants' economic  interest;82  (b)

motive  to  enter the conspiracy;83 (c) a traditional  conspiracy

agreement;84 (d) interdefendant conspiratorial communications;85 or

          (e) attempts to control or influence the behavior of other

nondefendant sellers or buyers who could thwart the conspiracy.86

Once the plaintiff has submitted evidence of "plus factors,"  the

plaintiff  will have demonstrated that there is a material  issue

of fact, and summary judgment must be denied.

     B.   Material  Issues  of Fact Require Reversal  of  Summary

          Judgment.

          The  defendants  filed both individual  and  collective

motions  for  summary  judgment, and the superior  court  granted

summary   judgment   on   the  two  collective   motions   filed,

respectively,  by the importer defendants and the  defendants  in

their  entirety. Because there are material issues of fact as  to

whether a conspiracy to fix prices existed between 1989 and 1995,

we reverse these rulings.

          The  only  ruling  that is before us  is  the  superior

court's  ruling  on  the defendants' two collective  motions  for

summary  judgment.  The superior court granted  summary  judgment

for  the  processors because it held that there were no  material

issues of fact on the existence of an antitrust conspiracy joined

by  the processor defendants.  As for the importers, the superior

court  similarly held that there were no material issues of  fact

as  to  whether the importers "collectively" joined an  antitrust

conspiracy.

          Because  the plaintiffs' evidence does create an  issue

of  fact  as  to  the  existence  of  a  price-fixing  conspiracy

involving  some  or  all  of  the defendants,  we  reverse  these

rulings.   However, our decision is limited to the  existence  of

          the conspiracy alone.  We take no position as to whether some

individual defendants may be entitled to summary judgment because

there is no evidence connecting them to the conspiracy.87

          The  superior court held that the defendants met  their

burden   of   proof  for  summary  judgment  by   denying   their

participation in any price-fixing conspiracy.  As we have  noted,

the  movant  for  summary judgment bears the  initial  burden  of

"establishing the absence of a genuine issue as to  any  material

fact."88   The  plaintiffs do not contest  the  superior  court's

ruling that the defendants satisfied their initial burden through

their denials.89 Therefore, the burden shifts to the plaintiffs to

show that there is a material issue of fact for trial.

          As discussed above, our analysis of summary judgment in

an  antitrust price-fixing conspiracy case requires us to inquire

initially whether the plaintiffs presented direct evidence  of  a

price-fixing conspiracy; if not, we must further determine if the

plaintiffs'  circumstantial evidence  is  supported  by  evidence

tending   to  exclude  the  possibility  of  independent  action.

Because   much of the plaintiffs' evidence in this case tends  to

exclude  the  possibility of independent action, we  reverse  the

grant of summary judgment below.

          1.   The  plaintiffs have not presented direct evidence
               of a price-fixing conspiracy.

          The  plaintiffs  argue  that four  groups  of  evidence

constitute   direct   evidence   of   conspiracy:    (a)    price

verifications, (b) pressure applied on Woodbine and Baypack,  (c)

NPPI's  actions  during the 1991 strike,  and  (d)  future  price

          discussions.  Each of these will be considered in turn.

               a.   Price verifications

          As   already   discussed,   the   evidence   of   price

verifications,  at  most,  shows  that  in-season   prices   were

verified, and that sometimes "general discussions" about  pricing

took  place,  including  discussion of adjustments  in  preceding

years,  the  quality of an upcoming salmon run, prices  in  other

fisheries,  and  speculation  about  market  conditions  for  the

upcoming  season.   None of this constitutes direct  evidence  of

conspiracy  because  in  order  to  conclude  that  there  was  a

conspiracy,  the  factfinder  would  need  to  infer  that  these

discussions were part of or included agreements to fix prices.90

               b.   Pressure   applied  to  nonparty   processors
                    Woodbine and Baypack

          The  superior  court  discussed  the  possibility  that

evidence concerning the pressure applied to Woodbine and  Baypack

might  constitute  direct evidence of conspiracy.   The  superior

court  held  that  this evidence is not direct  evidence  because

several inferences are required to reach a conclusion that  there

is a conspiracy from this evidence.

          The  plaintiffs presented evidence tending to show that

some  processor  defendants were concerned about Woodbine's  high

prices  and  that the defendants complained to Mitsui  about  it.

However,  the  evidence  is  inconclusive  as  to  whether  these

defendants  complained individually or collectively,  or  whether

they  reached any agreement concerning Woodbine.  As for Baypack,

there  is evidence that Nelbro complained to Baypack, and  Nelbro

          apparently claimed that Baypack would "damage" other processors.

But  the plaintiffs have presented no direct evidence that Nelbro

met with any other processors or came to any agreement with other

processors  concerning Baypack.  No conclusion of  conspiracy  is

possible without inferences that the processors coordinated their

actions  with other processors in the course of making complaints

about Woodbine and Baypack.

               c.   NPPI's actions during the 1991 strike

          As  already  discussed, during  the  1991  strike  NPPI

offered its fishers a $0.75 price on the condition that the price

be  kept  from  the media.  Nelbro and Peter Pan  representatives

somehow  learned of the offer and contacted NPPI to  confirm  the

price.  NPPI subsequently rescinded the offer.

          The  evidence of NPPI's actions is not direct  evidence

of   conspiracy  because  in  order  to  reach  a  conclusion  of

conspiracy  the  factfinder would have to infer that  Nelbro  and

Peter Pan's price verifications were part of a tacit agreement to

fix or lower prices.

          The  plaintiffs also claim that a statement by an  NPPI

employee  concerning the 1991 strike constitutes direct  evidence

of  conspiracy.   In  a  deposition, NPPI  representative  Robert

Torres  made  the  following statement concerning  the  in-season

prices offered to fishers during the 1991 strike:

          A:   [I]nitially we offered our fishermen  60
               cents.   [Later,] [w]e offered 65 cents.
               And  then  about July 2nd we offered  70
               cents.

          Q:   And that's when they went fishing?

          A:   Well,  that's when they all voted --  it
               was  not  -- I think, you know,  it  was
               like  . . . they were voting as a  group
               and they all accepted I guess.

          Q:   I  see.   Were  there  other  processors
               offering 70 cents at that time or--

          A:   No.   I mean, well, I think 70 cents was
               offered  about four days .  .  .  before
               that  by another fish company.  And they
               rejected it.

          Q:   Oh, they did?

          A:   Yes,  I  think Nelbro offered 70  cents,
               but -- in Egegik about the 28th of June.

          Q:   Okay.    Do  you  recall  if  any  other
               processors  were offering  70  cents  by
               around the July 3rd period?

          A:   Everybody was.

          Q:   Everybody was?

          A:   Basically  everybody.  Well,  they  just
               agreed they'll pay 70 cents.

          Q:   The fishermen agreed?

          A:   (No audible response).

In  another  deposition, Torres was asked about his  response  to

this last question, and he claimed that he nodded in response.

          The   Torres  statement  does  not  constitute   direct

evidence  of  conspiracy.  On its face, the deposition  testimony

could  be understood to mean that the processors "agreed" between

themselves  to  pay $0.70.  However, the statement  is  ambiguous

because  it  could also be understood to mean that the processors

each individually "agreed" with their fisher fleets to pay $0.70,

especially when both deposition excerpts are read together.  This

is not direct evidence of conspiracy.

               d.   Future price discussions

          The  plaintiffs  presented  evidence  of  future  price

discussions  in advance of the 1989, 1990, and 1992 seasons.   In

1989 some processors started the season with in-season prices  of

$1.25 but eventually most processors settled at $1.00 on June  24

or  June  25.  Before the season, Nelbro employees predicted  the

$1.25  price; some importer employees predicted it  as  well  and

stated  that  there  was  a  general desire  or  intention  among

processors to bring that price down to $1.00.

          This  evidence  from  the 1989  season  is  not  direct

evidence  of  conspiracy because the factfinder must  infer  that

Nelbro's prediction was tied to an agreement or that the  general

"desire"  or  "intention"  to  lower  prices  was  more  than   a

unilateral attitude held by one or more processors individually.91

          In  1990  most  of the processors posted  an  in-season

price  of $1.00.  The plaintiffs' evidence shows that before  the

season a Nelbro representative separately discussed possible  in-

season  prices with representatives from Marubeni and a  nonparty

importer.  Notes from these meetings state simply: "Last Yr. F.P.

1-1.25 . . . 75c -- Likely 1.00" and "B.Bay fish price maybe  80-

90-1.00."   After these meetings, a Nelbro representative  wrote:

"[A]  major  advance  at  1.00 is most likely."   This  does  not

constitute  direct evidence of conspiracy because the  notes  are

ambiguous  and  the factfinder would have to infer  agreement  on

price levels to find a conspiracy.92

          In  1992 most of the processors posted in-season prices

of  $1.00.   Written notes from a June 17, 1992  meeting  between

Nelbro  and  Peter Pan state: "Bay -- advance 1.00; close  22nd."

          This statement, like the others considered above, requires an

inference to conclude that this was part of an agreement  to  fix

pricing.

          2.   Some  of the plaintiffs' evidence tends to exclude
               the possibility of independent action.

          As  discussed  earlier, under the Matsushita  analysis,

the  defendant  is  not  entitled  to  summary  judgment  if  the

plaintiff presents evidence that tends to exclude the possibility

of  independent action.  Where the plaintiff's theory is based on

"conscious parallelism," the plaintiff may present evidence  that

tends  to  exclude  the  possibility  of  independent  action  by

submitting evidence that constitutes "plus factors."93  Therefore,

a  plaintiff in an antitrust price-fixing case may avoid  summary

judgment  by  presenting evidence that tends to show  consciously

parallel behavior in addition to plus factors.

               a.   Conscious parallelism

          Evidence  of  conscious parallelism is  evidence:  "(1)

that  the  defendants' behavior was parallel [and] (2)  that  the

defendants were conscious of each other's conduct and  that  this

awareness was an element in their decision-making processes."94

          The  superior court held that the plaintiffs'  evidence

supported a reasonable inference of conscious parallelism because

"the  evidence  shows that processors' conduct was  parallel  and

interdependent."   The superior court noted  that  the  defendant

processors  conceded  in the defendants'  collective  motion  for

summary judgment that prices were parallel.  Some defendants also

appear to make this concession on appeal.

          Even  without  a  concession, conscious parallelism  is

established by the plaintiffs' evidence.  Evidence in the  record

tends to show that, while not perfectly parallel, prices paid  by

the  defendant  processors between 1989 and 1995  were  within  a

tight  range and were often exactly parallel.95  And the evidence

of  price  verifications tends to show that the  defendants  were

conscious of each other's conduct and that this awareness was  an

element  in their decision-making processes.  All eight processor

defendants  engaged  in  price  verifications.   There  is   also

evidence that the defendant processors' knowledge of each other's

prices  was an element in their decision-making.  As a Peter  Pan

representative explained:

          Q:   And   why  do  you  verify  prices  that
               another  [processor] is paying fishermen
               in the Bay?
          A:   We get a lot of information and feedback
               from  fishermen, and they  all  seem  to
               have relatives or friends that fish  for
               other  companies.   But  sometimes   the
               information  you get from  fishermen  is
               not accurate.

          Q:   And why would you want to verify what  a
               competitor is paying?

          A:   Well,  we want to know that the  --  the
               information  is accurate.  We  certainly
               would  not  want to react to information
               that was inaccurate.

          Q:   When you say you don't want to react  to
               information  that's inaccurate,  do  you
               want  to  react to what a competitor  is
               paying?

          A:   If  we  want  to  keep  and  maintain  a
               fishing fleet, we have to.

Other testimony also tends to show that processors used the price

verifications  in  their  decision-making.   Together  with   the

evidence  of  parallel prices, this evidence tends  to  establish

conscious parallelism.

               b.   Plus factors

          The  plaintiffs  presented several pieces  of  evidence

that constitute plus factors.  These will be discussed in turn.

                    i.   Torres statement concerning 1991 actions

          As  already  discussed, the statement by NPPI  employee

Robert  Torres  concerning the 1991 strike can be read  to  state

that  the  processors "agreed" between themselves to collectively

offer an in-season price of $0.70 to settle the strike.  Evidence

of a traditional conspiracy agreement is a plus factor,96 and the

Torres  statement  qualifies  as  such  because  it  supports   a

reasonable inference that some or all of the defendant processors

agreed to fix prices for raw salmon.

                    ii.  Future price discussions

          Some  of  the  plaintiffs' evidence  concerning  future

price   discussions  tends  to  show  that  defendant  processors

communicated  their  intentions  for  future  prices   to   other

defendant processors or importers.  In particular, in 1989 Nissui

employees   made  statements  tending  to  show   that   multiple

processors made communications concerning future prices to  them:

"There  is  a  desire to start under $1.00.   There  is  also  an

intention  to bring the current price of $1.25 down  later  after

seeing how the fishing is going."  Another Nissui document stated

that  the  major  processors "show signs that  their  [in-season]

price will start at $1.00/lb."  Also, the intention to bring  the

initial  $1.25 price down to $1.00 could have been  discussed  by

          employees of Nelbro and Peter Pan, and Nelbro and Marubeni.

Notes from these stated: "Two-tier price" and "F[ish] P[rice] Bay

. . . 1.00."

          In  1990  an employee of a nonparty processor testified

that  a Nelbro representative told him on July 1, 1990, the  same

day  that  prices were posted, that Trident had "confirmed"  with

Nelbro  that  "[Trident  was] paying $1.00"  and  that,  for  the

season, "[t]hey were going to pay between $1.00 and $1.50."

          In  1992,  five  days before Nelbro  posted  its  $1.00

price, notes from a June 17 meeting between Nelbro and Peter  Pan

state:  "Bay  -- advance 1.00; close 22nd," which tends  to  show

that  this  price  intention was communicated  to  Peter  Pan  by

Nelbro.

          Evidence of collusive interdefendant communications  is

a  "plus  factor,"97 and the evidence of future price discussions

noted  here  qualifies as such98 because it tends  to  show  that

defendants communicated to each other their intentions for future

prices,  which  would be necessary to fix prices for  the  salmon

that the defendants were buying.

                    iii. Pressure  applied on nonparty processors
                         Woodbine  and Baypack, and  on  nonparty
                         importer Shin Nishoku

          The  plaintiffs' evidence tends to show that  defendant

processors  applied pressure on smaller processors and  importers

in an apparent attempt to force them to lower their prices to the

prices paid by the defendant processors.

          In   1990  and  1991  nonparty  importer  Mitsui   told

Woodbine,  a small nonparty processor, that its in-season  prices

          were too high and that Trident and Wards Cove had complained

about  these prices.99  Other evidence tends to show that  Icicle

and  Nelbro  were  concerned.  Mitsui  threatened  Woodbine  with

termination  of  their business relationship,  and  Woodbine  did

lower the prices as a result, matching the prevailing prices used

by the defendants in 1991 and 1992.

          In  1995  Nelbro representatives complained to Baypack,

another  small  nonparty processor, about  its  higher  in-season

prices.   The  Nelbro representative told Baypack that  Baypack's

higher  prices  would  "damage"  Nelbro's  "neighbors"  --  Ocean

Beauty,  Trident, and Unisea -- by "taking away their fishermen."

The   Nelbro   representative  told  Baypack   that   a   Trident

representative had said "he was going to bury [Baypack]."   Also,

a  Nelbro  representative "accused [Baypack] of screwing  up  the

industry by paying an outrageous cash price."

          Finally,  other evidence concerns pressure  exerted  in

1990 on nonparty importer Shin Nishoku, which bought fish from  a

nonparty  processor.   The  nonparty  processor  used  a  tramper

supplied  by  Nichiro,  and a Peter Pan representative  expressed

concern to Nichiro about the high prices paid by Shin Nishoku and

its  processor.  The Peter Pan representative "expressed  in  the

strongest  possible  terms  that that relationship  is  total[ly]

contrary to the good of Peter Pan and must be broken off . . . ."

Subsequently,  Nichiro  terminated  its  services  to  the  small

processor.

          Evidence  of  attempts  to  control  or  influence  the

behavior  of  independent, nondefendant buyers who  threaten  the

          conspiracy is a plus factor,100 and the evidence of pressure

exerted on small processors and importers noted here qualifies as

such.101  This evidence tends to show that defendant processors and

importers  collaborated to exert pressure on  smaller  processors

and importers who offered higher salmon prices and threatened the

stability of the lower prevailing market prices in Bristol Bay.

                    iv.  The "Okaya Action Plan" for 1991

          The  plaintiffs presented evidence that tends  to  show

that  in  December 1990 Okaya representatives presented documents

to  Wards  Cove  and  Nelbro that suggested "mutual  cooperation"

between  processors  and importers.  The  document  presented  to

Wards Cove noted: "We are assure[d] that Wards Cove Packing as  a

leader  of  this industry can establish reasonable FOB prices  by

enforcing  to control the ground prices."  The document presented

to  Nelbro stated that "we believe [Wards Cove's] prices  can  be

very  useful  for our reasonable pricing for the Japanese  buyers

every season."

          As  already noted, evidence of a traditional conspiracy

agreement is a "plus factor."102  However, as the defendants point

out, the evidence presented by the plaintiffs does not qualify as

such  unless there is evidence of both an invitation to  collude,

as  well  as  acceptance of that invitation.103  The  plaintiffs'

evidence  constitutes a "plus factor" because it  tends  to  show

that  there was an invitation to collude and that Wards Cove  and

Trident  accepted  that invitation.  The documents  presented  by

Okaya  provide  evidence  tending to  establish  the  invitation.

Acceptance  can  reasonably be inferred from  the  evidence  that

          Wards Cove set a low initial price in 1991 before other defendant

processors,104  from  the  evidence that Trident  representatives

"agreed" with Mitsui's suggestion of a $0.50 initial price  in  a

February  1991  meeting, and from the evidence that  Trident  and

Wards Cove applied pressure on Woodbine by complaining to Mitsui.

Therefore,  the  evidence  concerning  the  "Okaya  Action  Plan"

constitutes  a  "plus factor."  The evidence of  "plus  factors,"

along   with   the  evidence  tending  to  establish   "conscious

parallelism,"  creates  issues  of  material  fact  that  require

reversal of both collective motions for summary judgment.105,106

     C.   The  Plaintiffs Properly Pled Their "Alter Ego"  Theory
          of Liability.

          Because  we  reverse the grant of summary judgment,  we

must reach a second issue raised by the plaintiffs -- whether the

plaintiffs'  "alter ego" theory of liability for  three  importer

defendants was properly pled under Civil Rule 8(a).107  Under this

corporate  "alter ego" theory, the plaintiffs seek to hold  three

of the defendant importers liable (Marubeni, Nissui, and Nichiro)

for  the  actions  of  defendant processors (respectively,  NPPI,

Unisea,  and  Peter  Pan) that are wholly owned  subsidiaries  of

these importers.

          The  superior  court  affirmed the  discovery  master's

order  that  ruled  that the plaintiffs did  not  properly  plead

corporate "alter ego" claims, and therefore discovery was limited

to  exclude these claims.  The plaintiffs ask us to reverse  this

ruling.

          In  their fourth amended complaint, the plaintiffs  did

          not explicitly mention any theory of corporate veil piercing.

Instead, the complaint noted in each case that the processor  was

the subsidiary or agent of the importer:

          Upon information and belief, defendant [NPPI]
          is  a  Washington corporation . . .  .   Upon
          information  and  belief,  until  1994   said
          defendant was wholly owned and controlled by,
          and/or was the agent of [Marubeni] . . .  and
          since   1994  has  been  wholly   owned   and
          controlled    by   and/or   an    agent    of
          principal/defendant  [Marubeni]  .  .  .  and
          another corporate subsidiary of [Marubeni].

The  complaint contains similar statements for Peter  Pan/Nichiro

and  Unisea/Nissui.108   Also,  the  complaint  claims  that  the

importers were the "principals of," and controlled the actions of

the  subsidiaries,  and were "liable for the  actionable  .  .  .

conduct complained of" on the part of their subsidiaries:

          [Marubeni] did exercise or retained the right
          to   exercise  control  over  and   was   the
          principal  of  [NPPI]. . . .  [Marubeni]  has
          assumed   and/or  is  responsible   for   the
          liabilities and/or the contingent liabilities
          of [NPPI] . . . regardless of the date of the
          culpable  acts alleged herein, and is  liable
          for   the  actionable  and  culpable  conduct
          complained of herein.

Similar   language   exists  also  for  Peter   Pan/Nichiro   and

Unisea/Nissui.109

          Below,  the discovery master held that the "alter  ego"

claim  was not adequately pled.  The master determined  that  our

decision  considering  similar  circumstances  in  Murat  v.  F/V

Shelikof Strait110 is distinguishable, and the master noted  that

federal  cases  considering similar circumstances require,  at  a

minimum,  some of the "conclusory references associated with  the

corporate  piercing  doctrine or sufficient  factual  allegations

          from which defendants could infer a piercing claim."  Since the

plaintiffs'  complaint failed to live up to  this  standard,  the

"alter ego" claims were not adequately pled.

          The plaintiffs request reversal of the discovery order.

The defendants, on the other hand, note that the complaint failed

to   sue   the  importer  defendants  "in  their  capacities   as

shareholders" of the subsidiaries, and they therefore claim  that

the discovery order should be upheld.111

          The  superior court and discovery master did  not  have

the  benefit  of  our  recent decision in McCormick  v.  City  of

Dillingham,112  which requires reversal of the  superior  court's

ruling in this case.  In McCormick, the City of Dillingham sued a

corporation and its shareholder to collect unpaid taxes and fees.113

The  superior  court  conducted a bench  trial  and  pierced  the

corporate  veil  to allow recovery from the shareholder.114   The

shareholder   claimed  that  the  corporate   veil   theory   was

inadequately pled, but we rejected that argument.115  The complaint

in  McCormick  did  not  specifically  request  piercing  of  the

corporate  veil.116   However, the initial  complaint  named  the

shareholder as the sole defendant, and an amended complaint named

the  corporation  as  an additional party after  the  shareholder

"replied that he was only an employee of Hillbilly Enterprises."117

We held that the "alter ego" theory was adequately pled:

          [I]f  a  party has notice of the conduct  for
          which  the opposing party is seeking  relief,
          the  opposing  party may  recover  under  any
          theory  supported  by the  evidence.  .  .  .
          Dillingham  alleged  in its  first  complaint
          that [the shareholder] had failed to pay city
          taxes,  fees, and penalties, stating that  it
          would  seek  payment from [the  shareholder].
          [The  shareholder] therefore  had  sufficient
          notice.[118]

          Like  the complaint in McCormick, the complaint in this

appeal  did  not specifically request piercing of  the  corporate

veil,  but it did name the importers as defendants, and it stated

that it would seek recovery from those defendants for the actions

of  the  subsidiaries.  And the importers certainly "ha[d] notice

of the conduct for which the opposing party is seeking relief,"119

since  they  were  independently sued as  conspirators,  and  the

complaint expressly alleged that they were "responsible  for  the

liabilities" of their wholly owned subsidiaries and were  "liable

for  the  actionable  and culpable conduct" that  they  allegedly

committed.   Therefore, the plaintiffs' "alter  ego"  theory  was

adequately pled.

     D.   Alaska Statute 45.50.588 Limits the Recoverable Damages
          in this Case.

          The  defendants, as cross-appellants, also  appeal  the

superior  court's ruling allowing the plaintiffs to  recover  for

damages  for  conduct  that took place beginning  in  1989.   The

plaintiffs,  along  with amici curiae States of  Alaska,  Hawaii,

Minnesota, Nevada, New Mexico, and West Virginia, ask this  court

to uphold that ruling.

          The   plaintiffs  brought  suit  in  June  1995.    The

plaintiffs  seek  damages for conduct that took place  from  1989

through  1995.   The  applicable statute  of  limitations  is  AS

45.50.588:

          An action to enforce a claim arising under AS
          45.50.562   -  45.50.596  is  barred   unless
          commenced  within four years after the  claim
          accrues  .  .  .  . For the purpose  of  this
          section,  a claim for a continuing  violation
          is  considered to accrue at any  time  during
          the period of the violation.

(Emphasis  added.)  The superior court held that  the  underlined

portion  means that the statute of limitations does not begin  to

run  until  "the  last act in furtherance of  the  conspiracy  is

completed."  Therefore, "the plaintiffs can recover damages  that

occurred  more  than  four  years  before  the  filing   of   the

complaint,"  including damages for acts in  1989.   The  superior

court based its decision on the explicit language of AS 45.50.588

and on the rule of statutory construction that no language in the

statute  should  be rendered meaningless.  The defendants  appeal

this  ruling,  claiming that AS 45.50.588 allows the  statute  of

limitations  to  be  tolled,  but that  recoverable  damages  are

limited  to those traced to acts that took place only four  years

or less before suit was filed.

          The  defendants claim that the language of AS 45.50.588

"does  not  address  the scope of damages that  a  plaintiff  may

recover"  because the last sentence of AS 45.50.588 tolls  claims

for continuing violations but is silent as to whether damages may

be   recoverable  for  the  whole  continuing  conspiracy.    The

implication is that the language of AS 45.50.588 is ambiguous and

that the legislative history of that statute will be decisive.

          The plaintiffs respond by claiming that "[t]he point of

[the  statute] is to establish the periods for which damages  are

available."  The plaintiffs claim that the plain meaning  of  the

statute  gives  them  "the right to file an  action  for  damages

seeking  recovery for injuries caused by a continuing  conspiracy

at  any  time during its continuation."  The implication is  that

once  the  plaintiffs file suit, damages for the whole conspiracy

are  recoverable.   So,  the plaintiffs  reject  the  defendants'

attempt to distinguish the right to sue, which is plainly tolled,

from the right to collect damages, which the defendants claim  is

not addressed by the plain language of AS 45.50.588.

          We  agree  with  the defendants.  One  of  the  primary

purposes  of a statute of limitations is to prevent past  dubious

deeds  from  hanging like a sword of Damocles over the  heads  of

potential defendants.120  A corollary of this principle is that a

statute  of limitations encourages potential plaintiffs  to  file

their suits in a timely fashion.121  The language in AS 45.50.588,

providing  that "a claim for a continuing violation is considered

to  accrue at any time during the period of the violation,"  does

not, as the superior court held, require that recovery be granted

going all the way back to the initial transgression, which in the

present  case  would  be 1989.  Rather, the passage  in  question

merely  holds that the statute of limitations may begin  "at  any

time" while the violation is ongoing.

          We  hold  that AS 45.50.588 limits recovery for damages

to  four years prior to the time at which the suit was filed.   A

"continuing violation" means that there are a series  of  related

acts  causing damage to a plaintiff and that each successive  act

marks  the  accrual  of a new claim; it does not  mean  that  the

damages suffered before the earliest allowable accrual date under

the  applicable  statute  of  limitations  may  be  recovered.122

Moreover, we reject the ruling of the superior court that  "[t]he

          four year statute of limitations does not begin to run on any

claims  arising  out  of  a conspiracy  until  the  last  act  in

furtherance  of the conspiracy is completed."  We therefore  hold

that  the  accrual date in AS 45.50.588 lies four years prior  to

the  date on which the suit is filed, absent another reason  that

would  result  in  the  tolling of the  statute  of  limitations.

Because  this case commenced on June 1, 1995, only those  damages

suffered  after  June 1, 1991 can be recovered if the  plaintiffs

prevail at trial.

          In  reaching  this  conclusion, we  are  following  the

precedent  we established in Oaksmith v. Brusich, where  we  held

that the purpose of the continuing violation doctrine is to avoid

the  sometimes  harsh  rule that a claim  is  measured  from  the

initial wrong:

          The  court held that Daniel Brusich's actions

          constituted a pattern of conduct analogous to

          [a]    continuing   trespass   or    nuisance

          situation[].   .  .  .  Under   theories   of

          continuing trespass or nuisance, each harmful

          act  constitutes a new cause  of  action  for

          statute   of   limitations   purposes    and,

          therefore, the accrual of a cause  of  action

          is  not measured from the date of the initial

          trespass  so  as  to bar the  entire  action.

          However,  while  later  continuing  acts  may

          prevent   the  running  of  the  statute   of

          limitations on the claim, damages  cannot  be

          recovered   for   the   initial   time-barred

          acts.[123]

Placing  the  date of accrual for a continuing violation  at  the

statutory  period  prior to the date suit was filed  retains  the

purpose  of a statute of limitations while also giving  potential

plaintiffs a reasonable chance at recovery.

          We  find  further support for our conclusion in  Zenith

Radio Corp. v. Hazeltine Research,124 a United States Supreme Court

decision  interpreting 15 U.S.C.  15b.125  In Zenith,  the  Court

considered a situation in which a plaintiff brought suit in  1963

for damages suffered between 1959 and 1963.126  Noting that some of

these  damages were the result of acts that occurred long  before

1959,  the  Court  concluded that suit must commence  within  the

applicable  statute  of limitations measured from  the  injurious

act.127   The  Court  held that in the course  of  a  "continuing

conspiracy,"  each act of the conspiracy is a separate  cause  of

action  that  accrues for the plaintiff and that the  limitations

period starts running on each cause of action as soon as the  act

is committed.128  The effect, then, of a continuing violation, is

to  provide  a  new, and perhaps perpetually rolling,  date  from

which  the  statute of limitations may begin.129   It  does  not,

however,   suspend  or  toll  the  running  of  the  statute   of

limitations on those previous events.  Consequently, the  statute

of  limitations functions as an outer limit of the  damages  that

can be recovered, since any damages suffered prior to that period

are barred by the statute of limitations.130

          The  Supreme  Court  reached a  similar  conclusion  in

          Hanover Shoe v. United Shoe Machinery.131  There, the Court found

that  United  Shoe was liable for monopolization by insisting  on

leasing its machinery rather than selling it.132  This practice had

been going on continuously since 1912.133  The Court held:

          We are not dealing with a violation which, if
          it  occurs  at  all, must occur  within  some
          specific  and  limited  time  span.  .  .   .
          Rather,  we  are dealing with  conduct  which
          constituted  a  continuing violation  of  the
          Sherman  Act  and which inflicted  continuing
          and  accumulating harm on Hanover.   Although
          Hanover  could  have sued  in  1912  for  the
          injury  then being inflicted, it was  equally
          entitled to sue in 1955.[134]

The  Court also remarked that "Hanover is entitled to damages for

the  entire  period  permitted  by  the  applicable  statute   of

limitations."135

          Applying  the  reasoning  of  these  decisions  to  the

present  case  yields the conclusion that suit for  a  continuing

violation  may take place at any time during which the  violation

was  ongoing but that recovery is limited to the period prior  to

the  filing  of  suit  prescribed by the  applicable  statute  of

limitations.  This is the holding we reach today.136  The superior

court  is  directed upon remand to limit any damages calculations

to those damages suffered after June 1, 1991.

V.   CONCLUSION

          Because  the  plaintiffs have presented  evidence  that

raises  material  issues  of  fact as  to  the  existence  of  an

antitrust conspiracy involving some or all of the defendants,  we

REVERSE the superior court's ruling granting summary judgment  to

all  defendants.   Because  the plaintiffs  properly  pled  their

          "alter ego" theory of liability, we REVERSE the superior court's

ruling limiting discovery to exclude this claim.  We REVERSE  the

holding  of the superior court that AS 45.50.588 allows  recovery

for  damages  back  to  1989 and hold instead  that  damages  are

limited  to the four years prior to the filing of the  suit.   We

REMAND  to  the superior court for further proceedings consistent

with this opinion.

_______________________________
     1    "British Columbia Packers" and "Nelbro" are essentially
the  same entity; British Columbia Packers is the exclusive sales
agent, while Nelbro conducts processing operations.

     2     Some  documents in the record refer to  the  in-season
price as the "ground[s]" price, or "ex vessel" price.

     3     There  were  also  special premiums  paid  in  certain
circumstances -- for example, for low-volume catches  kept  fresh
in refrigerated seawater.

     4     Marubeni  owns NPPI; Nissui owns Unisea; Nichiro  owns
Peter Pan.

     5     "Averages" of $2.10 (1988), $1.25 (1989),  and  $0.68-
$1.12  (1990-1995)  were  calculated by one  of  the  plaintiffs'
experts  and  were  marked as the average "ex vessel"  price  for
those seasons.

     6     Because  this  is  a  review of  a  grant  of  summary
judgment,  we  draw all reasonable inferences  in  favor  of  the
non-movant, the plaintiffs.  See Moore v. Allstate Ins. Co.,  995
P.2d 231, 233 (Alaska 2000).

     7     Notes from a June 26, 1992 conversation between Nelbro
and  Wards Cove representatives state: "[Nelbro's] Trev [Beeston]
calls -- [Peter Pan's] Roos [Van Vactor] thinks large run -- Trev
looking   for  export  tenders;  confirm  $."   The  participants
apparently talked briefly about the quality of the upcoming  run;
this is confirmed by testimony from one of these representatives.

          Another  set  of  similar notes from a  June  17,  1992
conversation   between  Peter  Pan  and  Nelbro   representatives
indicate that they discussed the quality and size of the upcoming
run,  as  well as, possibly, what the in-season price  would  be:
"Bay -- advance 1.00; close 22nd."

          Finally,  some notes indicate that there may have  been
calls  between Unisea and Peter Pan representatives on  June  20,
1990  concerning  "prices and catch" in other fisheries  in  Port
Moller and False Pass.  The Unisea representative stated that  he
made  these calls "to give[] us an idea of how the run is shaping
up."

     8     This processor representative stated that these topics
included "what were sockeye selling for now, what was the  market
doing" and "[t]he market for sockeye in Japan."

     9     Defendants prefer to characterize these  events  as  a
"boycott,"  in which "the fishers demonstrated their considerable
economic power."

     10     Ocean  Beauty matched this price retroactively.   The
parties  do  not point to anything in the record that shows  what
price Unisea paid to settle the strike in 1991.

     11    The document is dated June 26, with no year, and in  a
deposition a Mitsui employee was unable to provide the year.

     12     The  notes from the May 23 meeting state,  under  the
headings  "Bene"  [Marubeni] and "B.Bay": "Last  Yr  F.P.  1-1.25
. . . 75c -- Likely 1.00."

          The  notes  from  the June 6 meeting state,  under  the
heading  "Taiyo"  [employee of nonparty  importer]:  "B.Bay  fish
price maybe 80-90-1.00."

     13    A representative of a nonparty processor testified that
on July 1, 1990: "[A Nelbro representative] mentioned that he had
confirmed  with Trident that they were paying $1.00.   They  were
going to pay between $1.00 and $1.50."  July 1, 1990 notes from a
Unisea  representative contain the notation: "Advised  Trident  &
Nelbro will announce a 1.00 advance price today."

     14    The parties do not point to anything in the record that
shows what prices Unisea paid during the 1992 season.

     15     The  first document supporting this, a Mitsui  telex,
states:  "Stop our price conditions is Trident/P.Pan  price  plus
USC90 or 58.5/LB to be covered everything."

          The  second document, apparently another Mitsui  telex,
states:  "We  plan  to  buy at the market  price,  which  is  the
P.Pan/Trident price plus.  As you already know, we are not having
Chaggee purchase fish at just any price."

     16    The Wards Cove representative explained in a deposition
that  the  high  price "bothered [him] . .  .  [because  he]  was
getting  market price information that didn't appear to [him]  to
justify  that kind of grounds price."  When asked if it  bothered
him  because it showed that prices in Bristol Bay would be  high,
the representative stated, "I don't know if that was my concern."

     17    A Woodbine representative testified:

          Q:   What  sort  of  things  did  the  Mitsui
               employees tell you . . . ?

          A:   Primarily that we were paying too  much.
               That  the other companies weren't paying
               as high.
               
     18    A Woodbine representative testified:
          Q:   So you would have heard . . . statements
               about  the  complaints  from  the  other
               processors, several times a week  during
               the 1990 Bristol Bay salmon season?

          A:   Right. . . .

               . . . .

          Q:   [D]id the Mitsui employees ever identify
               particular  other  processors  who  were
               making these complaints?

          A:   Um,   the  only  one  that  was  usually
               specifically mentioned was  Sam  Yoshida
               from Wards Cove . . . .

               . . . .

          Q:   . . . [In 1991], did any of those Mitsui
               employees   identify  particular   other
               companies that had complained to  Mitsui
               about  Woodbine's  high  grounds  prices
               . . . ?

          A:   . . . there was a reference at one point
               to  Trident  and crab; in  other  words,
               that   they  wanted  to  buy  crab  from
               Trident, but [Trident] may not sell them
               to  Mitsui  because [Mitsui was]  buying
               salmon from Woodbine.

          In addition, a March 9, 1991 Mitsui telex paraphrased a
Trident  representative as saying: "[The Trident  representative]
is  very  critical [of] Japanese buyers who back  up  small  size
operators   like  [Woodbine].   Those  operators   always   raise
fishermen  price and cause a big problem to major operators.   He
knows we buy fish from [Woodbine]."

     19     An  internal Mitsui telex indicates that  Mitsui  met
separately with Wards Cove, Nelbro, and Icicle representatives to
discuss   the   situation  on  June  26,  1990.   The   processor
representatives   expressed   concern,   and    Mitsui    stated:
"[E]verybody now knows our business with Woodbine naturally. .  .
.   I think [Woodbine] will take just reasonable attitude against
fish purchase.  And will not be so strong to lead price."

     20     The Woodbine representative testified that the Mitsui
representative  told her: "The price was too  high.   We  can  do
business  with  Wards Cove.  We don't have to  do  business  with
Woodbine."

     21    The Woodbine representative testified:

          Q:   What  was the nature of the threats that
               were made to you by [Mitsui]?

          A:   [Mitsui] had told us that, if we  didn't
               start  lowering our price, that some  of
               the other [processors] were not going to
               continue selling products to them.

          Q:   How  many  times did [Mitsui] make  that
               particular  threat in [its]  discussions
               with you?

          A:   Well  . . . the threat may not have been
               worded  in that exact way, but  [Mitsui]
               would  make reference to them not  being
               able to buy product from other companies
               and  that they didn't know if they could
               continue buying from us.
               
     22     At  one point in the 1990 season, Woodbine was paying
$1.35, which Mitsui told Woodbine was unacceptable, citing  their
"cost plus" contract.  In response, Woodbine lowered the price to
$1.25.

          A  May 1991 Mitsui telex states that Mitsui was willing
to  buy salmon from Woodbine only if their in-season price was to
be  between  $0.50-$0.60.  A June 1991 telex  declares  that  "we
believe  that [the in-season price] should be as low as USC50  in
order to protect packer's profit."

     23     The  Woodbine representative testified:  "It  was  my
opinion  that,  after  the repeated warnings  by  Mitsui  .  .  .
especially in referring to Wards Cove, and they also told us that
[Mitsui]  had  shifted [its buying] to Wards Cove in  1991,  that
they  were  no  longer going to do business with  us  because  of
that."

     24     However, the Baypack representative claimed  that  he
hired  a  private investigator who contacted Nelbro  fishers  and
found no evidence of any "uprising."

     25      However,   on  another  occasion  the   Wards   Cove
representative  claimed not to remember  any  discussion  of  the
relevant text in the "Action Plan."  Also, an Okaya employee  who
was  apparently at the meeting claimed that he had no  memory  of
the  Wards  Cove  representative's alleged statements  about  the
illegality  of  price-fixing; however,  the  Okaya  employee  did
remember that the Wards Cove representative "said something  like
it  is  impossible  for  Wards Cove  to  control  beach  prices."
Another   Wards   Cove   employee  testified   that   the   first
representative said at the meeting that "we can't get involved in
pricing; setting fish prices."

     26     This  April  20, 1991 telex states  that  Wards  Cove
representatives stated that there was "no need to  cut  fishermen
price  as low as USC 50-60-70."  The document implies that  lower
prices were needed and that this was explained to Wards Cove: "We
explained  to [Wards Cove] what you want to explain against  such
packers' [action]."

     27     This  June  10, 1991 telex states:  "We believe  that
fishermen's  price for Bristol Red should be as low as  USC50  in
order to protect packer's profit."

     28     The report also stated prices that were "[t]he  Japan
side's desired price," which presumably referred to the prices to
be paid by Okaya to processors.

     29     The  plaintiffs  claim that  other  meetings  may  be
inferred between Nichiro and other importers and processors  from
a document from a Nichiro employee detailing that employee's work
responsibilities.   However, this document is dated  March  1990.
Another similar document dated April 1992 seems to indicate  that
a  Peter  Pan employee did have regular contacts with  processors
and  importers:   "Just before a salmon . .  .  season  began,  I
wanted  to  find  out  about  the  movements  of  [illegible]  in
particular and other companies (especially FOB prices).  To  this
end,  I  contacted  industry people on  the  attached  list."   A
Nichiro  employee's  contact  list  included  representatives  of
Icicle, Trident, Wards Cove, Nippon Suisan, and NPPI.

     30     The  defendants suggest that we could affirm  summary
judgment  on  the  basis  that plaintiffs  have  failed  to  show
provable damages.  The defendant importers, in particular, ask us
to  consider their entire motion to dismiss for failure  to  show
damages  filed  below, and they also include in  their  brief  an
abbreviated  version  of  the  argument  they  made  below.   The
importers  claim that the plaintiffs' expert's theory of  damages
is  flawed because it assumes that the fishers' profits should be
a  constant fifty-six percent share of the wholesale price, which
is implausible because fishers only received such a share between
1986 and 1988, and not before or after.  The importers cite their
own  expert  testimony in opposition to the  plaintiff's  theory.
This is a factual dispute that is best left to the superior court
to resolve, and will not be addressed by this opinion.

     31     See  Moore  v. Allstate Ins. Co., 995 P.2d  231,  233
(Alaska 2000).

     32    See id.

     33    See id.

     34    See id.

     35    See id.

     36     See  Philbin v. Matanuska-Susitna Borough,  991  P.2d
1263, 1265 (Alaska 1999).

     37    Id. at 1265-66 (quotations omitted).

     38    See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999).

     39     Gamble v. Northstore Partnership, 907 P.2d  477,  482
(Alaska 1995).

     40     See Gossman v. Greatland Directional Drilling,  Inc.,
973 P.2d 93, 95 (Alaska 1999).

     41    See 15 U.S.C.  1 (2000).

     42    See Odom v. Lee, 999 P.2d 755, 761 (Alaska 2000).

     43     See id. at 762; Betz v. Chena Hot Springs Group,  742
P.2d 1346, 1349 (Alaska 1987).

     44    See Odom, 999 P.2d at 762.

     45     See id. at 762 (quoting Oltz v. St. Peter's Community
Hosp., 861 F.2d 1140, 1145 (9th Cir. 1988)).

     46    See Betz, 742 P.2d at 1349.

     47     KOS  ex rel. Sourdough Freight Lines, Inc. v. Alyeska
Pipeline Serv. Co., 676 P.2d 1069, 1072 (Alaska 1983).

     48    Odom, 999 P.2d at 762.

     49    Id.

     50     See  Moore  v. Allstate Ins. Co., 995 P.2d  231,  233
(Alaska 2000).

     51    Gablick v. Wolfe, 469 P.2d 391, 395 (Alaska 1970); see
also  Totem  Marine Tug & Barge, Inc. v. Alyeska  Pipeline  Serv.
Co., 584 P.2d 15, 24 (Alaska 1978).

     52    See Totem, 584 P.2d at 24.

     53     See  Holland v. Union Oil Co., 993 P.2d 1026, 1031-32
(Alaska  1999) (inference of "just cause" employment relationship
not  reasonable from document because no reasonable  juror  could
draw  that  inference);  Smith v. State,  921  P.2d  632,  634-36
(Alaska 1996) (inference from evidence that State undertook  duty
of  care was reasonable because jury could reasonably infer  that
State undertook duty); Mulvihill v. Union Oil Co., 859 P.2d 1310,
1314  (Alaska 1993) (inference that defendant undertook  duty  of
care  was  not  reasonable because "reasonable people  could  not
differ  on  the nature and extent of this voluntarily  undertaken
duty").

     54    Yurioff v. American Honda Motor Co., 803 P.2d 386, 389
(Alaska  1990)  (quoting State, Dep't of Highways v.  Green,  586
P.2d  595,  606  n.32 (Alaska 1978)); see also French  v.  Jadon,
Inc.,  911 P.2d 20, 25-26 (Alaska 1996) (deposition testimony  by
non-movant  is  not enough to oppose summary judgment  when  that
testimony is based on unsupported suppositions).

     55    751 P.2d 939, 944 (Alaska 1988) (quoting Dairy Stores,
Inc. v. Sentinel Publ'g Co., 516 A.2d 220, 236 (N.J. 1986)).   In
Moffatt,  we rejected a summary judgment standard in  which  "the
appropriate  summary  judgment  question  will  be  whether   the
evidence  in  the record could support a reasonable jury  finding
either  that the plaintiff has shown actual malice by  clear  and
convincing evidence or that the plaintiff has not."  Id.  at  942
(quoting  Anderson v. Liberty Lobby, Inc., 477 U.S.  242,  255-56
(1986)).

     56    994 P.2d 365, 367 (Alaska 1999) (quotations omitted).

     57    Id.

     58    See Odom v. Lee, 999 P.2d 755, 761 (Alaska 2000).

     59    In re Baby Food Antitrust Litig., 166 F.3d 112, 124 (3d
Cir.  1999); Rossi v. Standard Roofing, Inc., 156 F.3d  452,  466
(3d  Cir.  1998); Petruzzi's IGA Supermarkets, Inc.  v.  Darling-
Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993).

     60    In re Baby Food Antitrust Litig., 166 F.3d at 118; see
also  In  re  Citric Acid Litig., 191 F.3d 1090, 1094  (9th  Cir.
1999).

     61     In  re  Baby Food Antitrust Litig., 166 F.3d  at  118
(quotation omitted).

     62    See Petruzzi's, 998 F.2d at 1230.

     63    475 U.S. 574 (1986).

     64    Id. at 584.

     65    465 U.S. 752 (1984).

     66    Matsushita, 475 U.S. at 588.

     67    See id. at 595-97.

     68    Id. at 597-98.

     69    See id.

     70    AD/SAT v. Associated Press, 181 F.3d 216, 233 (2d Cir.
1999) (quoting Matsushita, 475 U.S. at 588); see also Ideal Dairy
Farms,  Inc.  v.  John Labatt, Ltd., 90 F.3d 737,  748  (3d  Cir.
1996); Market Force Inc. v. Wauwatosa Realty Co., 906 F.2d  1167,
1171  (7th  Cir.  1990); Riverview Investments,  Inc.  v.  Ottawa
Community  Improvement Corp., 899 F.2d 474, 483 (6th Cir.  1990);
Dreiling v. Peugeot Motors of America, Inc., 850 F.2d 1373,  1379
(10th Cir. 1988).

     71    AD/SAT v. Associated Press, 181 F.3d 216, 233 (2d Cir.
1999) (quoting Matsushita, 475 U.S. at 588); see also Ideal Dairy
Farms,  Inc.  v.  John Labatt, Ltd., 90 F.3d 737,  748  (3d  Cir.
1996); Market Force Inc. v. Wauwatosa Realty Co., 906 F.2d  1167,
1171  (7th  Cir.  1990); Riverview Investments,  Inc.  v.  Ottawa
Community  Improvement Corp., 899 F.2d 474, 483 (6th Cir.  1990);
Dreiling v. Peugeot Motors of America, Inc., 850 F.2d 1373,  1379
(10th Cir. 1988).

          The  Court  in  Matsushita also based its  decision  on
another  analysis applied by some courts.  The  Court  held  that
summary   judgment  was  proper  in  part  because  the   alleged
conspiracy was "economically senseless."  Matsushita, 475 U.S. at
596-98.   Specifically, the predatory pricing scheme alleged  was
one  that  "makes  no practical sense" because the  goal  of  the
conspiracy  was impossible and the conspirators had no  "rational
motive" to engage in the conspiracy.  See id.

          Other federal decisions applying this analysis indicate
that summary judgment should be granted if the alleged conspiracy
makes no economic sense because the conspirators did not stand to
gain  anything from the conspiracy or otherwise lacked a rational
motive  to  conspire.   These  decisions  indicate  that  summary
judgment is rarely granted on this basis.  See Bridges v. MacLean-
Stevens  Studios, Inc., 201 F.3d 6, 14 (1st Cir. 2000) (affirming
summary  judgment because an alleged conspiracy was  "illogical";
plaintiffs  presented no evidence showing that  the  conspirators
had  a motive to conspire); Rossi v. Standard Roofing, Inc.,  156
F.3d  452,  474-75  (3d Cir. 1998) (refusing  to  affirm  summary
judgment   on  the  basis  of  economic  senselessness);   Ezzo's
Investments,  Inc. v. Royal Beauty Supply, Inc.,  94  F.3d  1032,
1036 (6th Cir. 1996) (same); Petruzzi's IGA Supermarkets, Inc. v.
Darling-Delaware Co., 998 F.2d 1224, 1232 (3d Cir. 1993)  (same);
Apex Oil Co. v. DiMauro, 822 F.2d 246, 253 (2d Cir. 1987) (same).

     72     Petruzzi's,  998 F.2d at 1233; see also  Mitchael  v.
Intracorp,  Inc., 179 F.3d 847, 858 (10th Cir. 1999); Rossi,  156
F.3d  452  at 466; Alvord-Polk, Inc. v. F. Schumacher &  Co.,  37
F.3d 996, 1001 (3d Cir. 1994); Petroleum Prods., 906 F.2d at 441.

     73    475 U.S. 587-88 (internal citation omitted).

     74    475 U.S. 601 (White, J., dissenting).

     75     994 P.2d 365, 367 (Alaska 1999) ("The court does  not
weigh the evidence or witness credibility on summary judgment.").

     76    751 P.2d 939, 944 (Alaska 1988).

     77    See Petruzzi's, 998 F.2d at 1232, 1242 (defendants were
buyers  of  meat waste products from supermarkets  who  allegedly
rigged  and  divided the market to depress prices);  In  re  Beef
Indus.  Antitrust  Litig.,  907 F.2d 510,  513  (5th  Cir.  1990)
(defendants were beef packers and processor buyers of cattle  who
allegedly depressed cattle prices through price-fixing).

     78    Apex Oil, 822 F.2d at 253 (quotation omitted); see also
Blomkest  Fertilizer,  203 F.3d at 1032-33;  In  re  Citric  Acid
Litig.,  191 F.3d at 1102; City of Tuscaloosa v. Harcros  Chems.,
Inc.,  158 F.3d 548, 570-71 (11th Cir. 1998); Mitchael, 179  F.3d
at 859; Petruzzi's, 998 F.2d at 1232; In re Beef Indus. Antitrust
Litig., 907 F.2d at 513-14; Petroleum Prods., 906 F.2d at 444-45;
Market Force, 906 F.2d at 1172; Dunnivant v. Bi-State Auto Parts,
851 F.2d 1575, 1583 (11th Cir. 1988).

     79    See Apex Oil, 822 F.2d at 253.

     80    Counsel for the defendants stated at oral argument that
"[t]he  plaintiff  has  some burden under  federal  law  to  come
forward  with  .  . . evidence . . . that tends  to  exclude  the
possibility of independent action."  In response to the question,
"[i]s that like the plus factors?" counsel replied, "that's . . .
exactly correct on that.  It is the plus factors . . . ."

     81     See  Petruzzi's, 998 F.2d at 1232; In re Beef  Indus.
Antitrust Litig., 907 F.2d at 514; Petroleum Prods., 906 F.2d  at
445.

     82     See  Blomkest Fertilizer, 203 F.3d at  1037;  Harcros
Chems., 158 F.3d at 572-73; Mitchael, 179 F.3d at 859; In re Baby
Food  Antitrust  Litig.,  166  F.3d  112,  122  (3d  Cir.  1999);
Petruzzi's, 998 F.2d at 1242, 1245-46; Apex Oil, 822 F.2d at 254.

     83     See In re Baby Food, 166 F.3d at 122; Petruzzi's, 998
F.2d at 1243, 1245-46; Apex Oil, 822 F.2d at 254.

     84    See Petruzzi's, 998 F.2d at 1242, 1245-46.

     85    See Blomkest Fertilizer, 203 F.3d at 1033-37; Petroleum
Prods., 906 F.2d at 445-47, 452-55; Apex Oil, 822 F.2d at 254.

     86    See Petroleum Prods., 906 F.2d at 455-60.

     87     Therefore, we do not address Ocean Beauty's arguments
that  it  should individually be granted summary judgment because
its  prices  were not parallel with those of the other  defendant
processors  and  because the plaintiffs' evidence  does  not  tie
Ocean  Beauty  to the alleged conspiracy.  We leave these  issues
for the superior court to decide on remand.

     88     See  Hikita v. Nichiro Gyogyo Kaisha, Ltd.,  12  P.3d
1169, 1179 (Alaska 2000) (quoting Howarth v. First Nat'l Bank  of
Anchorage, 540 P.2d 486, 489 (Alaska 1975)).

     89     See  Lowe  v. Boggess, 375 P.2d 199, 199-200  (Alaska
1962)  (where plaintiff alleged unspecified cause of action based
on "conspiratorial activities," defendant satisfied its burden on
summary   judgment  by  simply  denying  participation   in   any
conspiratorial activities).

     90     The statement by a nonparty processor that during the
1991  season  it  was attempting to "lower[] the fish  price"  by
"check[ing]  with" each processor is also not direct evidence  of
conspiracy  because  agreement by defendant  processors  must  be
inferred.

     91     The  plaintiffs also presented the handwritten  notes
made  by  a  Nelbro  employee which appear to  document  meetings
between  Nelbro  and Peter Pan on May 18, 1990,  and  Nelbro  and
Marubeni on June 22, 1990.  These notes are mostly illegible, and
they  do  not  directly state that the participants  reached  any
agreement  as to pricing levels or any other issues.   The  notes
from  the  May 18 meeting state: "Two-tier price," and the  notes
from  the June 22 meeting read: "F[ish] P[rice] Bay . . .  1.00."
Inferences are required to conclude from either of these  cryptic
remarks  that the participants agreed on these prices or  engaged
in any other conspiratorial behavior.

     92     Other  evidence presented by the plaintiffs  is  also
clearly  not direct evidence of conspiracy.  The record does  not
establish  that  any  future prices were  discussed  at  separate
meetings between Mitsui and Wards Cove, Nelbro, and Icicle, and a
document allegedly tied to this meeting stating, "Bristol  Ground
Price  dropping  down  to  1.00" has no  year  date.   Also,  the
evidence  that  Nelbro  and  Unisea representatives  had  advance
knowledge  of Nelbro's and Trident's in-season pricing is  silent
as to whether there was any agreement on pricing.

     93     See  Petruzzi's IGA Supermarkets,  Inc.  v.  Darling-
Delaware  Co.,  998 F.2d 1224, 1232 (3d Cir. 1993);  In  re  Beef
Indus. Antitrust Litig., 907 F.2d 510, 514 (5th Cir. 1990); In re
Coordinated  Pretrial Proceedings in Petroleum  Prods.  Antitrust
Litig., 906 F.2d 432, 445 (9th Cir. 1990).

     94    Petruzzi's, 998 F.2d at 1243.

     95     In  1989  in-season prices varied  between  processor
defendants  in  a  range of $1.00-$1.55, with six  of  the  seven
processor  defendants for which information  was  in  the  record
posting  the same in-season prices of $1.00 for the bulk  of  the
season, between June 25 and July 23.

          In  1990 five of the seven processor defendants  posted
initial  in-season  prices of $1.00, and only  Ocean  Beauty  and
Icicle deviated from these prices during the season.

          In  1991 the strike was resolved after six of the seven
processors agreed to pay $0.70.  Ocean Beauty matched this  price
retroactively.

          In  1992  six  of  the seven processor defendants  paid
$1.00 as an in-season price, while Ocean Beauty paid $1.05.

          In  1993 all seven processor defendants initially  paid
$0.60  as  an  in-season price, while Ocean Beauty increased  its
price during the season to $0.75.

          In  1994  in-season  prices  varied  between  processor
defendants  in a range of $0.55-$1.00, while five  of  the  seven
processor defendants paid initial prices of $0.40-$0.65, and  all
seven  raised  the price to $0.80 as of July 13  and  raised  the
earlier price retroactively to $0.50-$0.65.

          In  1995  in-season  prices  varied  between  processor
defendants  in  a  range  of $0.70-$0.80, with  three  processors
paying $0.73 and two paying $0.70 by the end of the season.

     96    See Petruzzi's, 998 F.2d at 1244.

     97     See  Petroleum  Prods., 906 F.2d at  445-47,  452-55;
Blomkest  Fertilizer, Inc. v. Potash Corp. of  Saskatchewan,  203
F.3d 1028, 1033-37 (8th Cir. 2000); Apex Oil Co. v. DiMauro,  822
F.2d 246, 254 (2d Cir. 1987); Wilcox v. First Interstate Bank  of
Oregon, 815 F.2d 522 (9th Cir. 1987).

     98    Authorities cited by the defendants are irrelevant and
do not stand for the proposition that evidence of verification of
future  prices is not a "plus factor."  See Blomkest  Fertilizer,
203   F.3d  at  1033-34  (evidence  of  price  verifications  and
discussions at trade shows and in other contexts is not  evidence
of conspiracy because there is no evidence that verifications had
impact on pricing); In re Citric Acid Litig., 191 F.3d 1090, 1099
(9th   Cir.   1999)   (defendant's  participation   in   industry
organization  was "legitimate" because it "served  the  perfectly
legal  purpose of guaranteeing the reliability of . . . aggregate
statistics on worldwide market conditions").

     99     The  superior  court held that some of  the  Woodbine
representative's testimony concerning statements made to  her  by
Mitsui  were  inadmissible hearsay.  In particular, the  superior
court  held that testimony concerning statements by Mitsui  about
things said to Mitsui by other processors was double hearsay  not
covered by any exception.  However, the plaintiffs do not rely on
these  statements for the truth of the matters asserted;  rather,
the  plaintiffs seek to use them to show that the statements were
made  to  exert pressure in the course of an antitrust conspiracy
to  fix prices.  Therefore, the statements are not hearsay.   See
Alaska   R.  Evid.  801(c);  Stewart-Smith  Haidinger,  Inc.   v.
Avi-Truck,  Inc.,  682  P.2d  1108, 1119  (Alaska  1984)  ("Where
testimony  is  offered to establish that a  statement  was  made,
rather  than  to  prove  its truth, the  hearsay  rule  does  not
apply.").

     100    See Petroleum Prods., 906 F.2d at 455-60.

     101    The defendants' claim that this evidence is not direct
evidence of conspiracy is irrelevant because even if there is  no
evidence  that the smaller processors and importers  reached  any
agreements  with the defendants, the evidence that the defendants
collectively asserted pressure on them alone qualifies as a "plus
factor."   Also,  the weight of the evidence is irrelevant.   The
evidence, even if only of "isolated incident[s]," tends  to  show
that  some  defendant  processors  and  importers  attempted   to
influence  the  behavior of independent processors and  importers
who threatened the conspiracy.

     102     See  Petruzzi's IGA Supermarkets, Inc.  v.  Darling-
Delaware Co., 998 F.2d 1224, 1244 (3d Cir. 1993).

     103    See In re Citric Acid Litig., 191 F.3d at 1098.

     104     Evidence  in  the record indicates that  Wards  Cove
started  the 1991 season with an open ticket, and set an  initial
price  of $0.50 on June 29.  Peter Pan also set an initial  price
of  $0.50 on that same day.  With the exception of Ocean  Beauty,
no  other defendant processor set an initial price until the next
day, when NPPI matched that price.

     105    Because we reverse the grant of summary judgment,  we
need  not  reach the issue of whether the superior court properly
denied the defendants' motion for fees and costs.

     106     We  reject  the importer defendants' arguments  that
summary  judgment  should  be affirmed  even  if  the  Matsushita
analysis shows that there are material issues of fact as  to  the
existence of a conspiracy.

          First,  the  importers  contend that  summary  judgment
should  be affirmed because the plaintiffs have failed to present
evidence  of  agreements  between  importers  and  processors  on
specific prices or price levels.  However, the authority cited in
support of this proposition, Business Electronics Corp. v.  Sharp
Electronics  Corp.,  applies only to conspiracies  consisting  of
"vertical  restraints."  485 U.S. 717, 735-36  (1988).   However,
the   conspiracy  alleged  by  the  plaintiffs,  involving   both
processors and importers and supported by evidence in the record,
is  a  "horizontal,"  or  "interbrand"  conspiracy.   See  Ezzo's
Invests., Inc. v. Royal Beauty Supply, Inc., 243 F.3d 980, 986-87
(6th Cir. 2001); Toys "R" Us, Inc. v. FTC, 221 F.3d 928, 936 (7th
Cir. 2000).

          Second, the importers note that it is impossible for an
importer and its subsidiary to conspire to restrain trade.   This
is  irrelevant, even if true, because the evidence that raises  a
material issue of fact concerning a conspiracy tends to show that
importer  defendants conspired with processors other  than  their
subsidiaries.

     107    Civil Rule 8(a) provides that "[a] pleading which sets
forth   a   claim   for  relief,  whether  an   original   claim,
counterclaim, cross-claim or third-party claim, shall contain (1)
a short and plain statement of the claim showing that the pleader
is  entitled  to  relief, and (2) a demand for judgment  for  the
relief the pleader seeks."

     108    "Upon information and belief, defendant [Peter Pan] is
a  foreign corporation . . . .  Upon information and belief, said
defendant is wholly owned and controlled by, and/or is the  agent
of  defendant/principal [Nichiro] . . . .  Upon  information  and
belief, defendant [Unisea] is a foreign corporation . . . and  is
wholly   owned  and  controlled  by,  and/or  is  the  agent   of
defendant/principal [Nissui]."

     109     "[Nichiro]  did exercise or retained  the  right  to
exercise control over and was the principal of [Peter Pan]. . . .
[Nichiro]  has assumed and/or is responsible for the  liabilities
and/or the contingent liabilities of [Peter Pan] . . . regardless
of  the  date of the culpable acts alleged herein, and is  liable
for the actionable and culpable conduct complained of herein. . .
.  [Nissui] has assumed and/or is responsible for the liabilities
and/or the contingent liabilities of [Unisea] . . . regardless of
the  date of the culpable acts alleged herein, and is liable  for
the actionable and culpable conduct complained of herein."

     110    793 P.2d 69 (Alaska 1990).

     111     The importers also argue that "plaintiffs' alter ego
theory  is  invalid as a matter of law."  However,  the  superior
court  never found that the alter ego theory was invalid  on  its
merits;  it only affirmed a discovery order that found  that  the
theory  was inadequately pled.  Thus, the superior court has  not
had an opportunity to rule on the factual and legal issues of the
alter ego claim.

     112    16 P.3d 735 (Alaska 2001).

     113    See id. at 737.

     114    See id.

     115    See id. at 743.

     116    See id.

     117    Id. at 743.

     118    Id.

     119    Id.

     120    Poster Exchange, Inc. v. National Screen Serv. Corp.,
517  F.2d  117,  127  (5th  Cir.  1975)  ("The  function  of  the
limitations statute is simply to pull the blanket of  peace  over
acts  and  events  which have themselves already  slept  for  the
statutory  period, thus barring the proof of wrongs  embedded  in
time-passed events.").

     121     See Haakanson v. Wakefield Seafoods, Inc., 600  P.2d
1087, 1090 (Alaska 1979) ("Statutes of limitation serve . . . 'to
encourage promptness in the prosecution of actions and thus avoid
the  injustice  which  may result from the prosecution  of  stale
claims.  Statutes of limitations attempt to protect  against  the
difficulties   caused  by  lost  evidence,  faded  memories   and
disappearing witnesses.'") (quoting Byrne v. Ogle, 488 P.2d  716,
718 (Alaska 1971)).

     122     See  Poster  Exchange, 517 F.2d at 128  ("[A]  newly
accruing  claim for damages must be based on some  injurious  act
actually occurring during the limitations period, not merely  the
abatable   but   unabated   inertial   consequences    of    some
pre-limitations  action.  .  .  .  Poster  here  is  obliged   to
demonstrate  some  act of the defendants during  the  limitations
period.").

     123     744  P.2d  191,  200 n.10 (Alaska  1989)  (citations
omitted).

     124    401 U.S. 321 (1971).

     125    15 U.S.C.  15b provides in relevant part:  "Any action
to  enforce any cause of action under section 15, 15a, or 15c  of
this  title shall be forever barred unless commenced within  four
years after the cause of action accrued."

          There  is evidence in the legislative history that  the
Alaska Antitrust Act was adopted to be parallel with federal law.
An  analysis of the original senate bill, appearing in the Senate
Journal,  indicated explicitly that the state  statutes  were  in
part  modeled after federal statutes.  See Senate Journal,  March
31,  1975  at  585-588 ("The operative language  of  [what  would
become  AS 45.50.562] is identical to  1 of the Sherman Antitrust
Act.  .  . . [U]se of the same language in this bill [will]  have
the  advantage of bringing with it an extensive body of case  law
to aid state courts in its interpretation.").

     126    See Zenith, 401 U.S. at 333.

     127    Id. at 327-28, 338.

     128    Id. at 338 ("In the context of a continuing conspiracy
to  violate  the  antitrust laws, such as the conspiracy  in  the
instant case, this has usually been understood to mean that  each
time  a plaintiff is injured by an act of the defendants a  cause
of  action accrues to him to recover the damages caused  by  that
act  and  that,  as to those damages, the statute of  limitations
runs  from the commission of the act."); see also Klehr  v.  A.O.
Smith  Corp.,  521 U.S. 179, 189 (1997) ("[T]he commission  of  a
separate new overt act generally does not permit the plaintiff to
recover  for  the  injury caused by old overt  acts  outside  the
limitations period.").

     129    Zenith, 401 U.S. at 338-39 ("[E]ach separate cause of
action  that so accrues entitles a plaintiff to recover not  only
those  damages which he has suffered at the date of accrual,  but
also those which he will suffer in the future from the particular
invasion.").

     130     See  401  U.S. at 339 ("[I]f a plaintiff  feels  the
adverse impact of an antitrust conspiracy on a particular date, a
cause of action immediately accrues to him to recover all damages
incurred by that date and all provable damages that will flow  in
the  future  from the acts of the conspirators on that  date.  To
recover those damages, he must sue within the requisite number of
years from the accrual of the action.").

     131    392 U.S. 481 (1968).

     132    Id. at 487-88.

     133    Id. at 502 n.15.

     134    Id. (citation omitted).

     135     Id.  at 502.  See also Hennegan v. Pacifico Creative
Service,  Inc.,  787 F.2d 1299, 1300-01 (9th Cir. 1986)  (holding
that  plaintiffs  could recover for damages  from  conspiratorial
acts  during the statutory period even though the conspiracy  was
formed prior to the statute of limitations).

     136     Amici  curiae  States of Alaska, Hawaii,  Minnesota,
Nevada, New Mexico, and West Virginia relied upon the holding  of
the  federal district court in Robert's Waikiki U-Drive, Inc.  v.
Budget  Rent-a-Car  Systems, Inc. involving fly-drive  agreements
that  were allegedly in violation of a Hawaii antitrust  statute,
with  the  applicable statute of limitations worded similarly  to
AS  45.50.588. 491 F. Supp. 1199 (D. Haw. 1980).  Hawaii  Revised
Statute   480-24 (1976) provides: "Any action to enforce a  cause
of  action  arising  under this chapter shall  be  barred  unless
commenced within four years after the cause of action accrues.  .
.  .  For  the purpose of this section, a cause of action  for  a
continuing  violation is deemed to accrue at any time during  the
period of the violation."  The court held that the claim was  not
barred  by  the statute of limitations because it was an  alleged
continuing  violation that began more than four years before  the
plaintiff  filed suit.  491 F. Supp. at 1229.  The court  further
held  that damages for any acts that were part of that continuing
violation may be recoverable, even if the acts occurred more than
four  years before the suit was filed.  Id.  The court based  its
decision  on  the  plain language of the Hawaii statute,  without
reference  to  its legislative history or any other  authorities.
See  id.  A similar result was reached in Anzai v. Chevron Corp.,
holding  that  "the language [of Hawaii Revised Statute   480-24]
plainly  appears to permit recovery for the entire  period  of  a
continuing  conspiracy." 168 F. Supp.  2d  1180,  1183  (D.  Haw.
2001).   However, the district court also noted that  "apparently
no  state  appellate court from either Hawaii  or  any  of  those
eleven  other states [with similarly worded continuing violations
statutes] has yet issued a published opinion interpreting the key
language."  Id. at 1184.  The district court even quoted from the
superior  court decision in the present case and noted that  this
decision  was on appeal to the Alaska Supreme Court.   Id.   With
due  respect  to  the  Hawaii District Court,  we  disagree  with
Robert's  and  Anzai  and  believe that they  conflict  with  the
continuing  violations doctrine as generally  understood  and  as
reflected in the case law that we have discussed in this opinion.