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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. International Seafoods of Alaska, Inc. v. Bissonette (09/01/2006) sp-6038

International Seafoods of Alaska, Inc. v. Bissonette (09/01/2006) sp-6038, 146 P3d 561

     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

INTERNATIONAL SEAFOODS OF )
ALASKA, INC., an Alaskan ) Supreme Court No. S- 11568
Corporation, )
) Superior Court No.
Appellant, ) 3AN-02-5102 CI
)
v. ) O P I N I O N
)
DANNY BISSONETTE, TOM L. ) No. 6038 - September 1, 2006
HUFFER, EVERETT M. HURLEY, )
DALE L. WEESE, GWEN M. NEAL, )
and ETHAN WILLIAMS, for )
themselves and on behalf of similarly )
situated persons, )
)
Appellees. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances:   John   S.  Hedland,   Hedland,
          Brennan   and   Heideman,   Anchorage,    for
          Appellant.  William L. Choquette, Choquette &
          Farleigh, LLC, Anchorage, for Appellees.

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

          CARPENETI, Justice.

I.   BACKGROUND
          A  group  of commercial salmon fishers from the  Egegik
district  of  Bristol Bay sued International Seafoods  of  Alaska
(ISA)  alleging that ISA breached its contract by paying a  lower
price  at the end of the season than it had earlier promised.   A
jury  agreed.  Because the superior court properly certified  the
group of fishers as a class, correctly rejected ISAs proposal  to
use  a  separate  verdict form for each class  member,  correctly
instructed  the  jury, did not abuse its discretion  in  imposing
limited sanctions on absent class members who did not respond  to
discovery,  and  acted within its discretion  in  augmenting  the
plaintiffs  attorneys fees under Rule 82, we affirm the  superior
court in all respects.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Appellees  are  set net salmon fishers  in  the  Egegik
District  of  Bristol Bay  who sold red (sockeye) salmon  to  ISA
during the 2000 fishing season.  The fishers allege ISA underpaid
them for the delivered salmon.  They maintain that ISA agreed  to
pay  the competitive Bay price for red salmon, which at the  time
was  between $0.65 and $0.70 per pound.  ISA argues that it  only
agreed to pay the posted price of $0.50 per pound.
          Buyers  in  Bristol Bay traditionally pay a  posted  or
grounds price at the time the salmon is delivered.  Later in  the
season,  big  buyers such as Trident, Peter Pan, or Icicle  often
set a higher price, and smaller buyers match that price.  This is
called matching the majors or meeting the bay price.  Buyers will
then pay the fishers a retro bonus at the end of the year to make
up  the  difference between the posted price and the  bay  price.
This  practice of paying a base price during the season and  then
paying  a  retro  later  is well accepted  in  Bristol  Bay.   An
employee  of  ISA  acknowledged this practice, testifying,  Well,
when  we paid retros, we paid them under the premise that we  had
to  keep our fishermen.  If we didnt pay what our competition was
paying,  then our fishermen would go away.  And thats  thats  why
we  paid   thats why we matched other peoples prices even  if  we
lost  money.   The  employee  further  elaborated  regarding  the
fishing season in question:
          Well,  in this case, in 2000, everyone  knew,
          because Trident . . . came out in the  middle
          of  the season and said that they were  going
          to  pay  65  cents  for the  fish.   So  once
          Trident,  whos  the leader  in  Bristol  Bay,
          comes  out and says that, then its  you know,
          the discussions over, really, what people are
          going  to  pay.  Everybody pretty much  knows
          what theyre going to get.
          
          The  fishers  and buyers learn about increases  in  the
posted  price and the anticipated bay price from sources such  as
the National Fisherman, the Alaska Fishermans Journal, Department
of Fish and Game publications, and locally posted notices.  Since
1987  ISA  always  paid the bay price or close  to  it.   In  the
several  years leading up to 2000, ISA matched the majors.   When
ISAs  posted price was lower than the competitive bay price,  ISA
paid retros.
          The  two main fish buyers on Egegik beach in the  years
leading  up to 2000 were ISA and Big Creek.  Big Creek  left  the
Egegik   district  in  1999  and  leased  its  dock  and  related
facilities to ISA.  The fishers expressed concern that ISA  would
have a monopoly on the Egegik beach for the 2000 season, and that
as a result ISA would not pay competitive prices for the salmon.
          On  May 1, 2000  before the start of the fishing season
ISA  sent  a letter to all Egegik fishers.  The letter stated  in
part:
          Dear Egegik Fishermen:
          Greetings again from everyone here at  I.S.A.
          The  2000  salmon season is ready to  kickoff
          and we wanted to let all of you know that  we
          have  acquired the Big Creek Fisheries  plant
          and  property.  We just wanted  to  speak  to
          some  of  the  concerns that  fishermen  have
          expressed to us.  Here they are:
          . . . .
          3.   Will  I.S.A.  continue to be competitive
               with the price?
          Yes.  We have always done things according to
          our  own costs and sales and we will continue
          to  do  that.   We  know that  to  keep  your
          business  we  must  be competitive  with  our
          price  and  by  acquiring Big  Creek  we  are
          making  a financial commitment to do business
          on the beach for years to come.
          
           The  fishers interpreted this letter to mean that  ISA
would  match  the majors and pay the competitive  bay  price  for
salmon that season.  The fishers focused on the word competitive,
which  they  contend  has  a specific  meaning  in  Bristol  Bay.
According to the fishers, being competitive in Bristol Bay  means
paying  bay  price and [being] competitive with every other  fish
buyer in the area and the district.  Based on common practice  in
Bristol  Bay, ISAs previous course of dealing, and ISAs  explicit
promise to be competitive with our price, the fishers argued that
they  had  a contract to provide salmon in exchange for  the  bay
price and that ISA breached this contract.  The fishers also rely
on  a  meeting  between  fishers and ISA representatives  in  the
summer  of 2000, during which ISA allegedly promised to  pay  the
bay price.
          ISA  contends  on appeal that it made no such  promise.
ISA  looks to the language in the letter regarding its own  costs
and sales.  The cannery argues on appeal:
          ISAs   purpose  in  utilizing  the   language
          relating  to its own costs and sales  was  to
          make  clear  that  the  amount  to  be  paid,
          including  any  retro payment that  might  be
          made  at  the end of the year, would have  to
          depend  upon  its own market conditions,  and
          not  those of a competitor such as the  major
          buyers in Bristol Bay.
          
(Emphasis in original.)
          ISA  claims it needed to base its payments on  its  own
profit  margin and not that of its competitors.  Due to a variety
of  factors,  ISA  lost money on the Egegik  operation  in  2000.
Consequently, it determined that it could not pay the retro above
the posted price.
     B.   Proceedings
          Six  Egegik  fishers  filed a  class  action  complaint
against  ISA on February 28, 2002.  The fishers argued that  they
relied on ISAs representations that the cannery would pay fishers
the  competitive bay price, and that ISA subsequently  failed  to
pay   that  price.   They  requested  monetary  damages  for  the
difference between the price paid and the bay price.  (They  also
requested  damages  for  plugging, which  refers  to  a  cannerys
inability  to buy all the fish provided by the fishers,  although
they  later  dropped  that claim.)  They sought  pre-  and  post-
judgment interest, costs, and attorneys fees.
          In  August 2002 plaintiffs moved to certify the suit as
a  class  action.  They defined the class as all fishers  in  the
Egegik  District  who sold fish to ISA during  the  2000  fishing
season.  Plaintiffs contended that they met the prerequisites for
class  certification  under Civil Rule 23, including  numerosity,
commonality, typicality, and adequacy of representation.
          ISA    strongly   opposed   the   motion   for    class
certification.   It  argued that plaintiffs could  not  meet  the
numerosity  requirement  because the  class  was  small  and  its
members  easily  identifiable.  In addition, ISA maintained  that
the  potential claims were sufficiently large to provide adequate
incentive for the fishers to pursue them individually.  ISA  also
challenged  the adequacy of representation, relying on  the  fact
that  only  a  few  fishers attended the  meeting  at  which  ISA
promised  to  pay  the retro.  ISA maintained  that  fishers  not
present  at  the  meeting could not claim  reliance  on  an  oral
contract,  and  thus  the  representatives  could  not   properly
represent them in the litigation.
          Superior   Court  Judge  William  F.  Morse   initially
declined  to certify the class until plaintiffs provided  further
evidence  of  the  policy  rationales  for  a  class  action   in
accordance  with Civil Rules 23(b) and 23(c).1   After  both  the
fishers  and  ISA submitted additional information,  Judge  Morse
certified  the class, defining it as [a]ll fishers  who,  in  the
year  2000,  took salmon from the Egegik District and sold  those
salmon to International Seafoods of Alaska, Inc.
          ISA  moved  for  reconsideration of  the  certification
order which was denied.  ISA then petitioned this court to review
the  superior courts class certification.  We denied the petition
for review.
          ISA  next requested that individual fishers who did not
answer  its  interrogatories be excluded or  dismissed  from  the
class.   ISA  declared that fishers who do not care enough  about
their  claims  to  devote  a few minutes to  providing  obviously
relevant information should have their claims dismissed  or  they
should  be  excluded from the class.  The superior  court  denied
ISAs  motion.   The  court  refused to  dismiss  claims  of  non-
responding  absent members, holding that such a  severe  sanction
          was not warranted.  Rather, the court restricted the evidence
that  plaintiffs  could  introduce  at  trial  to  documents   or
statements  that  had  been provided in discovery.   This  ruling
precluded non-responding plaintiffs from testifying at trial.
          ISA  again moved for reconsideration.  ISA argued  that
it  was  prejudiced  by  the courts ruling because  interrogatory
responses might have been favorable to it.  ISA had hoped to find
evidence  from  absent members that some of the fishers  had  not
received  any price information directly from ISA and thus  could
not  reasonably have relied on ISAs alleged representations.  The
superior  court denied ISAs motion.  The court acknowledged  ISAs
argument,  but  it  explained that the  negative  impact  of  its
decision on the defendant is simply a consequence of the  general
rule  that  parties  cannot obtain discovery  from  absent  class
members.  The court held that ISA had not shown sufficient  cause
to deviate from this general rule.
          Throughout  trial, ISA continued to argue  against  the
notion of a class action.  ISA fought class certification under a
variety  of  guises, particularly in relation to  the  use  of  a
single jury verdict form and the instruction to the jury that  it
find  a  single  final  price applicable  to  all  fishers.   ISA
requested  jury verdict forms for all 110 members of  the  class.
The  court held firm to the single verdict form, stating  [T]hats
the  whole  point  of a class action, . . .  you  dont  have  110
plaintiffs, you have a class.
          The  jury found that ISA owed an additional amount  for
the  red salmon it purchased from the plaintiffs in Egegik during
the 2000 season.  It set this amount at  $0.17 per pound.
          ISA  moved for judgment notwithstanding the verdict and
for  a  new  trial.   ISA  argued that Jury  Instruction  No.  72
overrode the jury fact-finding function by declaring as a  matter
of  law that the cannery had entered into a single contract  with
all  the fishers.  The cannery argued that even if the jury could
have  found  a  single contract, the court erred in  establishing
that as a matter of law.  It maintained that the practical effect
of  the jury instruction was to require the jury to find the same
price  for  all  fishers,  even if the overwhelming  majority  of
fishers  did not understand that they were entitled  to  the  bay
price.  The superior court denied ISAs motion.
          Meanwhile,  the  fishers moved for award  of  attorneys
fees.   They raised two separate fee issues: (1) what fees should
be awarded to the fishers as the prevailing party (fee shifting);
and  (2)  what fees the court, in its discretion, should  approve
for  payment  to  class counsel from members of  the  class  (fee
sharing).   Pursuant  to  the  formula  outlined  in  Civil  Rule
82(b)(1),3  the  court  awarded the  fishers  attorneys  fees  of
$55,985.46.   In addition, the court, as allowed  by  Civil  Rule
82(b)(3), augmented the fee award by $15,000 to account  for  the
additional work generated by class issues.4  Finally,  the  court
increased the baseline percentage paid by the class from  twenty-
five  percent  to  thirty-five percent,  so  that  class  counsel
received $212,043.99 through fee sharing.5
          ISA  appeals  the courts certification  of  the  class;
certain evidentiary and discovery rulings made by the court;  the
          issuance of a single jury verdict form, as well as a jury
instruction acknowledging a contract for a single price on  fish;
and the enhanced award of attorneys fees.
III. STANDARD OF REVIEW
          We  will  overturn  the  superior  courts  decision  to
certify  a  class  only if the court abused its discretion.6   We
will  find that the superior court abused its discretion only  if
we  are left with a definite and firm conviction, after reviewing
the record as a whole, that the trial court erred in its ruling.7
We review rulings on discovery sanctions for abuse of discretion.8
We also review evidentiary rulings for abuse of discretion.9
          ISA  contends  that  the superior courts  determination
that ISA entered into a single contract with all fishers and that
all fishers were entitled to the same price amounted in substance
to  the  grant  of  a partial directed verdict in  favor  of  the
fishers.   We  disagree with this characterization  and  conclude
that it was simply a resolution of a question of law, subject  to
de novo review.10   On questions of law, we adopt the rule of law
that  is  most  persuasive  in light of  precedent,  reason,  and
policy.11
          In  reviewing  the  superior  courts  rulings  on  jury
instructions,  we  apply our independent  judgment  to  determine
whether the challenged instruction states the law correctly.12
          We  will  overturn a superior courts award of attorneys
fees only upon a showing of abuse of discretion or a showing that
the award is manifestly unreasonable.13
IV.  DISCUSSION
     A.   The Trial Court Did Not Err in Certifying this Case  as
          a Class Action.
          ISA  first argues that this case never should have been
certified as a class action.14
          In  order  to be certified as a class, plaintiffs  must
meet the requirements of Civil Rule 23:
          One or more members of a class may sue or  be
          sued  as representative parties on behalf  of
          all only if (1) the class is so numerous that
          joinder of all members is impracticable,  (2)
          there are questions of law or fact common  to
          the  class, (3) the claims or defenses of the
          representative  parties are  typical  of  the
          claims or defenses of the class, and (4)  the
          representative   parties  will   fairly   and
          adequately  protect  the  interests  of   the
          class.
          
          In  addition  to  these prerequisites, a  class  action
should  serve  certain policy interests.  A class action  may  be
certified  if  it  alleviates risks of  inconsistent  or  varying
adjudications  or the disposition or impairment of  interests  of
members  of the class who are not parties to the adjudications.15
It  may also be certified if common questions predominate, making
it  a superior method for the fair and efficient adjudication  of
the controversy.16
          We  conclude  that the superior court did  not  err  in
          ruling that the fishers satisfied each of the prerequisites for a
class  action.   First,  they  meet  the  numerosity  requirement
because  the  class  is  numerous and  joinder  would  have  been
impracticable.   The  class includes  110  fishers  who  live  in
Alaska,  Washington, Maryland, Colorado, Oregon, California,  and
other  states.   While  there is no magic number  satisfying  the
numerosity requirement,17 a proposed class containing  more  than
forty  members  has been presumed to meet the requirement.18   In
addition, it would have been impracticable to join class  members
who are so geographically dispersed.
          Second, the commonality and typicality requirements are
met because the plaintiffs share a single legal issue arising out
of the same sequence of events: claimed breach of contract by ISA
in  setting  the  contract price during the 2000 fishing  season.
The  typicality requirement is satisfied when each class  members
claim  arises  from  the same course of events,  and  each  class
member  makes  similar  legal arguments to prove  the  defendants
liability.19   The  commonality requirement is satisfied  if  the
named plaintiffs share at least one question of fact or law  with
the  grievances  of the prospective class.20  In this  case,  the
fishers claims all arise out of the failure of ISA to pay the bay
price for the delivered fish.  Each fisher seeks the same damages
the  difference between the competitive bay price and  the  price
ISA actually paid.
          Finally,  because  the class representatives  have  the
same  interests  as the rest of the class and class  counsel  was
competent, representation is adequate.  For representation to  be
adequate,  the plaintiffs attorney must be qualified,  and  there
must  be no conflict of interest between the named plaintiff  and
the  other  members  of the class.21  ISA did not  challenge  the
qualifications of the attorneys representing the class.  There is
no   conflict  of  interest  among  class  members  because   all
plaintiffs  had the same interests and the same damages  and  any
fisher who did not wish to participate in the litigation had  the
opportunity to opt out.
          On  a  policy level, class certification was  necessary
because  otherwise  the  fishers faced  a  risk  of  inconsistent
adjudications and many of them may have elected not to  litigate.
Moreover,  because questions of law and fact common to the  class
predominate over questions affecting individual members, it would
be  more  fair and efficient to adjudicate these questions  as  a
class.
          The  question of class certification in this  case  was
litigated  extensively, and Judge Morse ultimately rejected  ISAs
arguments against certification.  The court certified the  class,
defining  it as [a]ll fishers who, in the year 2000, took  salmon
from  the  Egegik District and sold those salmon to International
Seafoods  of  Alaska,  Inc.  ISA has not  demonstrated  that  the
superior  court  abused its discretion in certifying  the  class.
For the reasons set out above, we affirm the class certification.
     B.   The  Trial  Court  Did  Not  Abuse  its  Discretion  in
          Declining To Impose the Most Severe Sanction on  Absent
          Class  Members  Who  Failed  To  Respond  to  Discovery
          Requests.
          
          ISA  submitted  a  set of discovery requests  to  class
members  via  the  plaintiffs attorneys.  Many  of  the  passive,
absent  members  did not respond.  ISA asked the trial  court  to
sanction  non-responding absent members by having their  interest
in  the  litigation  dismissed or having them excluded  from  the
class.   Judge  Morse  declined to adopt this draconian  measure,
stating,  That  is  the most severe discovery  sanction  and  not
warranted  here.   Instead,  the court  restricted  the  evidence
plaintiffs  could introduce at trial to documents  or  statements
that  had  been  provided in discovery.  ISA maintains  that  the
superior court abused its discretion when it declined to  dismiss
or  exclude  these non-responding absent class members  from  the
litigation.
          The  primary questions ISA raises are (1) whether  non-
responding  class members should be considered  parties  for  the
purposes  of  discovery,  and (2) if  so,  whether  they  can  be
sanctioned for failing to reply to interrogatories.
          The  United States Supreme Court has stated  that  non-
named class members may be parties for some purposes, but not for
others.22   The  label  party  does  not  indicate  an   absolute
characteristic,  but rather a conclusion about the  applicability
of  various  procedural rules that may differ based on context.23
In  Devlin  v.  Scardelletti, the Court concluded that  non-named
class  members were parties in the sense of being  bound  by  the
settlement.24  Similarly, non-named class members are parties  in
the  sense  that the filing of an action on behalf of  the  class
tolls  a  statute of limitations against them.25   Otherwise  all
class  members  would be required to intervene to preserve  their
claims,  thereby  defeating  the  goals  of  simplification   and
efficiency.26
          In  Transamerican Refining Corp. v. Dravo,27 a  federal
district  court  considered  whether absent  class  members  were
parties  for  the  purposes of discovery.  The court  noted  that
Federal  Rules  of Civil Procedure 33 and 34 do not  provide  for
discovery  against absent class members as a matter of  course.28
However,  it  noted that the majority of courts  considering  the
scope  of  discovery  against absent class members  have  granted
discovery via interrogatories when: (1) the information requested
is  relevant  to  the  decision  of  common  questions;  (2)  the
discovery  requests are offered in good faith and are not  overly
burdensome;  and  (3) the information is not available  from  the
class  representative parties.29  The court in  Dravo  determined
that  limited  discovery  under the circumstances  was  warranted
because  the  discovery sought was relevant to  the  decision  of
common  questions and may have been known only  to  absent  class
members.30
          The  Seventh  Circuit addressed the  same  question  in
Brennan v. Midwestern United Life Insurance Co.31  In that  case,
the court concluded that absent class members may be required  to
submit  to discovery, and that sanctions are available to  compel
compliance with such discovery orders.32  However, the court also
acknowledged that dismissal of absent class members claims  is  a
drastic  sanction.33   Ultimately, the court  held  that  [w]hile
absent  class  members  should  not  be  required  to  submit  to
          discovery as a matter of course, if the trial judge determines
that  justice to all parties requires that absent parties furnish
certain information, we believe he has the power to authorize the
use of the Rule 33 and 34 discovery procedures.34
          Some courts have rejected Brennan and ruled that absent
class members are not subject to discovery.  In Gardner v. Awards
Marketing  Corp.,35 the federal district court in Utah held  that
the defendant could not submit proposed interrogatories to absent
class   members.   Defendants  in  that  case  sought  to  submit
interrogatories to all members of the class.  The  court  refused
this  request in part because it would be incompatible  with  the
rationale  of  Rule 23, an undue burden upon the members  of  the
class,  unnecessary,  and unjustifiably dilatory  to  permit  the
proposed interrogatories.36  The court warned against the  danger
of  irreconcilable conflicts between the class action concept and
otherwise    permissible   discovery,    and    concluded    that
interrogatories should be authorized only upon a  strong  showing
of   necessity  or  likely  material  aid  in  resolving   common
questions.37
          It  is  clear from these cases that a trial  court  has
broad discretion to choose whether to impose any sanctions at all
on  the  non-responding class members, as well as the  degree  of
punishment.  We will overturn the trial courts decision  only  if
it  manifests  an abuse of discretion.38  While the  trial  court
could have chosen to impose more severe sanctions against the non-
responding  class members in line with Dravo,  it  also  had  the
option of imposing less drastic sanctions.  The trial court opted
for an intermediate sanction: to exclude from testimony documents
not  identified  or  produced and oral statements  not  disclosed
during discovery.  Judge Morse was well within his discretion  to
adopt this measure.
     C.   The Trial Court Did Not Err in Refusing To Allow ISA To
          Place the Complaint into Evidence or in Permitting  the
          Fishers   To   Elicit  Testimony  Regarding   Witnesses
          Subjective Feelings.
          
          In  its statement of the issues on appeal, ISA asks  us
to  review  whether  the trial court erred in refusing  to  allow
defendant  to place the complaint into evidence, and whether  the
court  erred  in permitting the fishers to elicit testimony  from
witnesses as to their subjective feelings about their entitlement
and  interpretations of statements attributed to  the  defendant.
In  its  briefing to this court, ISA addresses the issue  of  the
complaint only in a footnote and does not provide any argument as
to  whether the court abused its discretion in refusing to  allow
the complaint to be entered as evidence.  Thus, this argument  is
waived.39
          Beyond the statement of the issues, ISA never addressed
the final question regarding the propriety of eliciting witnesses
subjective  feelings and interpretations of ISAs statements.   An
issue  raised in the points on appeal but not adequately  briefed
is considered abandoned.40
     D.   The Trial Court Did Not Err in Giving the Jury a Single
          Verdict Form.
          ISA  maintains that it had separate contracts with each
of  the  fishers,  and  that it was entitled  to  have  the  jury
adjudicate  each contract separately, as though this were  not  a
class  action.   ISA  relies on Krossa v. All  Alaskan  Seafoods,
Inc.,41 which it interprets to mean that a particularized decision
is  necessary  as  to each individual claim.   We  conclude  that
Krossa does not stand for the proposition asserted by ISA.
          Krossa was not a class action.  In that case, fisherman
John  Krossa signed a contract with All Alaskan Seafoods to  fish
for  crab in exchange for a percentage of the gross receipts from
the  venture.42  Unfortunately, the parties relied  on  different
interpretations  of  the  contractual phrase  regarding  payments
based  on gross receipts.43  All Alaskan did not calculate  gross
receipts  in accordance with custom of the trade.44   Instead  of
compensating the crew based on the price per pound of  the  catch
the typical means of determining gross receipts  All Alaskan used
a  complicated  formula based on an artificial, fixed  price  per
pound.45   The term gross receipts was ambiguous and the  parties
understood  the  agreement  differently.46   Consequently,  until
Krossa  understood  the gross receipts formula  employed  by  All
Alaskan, there was no contract.47
          In  deciding Krossa, we looked to Narte v. All  Alaskan
Seafoods,  Inc.,48  an unpublished federal  district  court  case
addressing  the same All Alaskan contract.  Krossa  attempted  to
argue that the meaning of gross receipts had been established  in
Narte,  and  that  All  Alaskan was  collaterally  estopped  from
relitigating the meaning of the phrase.49  However,  we  rejected
Krossas argument, noting that the federal district court in Narte
specifically emphasized that its findings were intended to  apply
only  to  the plaintiffs in that case.50  Thus, we held that  the
interpretation  in  Narte had no collateral  estoppel  effect  in
Krossa.51
          ISA  relies  on  our  statement in  Krossa  that  Narte
determined  only  the  meaning of the term  [gross  receipts]  as
understood  by  the particular parties,52 to  mean  that  we  can
determine  the  effects  of  a  contractual  term  only   on   an
individualized  basis.   Consequently, ISA  requested  individual
verdict   forms   for   each   class   member.    However,   ISAs
interpretation  of Krossa and Narte ignores the fact  that  those
cases, unlike the current case, were decided individually and not
as  part of a class action.  The parties in Krossa and Narte sued
All  Alaskan  separately, and in different courts.  In  contrast,
despite ISAs wishes to the contrary, this case has been certified
as a class action.
          The  present case is quite similar to State, Commercial
Fisheries  Entry  Commission  v. Carlson.53   In  that  case,  we
explained  that  class  action suits are  necessary  to  avoid  a
multiplicity of duplicative lawsuits.54  The question in  Carlson
was  whether  Alaska could charge nonresident commercial  fishers
more  for  commercial fishing licenses than it  charged  resident
commercial  fishers.55  The state sought  to  require  that  each
nonresident commercial fisher file suit on his or her own behalf.
We declined to enforce such a requirement because it would result
in  multiple duplicative suits.56  Accordingly, we held that  the
          trial judges decision to allow named class members to sue on
behalf of unnamed class members was proper.57
          ISA,  like  the  state in Carlson,  wants  each  Egegik
fisher to file suit individually to enforce the contract for  the
2000  fishing  season.   This  would  have  the  same  effect  as
requiring each commercial fisher to sue on his or her own  behalf
to recover a license overcharge.  ISA has already lost its bid to
decertify  the class and cannot circumvent that decision  now  by
arguing  that  it  is entitled to individual  verdicts  for  each
fisher.   The  fishers in the current case are  plaintiffs  in  a
class  action.   A class of plaintiffs is entitled  to  the  same
verdict.58   The superior court did not abuse its  discretion  in
providing only one verdict form.
     E.   The   Trial  Court  Did  Not  Err  in  Issuing  a  Jury
          Instruction  Stating that ISA and the  Fishers  Entered
          into  a  Contract Under Which ISA Would Pay All Fishers
          the Same Price.
          ISA   contends   that   the  trial  court   erroneously
determined  as a matter of law that each fisher was  entitled  to
the  same price.  The cannery states, [I]t was fundamental  error
for  the  court to hold, as a matter of law, that ISA had entered
into  a  single contract with all of the fishers and that all  of
the  fishers were automatically entitled to the same price.   ISA
contends  that  the  trial  court  erred  by  incorporating   its
conclusion  that there was a single contract at  a  single  price
in[to]  its  jury  instructions, particularly instruction  number
seven.59  We disagree.
          Jury Instruction No. 7 asks jurors to determine whether
ISA  promised  to pay a particular price as part of its  contract
with the Egegik fishers.  Specifically, the instruction says:
               In  this  case  the plaintiffs  and  the
          defendant, International Seafoods of  Alaska,
          Inc.,   agree  that  they  entered   into   a
          contract.   The plaintiffs claim that,  under
          the  contract, the defendant promised to  pay
          all  plaintiffs what the plaintiffs  describe
          as  the competitive price or bay price, to be
          determined at the end of the season.
          
               The  defendant denies that this  promise
          was  made.  The defendant maintains  that  it
          promised  to  pay  all  plaintiffs  the  same
          price.  It claims that it agreed to pay $0.50
          per  pound with the possibility that it would
          pay  more  at  the end of the season  if  its
          sales  and  costs  permitted  a  supplemental
          payment.
          
               You must decide whether a promise to pay
          a  particular price was made as part  of  the
          contract.   A  promise may  be  implied  from
          conduct  or words.  The law does not  require
          that  the conduct or words be in any  special
          form.
          
               To  find that a promise was made as part
          of  the contract, you must decide that it was
          more likely true than not true that:
          
               (1)    The   defendant   promised    the
          plaintiffs  as  a  group that  the  defendant
          would pay the competitive or bay price; and
          
               (2)  The defendants promise was made  in
          exchange  for  something of  value  given  or
          promised by the plaintiff.
          
               If  you decide that both things are more
          likely   true   than  not  true,   then   the
          defendants promise was part of the contract.
          
               Otherwise, you must return a verdict for
          the defendant on this claim.
          
(Emphasis added.)
          ISA  argues  that this jury instruction  precluded  the
jury  from  determining that different fishers were  entitled  to
different   prices   based  upon  their  individual   contractual
arrangements with ISA.  However, ISA undercut its own argument by
steadfastly  maintaining at trial that it entered into  the  same
contract  with each fisher and that it was simply contesting  the
price.   Over and over, ISA argued that it had a contract  for  a
single price with all of the Egegik fishers, but that it was at a
lower  price  than the one claimed by the fishers.  For  example,
during  opening statement to the jury, counsel for ISA repeatedly
contrasted plaintiffs argument for the bay price with  the  price
that  ISA  had  agreed  to pay.  During the  argument  over  jury
instructions, ISA stated, ISA believes everybodys supposed to get
the  same price, but its not the price they think theyre supposed
to  get.  It also noted, [Our] position is we said were going  to
pay  a 50-cent ground price.  If our costs and sales justify  it,
were  going to pay a retro at the end of the year.  Later, during
closing statements, ISA stated that its price was 50 to 55 cents,
depending on where the fish were delivered.  Thus, the portion of
the  jury instruction stating that ISA maintains that it promised
to  pay  all plaintiffs the same price and that it agreed to  pay
$0.50  per  pound  with the possibility that it would  pay  more,
accurately reflected ISAs position.  The trial court did not  err
in explaining that position to the jury.
          In addition, even if ISA had not actually conceded that
it intended to pay a single rate to all Egegik fishers, it failed
to prove the existence of multiple contracts for different rates.
ISA  maintains  that  there should be  a  strong  presumption  of
different  contracts  because there is no  signed  contract,  and
because ISA and the fishers interpreted the only written document
the  May 1 letter  differently.  ISA looks to Krossa60 to justify
this  argument.    In  Krossa, although all crew  members  signed
identical  contracts, some crew members had  oral  communications
with  All Alaskan regarding the meaning of the contracts and some
did not.61  Because the contract language in Krossa was ambiguous
and   the  parties  understood  the  agreement  differently,   we
          concluded that the written agreement signed by Krossa did not
constitute a valid contract.62  ISA analogizes our Krossa analysis
to assert that its interactions with the Egegik fishers resulted,
not in an invalid contract, but rather, in multiple contracts.
          ISAs  analysis is fundamentally flawed for two reasons.
First,   the   fishers  in  Krossa  did  not  share  one   common
understanding   of   the  compensation  system.    Rather,   some
understood gross receipts in its traditional sense, while  others
had been informed of All Alaskans unique definition.63  Thus,  we
explicitly  declined  to  adopt the meaning  of  the  term  gross
receipts  determined by the Narte court, even though the  fishers
in  both  Krossa  and  Narte were suing  over  the  same  written
agreement.64  In contrast, the parties in this case do not dispute
the meaning of the term bay price.  The question in this case  is
whether  ISA intended to pay the bay price to all Egegik  fishers
when it told them it would be competitive, or whether it intended
to  pay the ground price to all fishers.  The jury concluded that
ISA agreed to pay all fishers the bay price.
          Second, unlike Krossa, the question in the present case
is not whether the fishers and ISA ever had a valid contract, but
rather  whether the May 1, 2000 letter changed the terms of  that
contract.   ISA contends that the letter did change the  contract
as  applied to all the Egegik fishers; the fishers disagree.  Had
the  jury determined, in accordance with ISAs argument, that  the
letter changed the terms of the contract, all fishers would  have
received  only the ground price.  Since the jury agreed with  the
fishers that the letter had no effect on the prior oral contract,
all  fishers were entitled to a retro payment based on  the  same
price  per pound.  Either way, the superior court did not err  in
holding that all fishers were entitled to the same price.
          As it turned out, the jury concluded, after hearing all
the  evidence, that ISA had contracted to pay the fishers the bay
price.   It interpreted the term competitive to refer to the  bay
price and not to ISAs price margin.
     F.   The  Trial  Court  Did  Not  Abuse  Its  Discretion  in
          Augmenting the Attorneys Fee Award.
          
          ISA   complains  that  the  trial  court   abused   its
discretion  in  augmenting the attorneys fee  award  by  $15,000.
Civil  Rule  82  calls  for  partial reimbursement  by  the  non-
prevailing  party of the fees the prevailing party has  incurred.
Rule  82(b)(1) establishes a formula tying reimbursement  to  the
amount of the money judgment the prevailing party received.   The
trial court held that, pursuant to this rule, ISA owed the Egegik
fishers $55,985.46, subject to variation under Rule 82(b)(3).
          Rule  82(b)(3) permits the court to vary  an  attorneys
fee  award.  The trial court decided to increase the award  based
on  the  work  performed and the efficiency of the  class  action
mechanism for the pursuit of this claim.  According to the court,
ISA  benefitted from the class action by avoiding the expense  of
multiple trials.
          ISA  challenges this conclusion, declaring that it  was
disadvantaged  rather than advantaged by the class  action.   But
ISA  does  not cite any authority for reversing the trial  courts
          decision.  We conclude that the court did not abuse its
discretion in augmenting the plaintiffs award of attorneys fees.
V.   CONCLUSION
          Because the class of fishers was properly certified and
all   subsequent   decisions  flowing  from  this  certification,
including  the  single verdict form and Jury Instruction  No.  7,
were  appropriate, because the superior court did not  abuse  its
discretion  in sanctioning the absent class members or augmenting
attorneys  fees awarded to the prevailing party, and because  the
superior  court  did  not err in refusing to  enter  the  parties
pleadings  into evidence, we AFFIRM the disputed rulings  of  the
superior court in all respects.
_______________________________
     1     Civil  Rule  23(b)  requires that the  representatives
demonstrate  that  certification  is  necessary  (1)   to   avoid
inconsistent or varying adjudications; (2) to avoid impeding  the
ability  of  non-parties to protect their interests;  or  (3)  to
achieve  the  most efficient and fair adjudication.   Civil  Rule
23(c) requires the court to describe the members of the class and
to direct the best notice practicable to its members.

     2    Instruction No. 7 provided as follows:

               In  this  case  the plaintiffs  and  the
          defendant, International Seafoods of  Alaska,
          Inc.,   agree  that  they  entered   into   a
          contract.   The plaintiffs claim that,  under
          the  contract, the defendant promised to  pay
          all  plaintiffs what the plaintiffs  describe
          as  the competitive price or bay price, to be
          determined at the end of the season.
               The  defendant denies that this  promise
          was  made.  The defendant maintains  that  it
          promised  to  pay  all  plaintiffs  the  same
          price.  It claims that it agreed to pay $0.50
          per  pound with the possibility that it would
          pay  more  at  the end of the season  if  its
          sales  and  costs  permitted  a  supplemental
          payment.
               You must decide whether a promise to pay
          a  particular price was made as part  of  the
          contract.   A  promise may  be  implied  from
          conduct  or words.  The law does not  require
          that  the conduct or words be in any  special
          form.
               To  find that a promise was made as part
          of  the contract, you must decide that it  is
          more likely true than not true that:
               (1)    The   defendant   promised    the
          plaintiffs  as  a  group that  the  defendant
          would pay the competitive or bay price; and
               (2)  The defendants promise was made  in
          exchange  for  something of  value  given  or
          promised by the plaintiff.
               If  you decide that both things are more
          likely   true   than  not  true,   then   the
          defendants promise was part of the contract.
               Otherwise, you must return a verdict for
          the defendant on this claim.
          
     3    Civil Rule 82(b)(1) sets out a schedule for determining
attorneys  fees.  The fees vary based on the amount of the  money
judgment and whether the case went to trial.

     4     Under  Civil  Rule 82(b)(3), the  court  may  vary  an
attorneys  fee  award  if, upon consideration  of  a  variety  of
factors, the court determines that variation is warranted.

     5     The  court  sought to balance its desire to  award  an
increased  fee  in order to encourage counsel to  take  on  class
actions against its fear that too great a fee award would deprive
the  class of its compensatory damages.  The court concluded that
an increase from twenty-five percent to thirty-five percent would
encourage counsel to engage in modest class actions that  have  a
relatively low limit on the amount of damages that are  possible,
but  without  which few of the class members would be  unable  to
pursue the litigation.

     6    Bartek v. State, 31 P.3d 100, 101 (Alaska 2001); State,
Dept of Revenue v. Andrade, 23 P.3d 58, 65 (Alaska 2001).

     7    City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004); Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994).

     8     Hikita v. Nichiro Gyogo Kaisha, Ltd., 85 P.3d 458, 460
(Alaska 2004).

     9     City  of  Bethel v. Peters, 97 P.3d 822,  825  (Alaska
2004).

     10    Jarvis v. Ensminger, 134 P.3d 353, 357 (Alaska 2006).

     11    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     12    Samaniego, 83 P.3d at 1082.

     13     Feichtinger  v. Conant, 893 P.2d 1266,  1268  (Alaska
1995).  See also Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970).

     14     ISA  opposed class certification at the  trial  court
level  and in an interlocutory appeal to the supreme court.   The
trial  court  denied  the motion opposing certification,  and  we
denied  ISAs  petition for review.  A denial of  a  petition  for
review  does not constitute a determination of the issue  in  the
case,  and  it  is  not  a final judgment  for  purposes  of  res
judicata.  Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763  (Alaska
1977).

     15    Alaska R. Civ. P. 23(b)(1)(A)-(B).

     16    Alaska R. Civ. P. 23(b)(3).

     17     Miller v. Farmer Bros. Co., 64 P.3d 49, 54 n.1 (Wash.
App.  2003).   See  also Moskowitz v. Lopp, 128 F.R.D.  624,  628
(E.D. Pa. 1989).

     18    See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553
(11th  Cir.  1986).  We note that Alaska R. Civ. P. 23(a)-(e)  is
identical  to  Fed.  R. Civ. P. 23(a)-(e).  See  also  1  Herbert
Newberg & Alba Conte, Newberg on Class Actions  3:5, at 247  (4th
ed. 2002).

     19     Marisol  A. v. Giuliani, 126 F.3d 372, 376  (2d  Cir.
1997) (citation omitted).

     20     Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d
Cir. 1994).

     21    Marisol A., 126 F.3d at 378.

     22    Devlin v. Scardelletti, 536 U.S. 1, 9-10 (2002).

     23    Id. at 10.  Although bound by the settlement, non-named
class  members  who objected at the settlement  fairness  hearing
could appeal the approval of the settlement.  Id.

     24    Id.

     25    Id.

     26    Id.

     27    139 F.R.D. 619 (S.D. Tex. 1991).

     28    Id. at 621.

     29    Id.

     30    Id. at 622.

     31    450 F.2d 999 (7th Cir. 1971).

     32    Id. at 1004.

     33    Id. at 1003.

     34    Id. at 1005.

     35    55 F.R.D. 460 (D. Utah 1972).

     36    Id. at 462.

     37    Id. at 463.

     38    Hikita v. Nichiro Gyogyo Kaisha, Ltd., 85 P.3d 458, 460
(Alaska  2004)  (The  superior  court  has  broad  authority   to
determine appropriate sanctions for discovery violations, and its
decisions  in this area are subject only to review for  abuse  of
discretion.) (internal citation omitted).

     39     Alderman v. Iditarod Props., Inc., 104 P.3d 136,  146
(Alaska 2004) (holding that failure to adequately brief an  issue
constitutes waiver of the issue).

     40    Id.

     41    37 P.3d 411 (Alaska 2001).

     42    Id. at 413.

     43    Id.

     44    Id.

     45    Id.

     46    Id. at 417.

     47    Id.

     48    No. C95-794WD (W.D. Wash., July 31, 1997), affd, Narte
v.  All Alaskan Seafoods, Inc. (Narte II), 211 F.3d 1274, 2000 WL
237923 (9th Cir., March 1, 2000) (unpublished).

     49    Krossa, 37 P.3d at 418.

     50    Id.

     51    Id.

     52    Id.

     53    65 P.3d 851 (Alaska 2003).

     54    Id. at 872.

     55    Id. at 853.

     56    Id. at 872-73.

     57    Id.

     58    Id.

     59    Appellant Brief 2.

     60    37 P.3d 411 (Alaska 2001).

     61    Id. at 414.

     62    Id. at 416-17.

     63    Id. at 414.

     64    Id. at 418 (explaining that Narte decision did not have
collateral estoppel effect on interpretation of meaning of  gross
receipts).

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