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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Western Star Trucks, Inc. v. Big Iron Equipment Service, Inc. (11/26/2004) sp-5847

Western Star Trucks, Inc. v. Big Iron Equipment Service, Inc. (11/26/2004) sp-5847

     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

WESTERN STAR TRUCKS, INC., and     )
WESTERN STAR TRUCKS SALES, INC.,   )    Supreme Court No. S-10807
                                   )
               Appellants,              )
                                   )    Superior Court No.
     v.                            )    4FA-00-49 CI
                                   )
BIG IRON EQUIPMENT SERVICE, INC.,  )    O P I N I O N
                                   )
               Appellee.           )    [No. 5847 - November  26,
2004]
                                   )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mary E. Greene, Judge.

          Appearances:  Susan Orlansky, Ruth  Botstein,
          Feldman    &    Orlansky,   Anchorage,    for
          Appellants.   Thomas  Van  Flein,  David   A.
          Carlson,  Clapp,  Peterson  &  Stowers,  LLC,
          Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.

          A  manufacturer of commercial trucks misrepresented the

consequences of an oral agreement that it made with  a  potential

parts  and  service  dealer.   The  Unfair  Trade  Practices  and

Consumer    Protection   Act   prohibits   misrepresenting    the

consequences  of  an  oral agreement.   Dicta  in  our  case  law

indicate  that  the  act  only applies to transactions  involving

consumer  goods  and  services.  The question  in  this  case  is

whether  the act applies to a misrepresentation by a manufacturer

of  commercial  trucks to a potential parts and services  dealer.

We  answer  yes because of the plain language of  the  act.   The

dicta   were   meant   to   highlight  the  distinction   between

transactions involving real estate and other transactions.

FACTS AND PROCEEDINGS

          Western  Star  Trucks,  Inc.,  manufactures  commercial

trucks.   When  its dealership in Fairbanks closed in  1999,  the

owners  of  Western  Star  Trucks in Alaska  were  left  with  no

convenient place to buy parts or obtain warranty services.  After

receiving a number of concerned calls from truck owners,  Western

Star sent its employees Rick Jarchow and Mike Murphy to Fairbanks

with  instructions  to fix the problem.  Murphy  called  on  Dave

Evans,  formerly  the  service  manager  for  the  dealership  in

Fairbanks,  who was then working for Big Iron Equipment  Service,

Inc.   What  followed  was a series of meetings  between  Murphy,

Jarchow, Evans, and the president of Big Iron, Mike Scott.

          These meetings resulted in an oral agreement, but  what

was  agreed to was disputed.  Evans and Scott claimed that Murphy

and  Jarchow promised that Big Iron would be the new Western Star

parts and service dealer for Alaska.  Murphy and Jarchow, on  the

other  hand,  claimed that they agreed that Big Iron  was  to  be

Western  Stars interim warranty station to perform truck  repairs

and  that  Western Star would send Big Iron a dealer  application

packet.

          Relying on its understanding of the agreement, Big Iron

proceeded  to  spend over $50,000 in order to  assume  dealership

responsibilities.  It also submitted a formal written  dealership

application.  After a period in which Big Iron performed warranty

work, Western Star rejected Big Irons dealership application  and

awarded a dealership to another company.

          Big  Iron  sued  Western Star for breach  of  contract,

promissory  estoppel, intentional or negligent misrepresentation,

and  unfair trade practices.  After a bench trial, Superior Court

Judge  Mary E. Greene found for Western Star on the contract  and

promissory  estoppel claims.  But the court found that  Big  Iron

had  proved  its  claim for negligent misrepresentation,  finding

that  Western Star made a false representation when  Murphy  told

Big  Iron  that  they would receive paperwork  that  was  just  a

formality.   The court also found that this conduct  violated  AS

45.50.471(b)(14),  a  portion of the Unfair Trade  Practices  and

Consumer  Protection  Act, which prohibits representing  that  an

agreement  confers  or involves rights, remedies  or  obligations

which  it does not confer or involve, or which are prohibited  by

law.   The  court  found  that  Big  Irons  actual  damages  were

$58,120.36.  The court added prejudgment interest to this amount,

trebled  the sum under the treble damages provision of the  act,1

and  entered  judgment in favor of Big Iron for $180,990.94  plus

attorneys fees and costs.

          Western  Star  appeals from the courts conclusion  that

the act applies and the consequent trebling of actual damages.

STANDARD OF REVIEW

          Issues of statutory interpretation are questions of law

which  this  court  reviews in its independent judgment.2   Under

this  standard  the court adopts the rule of  law  that  is  most

persuasive in light of precedent, reason, and policy.3

DISCUSSION

          Western  Star contends that the Unfair Trade  Practices

and  Consumer  Protection Act does not  apply  to  a  transaction

between a commercial vehicle manufacturer and a potential dealer,

and  therefore  Big  Iron should recover  only  untrebled  actual

damages.  Western Stars argument is that the general prohibitions

of  the  act only apply to transactions involving consumer  goods

and  services and that the subsection on which the court  relied,

.471(b)(14), prohibiting misrepresentations of rights,  remedies,

and obligations, falls within this category.

          Big  Iron  responds on both procedural and  substantive

grounds.   Procedurally, it contends that this argument  was  not

raised in the trial court and therefore must be considered waived

for  purposes of appeal.  Substantively, Big Iron argues that the

superior  court  correctly applied the act to the transaction  in

          question.  We agree with Big Irons substantive position, thus

mooting consideration of its procedural point.

     AS  45.50.471  Is  Not Limited to Cases  Involving  Consumer
     Goods or Services
     
          Western Star appeals only the trial courts finding that

its  conduct  was a violation of the act.  The court specifically

found  a  violation of AS 45.50.471(b)(14), which defines  as  an

unfair  act:  representing that an agreement confers or  involves

rights,  remedies  or obligations which it  does  not  confer  or

involve,  or  which are prohibited by law.4  Western Star  argues

that  this  was  wrong because the statute does not  apply  to  a

transaction such as this that does not involve consumer goods  or

services.  Big Iron argues that the plain meaning of the  statute

encompasses  this  situation and that  there  is  no  legislative

history to suggest otherwise.

          When  interpreting a statute, this court looks to three

factors:  the  language of the statute, the legislative  history,

and  the legislative purpose behind the statute.5  This court has

rejected  a  mechanical application of the  plain  meaning  rule,

.  .  . adopt[ing] a sliding scale approach instead.6  Under this

approach,  the  plainer  the  statutory  language  is,  the  more

convincing the evidence of contrary legislative purpose or intent

must be.7

          Western  Stars argument is not supported by the literal

language  of the act.  The act applies to all unfair or deceptive

acts  in the conduct of trade or commerce,8  particularly if  the

act falls within the specific categories enumerated in subsection

.471(b).  But Western Stars argument is supported by language  in

two of our decisions, State v. First National Bank of Anchorage,9

and Aloha Lumber Corp. v. University of Alaska.10

          First National Bank involved an attempt by the state to

apply  the  act to certain practices of a real estate subdivider.

We  held  that  the  sale  of real property  is  not  within  the

regulatory scope of the [act].11  In reaching this conclusion  we

stated  that the act is directed at regulating practices relating

          to transactions involving consumer goods and services.12  But the

issue  in First National Bank was not whether the act applied  to

transactions  involving personal property  or  services  used  by

businesses as distinct from personal property or services sold to

consumers.  Instead, our usage of the phrase consumer  goods  and

services   was   merely  a  convenient  but  imprecise   way   of

distinguishing  sales  and services involving  real  estate  from

those involving other property and services.

          We  reached our conclusion in First National Bank based

on   the   structure  of  subsection  .471(b)  and  by  reviewing

authorities  from other states.  Using the principle  of  ejusdem

generis  we  concluded that transactions centered on real  estate

were  not  included  because most of the  twenty-five  enumerated

prohibited  transactions13 involved  goods or goods and  services

or  were  commonly  associated with consumer goods  and  services

transactions.  We stated:

          Immediately  following AS 45.50.471(a)  is  a
          list   of   twenty-five  specific   acts   or
          practices  which are expressly prohibited  as
          unfair  methods of competition and  deceptive
          acts  or  practices.   AS  45.50.471(b).   Of
          these, thirteen concern practices relating to
          transactions  involving goods  or  goods  and
          services generally.FN10  The remaining twelve
          deal  with  practices involving the  sale  of
          particular    types    of    goodsFN11     or
          services,FN12 or relate to certain  types  of
          activities commonly associated with  consumer
          goods  and services transactions.FN13   While
          subsection (b) makes clear that this list  is
          not   exclusive,   none  of  the   enumerated
          prohibited acts mentions real property.   Nor
          do  any  other provisions of the Act  suggest
          that  the  legislature intended the  sale  of
          real   property  to  come  within  the   Acts
          purview.[14]
          
          _____________________________________________
          ____
          
          FN10   See AS 45.50.471(b)(1), (2), (3), (4),
          (5), (6), (7), (8), (9), (11), (13) and (19).
          
          FN11   AS 45.50.471(b)(18) (resetting vehicle
          odometers);  (21)  (selling  frozen  meat  as
          fresh);  (25)  (failure  to  comply  with  AS
          45.50.800-45.50.850,  the   Alaska   Gasoline
          Products Leasing Act).
          
          FN12  AS 45.50.471(b)(17) (excess charges for
          warranty  repairs); (23) (failure  to  comply
          with   AS  45.45.130-  45.45.240,  regulating
          motor  vehicle  repairs);  (24)  (prohibiting
          certain   practices   in   connection    with
          counseling,   consulting  or  arranging   for
          future  services relating to the  disposition
          of a body upon death).
          
          FN13  AS 45.50.471(b)(10) (misrepresentations
          regarding     price     reductions);     (14)
          (misrepresenting legal rights or  obligations
          in  an agreement); (15) (misrepresenting  the
          need   for   parts,  replacement  or   repair
          service); (16) (misrepresenting the authority
          of  an  agent or representative to  negotiate
          the  terms  of a consumer transaction);  (20)
          (selling  or  offering to  sell  a  right  of
          participation in a chain distributor scheme);
          (22)  (failure  to comply with AS  45.02.350,
          regulating  the sale of goods or services  by
          door-to-door solicitation).
          
          We  note  that  twelve of the thirteen  subsections  of

.471(b)  mentioning goods or goods and services, as  set  out  in

footnote  10  quoted above, could apply to commercial  goods  and

services  as readily as to those offered to consumers.  The  only

exception  would be subsection (19) referring to  chain  referral

sales  plans  directed to consumers.  Likewise, as  to  the  four

subsections that do not mention goods or services but are general

in  application,  three  (10), (14), and  (15)   would  apply  to

commercial  goods and services as well as to consumer  goods  and

services.   Only subsection (16) in this category is  limited  to

consumer  transactions.15   Thus, the  ejusdem  generis  approach

employed  in  First National Bank does not serve  to  distinguish

between transactions based on commercial and consumer products or

services.

          In  First National Bank we relied on a New Jersey case,

Neveroski v. Blair.16  The New Jersey court had applied a ejusdem

generis approach to the New Jersey Consumer Fraud Act to conclude

that  a  misrepresentation in connection with the  sale  of  real

          property was not covered under the act.  As quoted in First

National  Bank, the New Jersey court concluded that the  act  was

directed  only at regulating transactions involving products  and

services  sold to consumers in the popular sense.17   It  appears

that  the  New  Jersey court used language relating  to  consumer

transactions advisedly because the New Jersey act used  the  word

merchandise,  which  was defined in the act to  include  anything

offered,  directly or indirectly, to the public for sale.18   But

there  is  nothing similar in the Alaska act that could serve  to

limit the Alaska act to goods and services offered to the public.

We  also  noted in First National Bank that the acts  of  several

states  involving deceptive merchandising practices  specifically

included real estate whereas the Alaska act does not.19  Both the

New  Jersey  case and the statutes of other states cited  in  our

First National Bank discussion support the proposition that  real

estate transactions were not intended to be covered by the Alaska

act,  but neither would support a conclusion that the Alaska  act

covered consumer but not commercial non-real estate transactions.

          Aloha  Lumber involved the sale of standing  timber  on

University land.20  A prospective buyer brought a claim under the

act  against the University.  We held that the act did not  apply

to  a  sale  of standing timber because standing timber  is  real

property  not a consumer good.21  In reaching this conclusion  we

did  not undertake a new analysis of AS 45.50.471, but relied  on

First  National Bank.22  As in First National Bank, the issue  in

Aloha  Lumber  was  only whether transactions  centered  on  real

property were covered by the act.

          While First National Bank and Aloha Lumber clearly hold

that  the  act  does  not  apply to transactions  involving  real

estate, we do not think that these cases should be interpreted to

bar the application of the act to transactions between businesses

involving  services or commercial or consumer personal  property.

As  noted,  many  of the enumerated categories of subsection  (b)

apply  as readily to such transactions.  Further, the New  Jersey

          case on which we relied for its ejusdem generis approach in First

National Bank and the statutory examples we cited were focused on

the  distinction between real estate transactions on the one hand

and transactions not involving real estate on the other.  They do

not  support  making a distinction under the Alaska  act  between

consumer and commercial transactions.

          The legislative history of the act indicates that while

consumer  protection was the dominant motive underlying the  act,

the  act was not intended to be limited to consumer transactions.

As  first  enacted  in  1970,  section  .471  contained  thirteen

enumerated  prohibitions that correspond to  the  first  thirteen

subsections in current subsection .471(b).23  The House Judiciary

Committee  Report that accompanied the 1970 bill that became  the

act  states  that the bill is based on legislation  developed  in

large part by the Federal Trade Commission, [and] is designed  to

meet  the  increasing  need  in  Alaska  for  the  protection  of

consumers as well as honest businessmen from the depredations  of

those  persons  employing unfair or deceptive trade  practices.24

The  model legislation mentioned in the committee report  is  not

further  identified, but the prohibitions of the 1970 act closely

resemble  those in the Uniform Deceptive Trade Practices  Act  of

1966  promulgated by the National Conference of Commissioners  on

Uniform State Laws.

          The   Alaska   act  was  amended  in   1974.    Current

prohibitions 14 through 20 were added and subsection .471(a)  was

revised to parallel the declaration of unlawfulness contained  in

the  Federal  Trade  Commission Act.25  Also  added  was  current

section  .545  requiring that in interpreting  section  .471  due

consideration and great weight should be given to interpretations

of  the  Federal  Trade  Commission  Act  by  the  Federal  Trade

Commission  and the federal courts.26  The governors  transmittal

letter concerning the 1974 amendments states in part:

               The  language  of  the  present  Act  is
          amended  to  conform to the language  of  the
          Federal   Trade  Commission  Act,   and   the
          interpretation  provision  is   provided   to
               enable the Attorney General and the courts of
          the  state to utilize the body of law created
          by the Federal Trade Commission.  The Federal
          Trade   Commission  and  the  Conference   of
          Commissioners  on  Uniform  State  Laws  have
          recommended   the  use  of  such   conforming
          language  so  that  the  consumer   and   the
          businessman  are provided with uniformity  in
          unfair trade laws.[27]
          
          Both the committee report relating to the 1970 act  and

the  governors  transmittal  letter  with  respect  to  the  1974

amendments emphasize the need to protect consumers, but  they  do

not state that consumers are the only group protected by the act.

The  1970  Judiciary Committee Report includes honest businessmen

with   consumers  as  those  in  need  of  protection  from   the

depredations  of  those  employing  unfair  or  deceptive   trade

practices.28  The Uniform Deceptive Trade Practices Act on  which

the  1970 act appears to have been modeled clearly is not limited

to  the  protection  of  consumers.  The prefatory  note  to  the

Uniform  Act  makes it clear that the act was  also  intended  to

protect  businesses  from  deceptive  trade  practices  by  other

businesses.29  Further, it is clear that 15 U.S.C.  45(a)(1), the

Federal   Trade  Commission  Act,  is  not  limited  to  consumer

transactions.30   Subsection .471(a) should likewise  not  be  so

limited  since subsection .471(a) closely parallels the  language

of  the federal act and the legislature has specifically provided

that  due  consideration  and great weight  should  be  given  to

interpretations of the federal act.

          We  thus conclude that no sufficient reason exists  for

departing from the literal language of the act in connection with

commercial transactions not involving real estate.  Consequently,

we affirm the judgment of the superior court.

          AFFIRMED.

_______________________________
     1    AS 45.50.531(a).

     2    In re Life Ins. Co. of Alaska, 76 P.3d 366, 368 (Alaska
2003).

     3    Id.

     4    AS 45.50.471(a) and (b) provide:

               (a)  Unfair  methods of competition  and
          unfair or deceptive acts or practices in  the
          conduct of trade or commerce are declared  to
          be unlawful.
               (b)   The   terms  unfair   methods   of
          competition and unfair or deceptive  acts  or
          practices  include, but are not  limited  to,
          the following acts:
               (1)     fraudulently    conveying     or
          transferring    goods    or    services    by
          representing them to be those of another;
               (2)  falsely representing or designating
          the geographic origin of goods or services;
               (3) causing a likelihood of confusion or
          misunderstanding   as    to    the    source,
          sponsorship, or approval, or another  persons
          affiliation, connection, or association  with
          or certification of goods or services;
               (4)  representing that goods or services
          have  sponsorship, approval, characteristics,
          ingredients,  uses, benefits,  or  quantities
          that they do not have or that a person has  a
          sponsorship,  approval, status,  affiliation,
          or connection that the person does not have;
               (5) representing that goods are original
          or  new  if  they are deteriorated,  altered,
          reconditioned,  reclaimed, used,  secondhand,
          or seconds;
               (6)  representing that goods or services
          are  of  a  particular standard, quality,  or
          grade,  or  that  goods are of  a  particular
          style or model, if they are of another;
               (7) disparaging the goods, services,  or
          business  of  another by false or  misleading
          representation of fact;
               (8)  advertising goods or services  with
          intent not to sell them as advertised;
               (9)  advertising goods or services  with
          intent  not  to supply reasonable  expectable
          public   demand,  unless  the   advertisement
          prominently   discloses   a   limitation   of
          quantity;
               (10)    making   false   or   misleading
          statements  of  fact concerning  the  reasons
          for,   existence  of,  or  amounts  of  price
          reductions;
               (11)   engaging  in  any  other  conduct
          creating  a  likelihood of  confusion  or  of
          misunderstanding and which misleads, deceives
          or   damages  a  buyer  or  a  competitor  in
          connection with the sale or advertisement  of
          goods or services;
               (12)   using   or  employing  deception,
          fraud,   false   pretense,   false   promise,
          misrepresentation,  or knowingly  concealing,
          suppressing, or omitting a material fact with
          intent that others rely upon the concealment,
          suppression  or  omission in connection  with
          the   sale  or  advertisement  of  goods   or
          services whether or not a person has in  fact
          been misled, deceived or damaged;
               (13)  failing to deliver to the customer
          at  the time of an installment sale of  goods
          or  services,  a written order, contract,  or
          receipt  setting out the name and address  of
          the  seller and the name and address  of  the
          organization that the seller represents,  and
          all  of the terms and conditions of the sale,
          including  a  description  of  the  goods  or
          services,  which shall be stated in readable,
          clear, and unambiguous language;
               (14)   representing  that  an  agreement
          confers  or  involves  rights,  remedies   or
          obligations  which  it  does  not  confer  or
          involve, or which are prohibited by law;
               (15)    knowingly   making   false    or
          misleading statements concerning the need for
          parts, replacement, or repair service;
               (16) misrepresenting the authority of  a
          salesman,   representative   or   agent    to
          negotiate  the  final  terms  of  a  consumer
          transaction;
               (17) basing a charge for repair in whole
          or  in  part on a guaranty or warranty rather
          than  on  the  actual  value  of  the  actual
          repairs made or work to be performed  on  the
          item  without stating separately the  charges
          for  the work and the charge for the guaranty
          or warranty, if any;
               (18)  disconnecting,  turning  back   or
          resetting the odometer of a vehicle to reduce
          the number of miles indicated;
               (19)  using a chain referral sales  plan
          by   inducing  or  attempting  to  induce   a
          consumer to enter into a contract by offering
          a  rebate,  discount,  commission,  or  other
          consideration, contingent upon the  happening
          of  a future event, on the condition that the
          consumer  either sells, or gives  information
          or assistance for the purpose of leading to a
          sale  by  the seller of the same  or  related
          goods;
               (20) selling or offering to sell a right
          of   participation  in  a  chain  distributor
          scheme;
               (21)  selling,  falsely representing  or
          advertising meat, fish or poultry  which  has
          been frozen as fresh food;
               (22)   failing   to   comply   with   AS
          45.02.350;
               (23) failing to comply with AS 45.45.130
          -- 45.45.240;
               (24) counseling, consulting or arranging
          for   future   services   relating   to   the
          disposition  of  a  body upon  death  whereby
          certain   personal  property,  not  including
          cemetery  lots and markers, will be furnished
          or  the  professional services of  a  funeral
          director   or  embalmer  will  be  furnished,
          unless the person receiving money or property
          deposits the money or property, and money  or
          property is received, within five days of its
          receipt,   in   a   trust  in   a   financial
          institution whose deposits are insured by  an
          instrumentality  of  the  federal  government
          designating the institution as the trustee as
          a  separate  trust in the name  only  of  the
          person  on whose behalf the arrangements  are
          made  with  a  provision that  the  money  or
          property  may only be applied to the purchase
          of  designated  merchandise or  services  and
          should  the  money or property deposited  and
          any  accrued  interest not be  used  for  the
          purposes intended on the death of the  person
          on  whose  behalf the arrangements are  made,
          all  money  or  property in the  trust  shall
          become  part  of that persons  estate;   upon
          demand  by  the  person on whose  behalf  the
          arrangements are made, all money or  property
          in  the  trust  including  accrued  interest,
          shall be paid to that person;  this paragraph
          does  not prohibit the charging of a separate
          fee    for   consultation,   counseling    or
          arrangement services if the fee is  disclosed
          to  the  person making the arrangement;   any
          arrangement under this paragraph which  would
          constitute a contract of insurance  under  AS
          21 is subject to the provisions of AS 21;
               (25) failing to comply with the terms of
          AS  45.50.800  -- 45.50.850 (Alaska  Gasoline
          Products Leasing Act);
               (26)  failing  to comply with  AS  45.30
          relating to mobile home warranties and mobile
          home parks;
               (27)   failing   to  comply   with    AS
          14.48.060(b)(13);
               (28) dealing in hearing aids and failing
          to comply with AS 08.55;
               (29) violating AS 45.45.910(a), (b),  or
          (c);
               (30)   failing   to   comply   with   AS
          45.50.473;
               (31)  violating  the  provisions  of  AS
          45.45.400;
               (32) knowingly selling a reproduction of
          a piece of art or handicraft that was made by
          a   resident   of   the  state   unless   the
          reproduction   is  clearly   labeled   as   a
          reproduction;      in     this     paragraph,
          reproduction means a copy of an  original  if
          the copy is
               (A)   substantially  the  same  as   the
          original;  and
               (B)  not made by the person who made the
          original;
               (33)  violating AS 08.66 (motor  vehicle
          dealers);
               (34) violating AS 08.66.200 -- 08.66.350
          (motor vehicle buyers agents);
               (35)   violating  AS  45.63  (telephonic
          solicitations);
               (36)   violating  AS  45.68  (charitable
          solicitations);
               (37)  violating AS 45.50.474  (on  board
          promotions);
               (38) referring a person to a dentist  or
          a dental practice that has paid or will pay a
          fee for the referral unless the person making
          the   referral  discloses  at  the  time  the
          referral  is made that the dentist or  dental
          practice has paid or will pay a fee based  on
          the referral;
               (39)  advertising  that  a  person   can
          receive  a referral to a dentist or a  dental
          practice    without   disclosing    in    the
          advertising  that  the  dentist   or   dental
          practice to which the person is referred  has
          paid  or will pay a fee based on the referral
          if,  in  fact, the dentist or dental practice
          to  which the person is referred has paid  or
          will pay a fee based on the referral.
               (40) violating AS 45.50.477(a)-(c);
               (41)   failing   to   comply   with   AS
          45.50.475;
               (42)  violating AS 45.35 (lease-purchase
          agreements);
               (43) violating AS 45.25.400 -- 45.25.590
          (motor vehicle dealer practices);
               (44)   violating  AS  45.66   (sale   of
          business opportunities).
          
     5     Muller v. BP Exploration (Alaska) Inc., 923 P.2d  783,
787 (Alaska 1996).

     6    Id. at 787-88.

     7    Id.

     8    AS 45.50.471(a).

     9    660 P.2d 406 (Alaska 1982).

     10    994 P.2d 991 (Alaska 1999).

     11    660 P.2d at 414.

     12    Id. at 412.

     13    The list has since been expanded to forty-six.

     14    Id. at 412-13.

     15    The express limitation to consumers in subsection (16)
suggests  that transactions falling within the other  subsections
were not intended to be so limited.

     16    358 A.2d 473, 480 (N.J. Super. 1976).

     17    Id. at 480 (quoted in First National Bank, 660 P.2d at
413).

     18    Id. at 479 (quoted in First National Bank, 660 P.2d at
413).

     19    First National Bank, 660 P.2d at 413 n.14.

     20    994 P.2d 991 (Alaska 1999).

     21    Id. at 1002.

     22    Id.

     23    Ch. 246,  2, SLA 1970.

     24    Judiciary Committee Report on HCSCS for Senate Bill No.
352,  House  Journal Supp. No. 10 at 1, 1970  House  Journal  744
(emphasis added).

     25     15  U.S.C.   45(a)(1)  provides:  Unfair  methods  of
competition  in  or affecting commerce, and unfair  or  deceptive
acts  or  practices in or affecting commerce, are hereby declared
unlawful.

     26    AS 45.50.545 provides: In interpreting AS 45.50.471 due
consideration and great weight should be given the interpretation
of  15 U.S.C.  45(a)(1) ( 5(a)(1) of the Federal Trade Commission
Act).

     27     1974 House Journal 122, Letter of Governor William A.
Egan to the Honorable Tom Fink, Speaker of the House.

     28    House Journal Supp. No. 10 at 1.

     29    The prefatory note states in part as follows:

          The tort action for deceptive trade practices
          or  passing off developed from the common-law
          action   for   trademark  infringement.    It
          embraced  imitation  of fanciful  and  coined
          marks  and  names as well as those which  had
          developed  trade  significance  but  did  not
          qualify   technically  as  trademarks.    The
          action  was  historically available  whenever
          one trader diverted patronage from a rival by
          falsely representing that his goods were  the
          goods of his rival.
          
          The  prefatory  note  goes  on  to  observe  that  this
doctrine  was developed largely in the federal courts as  federal
common  law.   When  federal common law  was  abolished  in  Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal judges were
obliged to rely on state law which had marked time and was poorly
developed.   Thus  one  reason for the  Uniform  Deceptive  Trade
Practices Act was to reinstate the causes of action available  to
businesses  against  other businesses that  had  developed  as  a
matter of federal common law but were effectively extinguished by
the  Erie  doctrine.   74 U.L.A. 265 (1985)  (prefatory  note  to
Uniform Deceptive Trade Practices Act).

          The  prefatory note also indicates that another purpose
of  the  proposed act was to alter the common law doctrine  under
which  a  businessmen  was not generally subject  to  common  law
liability   to   a  fellow  tradesman  for  false  or   deceptive
advertisement.  Id. at 266.

          The  comment to section 2(a)(5) of the Deceptive  Trade
Practices  Act  corresponding  to subsection  .471(b)(4)  of  the
Alaska  act refers to an Alaska Territorial case, Alaska Sales  &
Service,  Inc. v. Rutledge, 128 F. Supp. 1 (D. Alaska  1955),  in
which  the  court  held that a complaint by a  franchised  dealer
against a nonfranchised seller of automobiles that the latter was
misrepresenting his authority stated a valid cause of action  for
unfair  competition.  Similarly, other sections of the commentary
in   the  Uniform  Act  refer  to  cases  between  businesses  as
illustrative examples of the conduct intended to be prohibited by
the  act.  See, e.g., Parkway Baking Co. v. Freihofer Baking Co.,
255  F.2d  641 (3d Cir. 1958); Triangle Publications v. Rohrlich,
167 F.2d 969 (2d Cir. 1948); L.E. Waterman Co. v. Gordon, 72 F.2d
272  (2d  Cir.1934); Maytag Co. v. Meadows Mfg. Co., 35 F.2d  403
(7th  Cir.  1929); Burlington Mills Corp. v. Roy Fabrics,  91  F.
Supp. 39 (S.D.N.Y. 1950), affd per curiam, 182 F.2d 1020 (2d Cir.
1950);  Mayfair Farms, Inc. v. Socony Mobil Oil Co., 172 A.2d  26
(N.J. Super. 1961); Electrolux Corp. v. Val-Worth, Inc., 6 N.Y.2d
556 (N.Y. 1959).

     30     The  federal courts have repeatedly and  historically
applied [the provisions of 15 U.S.C.  45(a)(1)] to situations not
involving  consumers.  Larsen Chelsey Realty Co. v.  Larsen,  656
A.2d  1009, 1020 (Conn. 1995) (citing Yamaha Motor Co.,  Ltd.  v.
Federal  Trade Commn, 657 F.2d 971 (8th Cir. 1981), cert.  denied
sub  nom.  Brunswick Corp. v. Federal Trade Commn, 456  U.S.  915
(1982);  Sandura Co. v. Federal Trade Commn, 339  F.2d  847  (6th
Cir.  1964); American Tobacco Co. v. Federal Trade Commn, 9  F.2d
570 (2d Cir. 1925), aff'd, 274 U.S. 543 (1927)).