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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pepper v. Routh Crabtree, APC (11/20/2009) sp-6437

Pepper v. Routh Crabtree, APC (11/20/2009) sp-6437

     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,


) Supreme Court No. S- 13042
Appellant, )
) Superior Court No. 3AN-07-8568 CI
v. )
) O P I N I O N
RICHARD L. CRABTREE; and ) No. 6437 November 20, 2009
Appellees. )

          Appeal   from   the  Superior  Court,   Third
          Judicial District at Anchorage, Mark Rindner,

          Appearances:  James  J.  Davis,  Jr.,  Alaska
          Legal  Services  Corporation, Anchorage,  and
          Deepak   Gupta,  Public  Citizen   Litigation
          Group,   Washington,  D.C.,  for   Appellant.
          Richard  L. Crabtree and Ryan W. Fitzpatrick,
          Routh    Crabtree,   APC,   Anchorage,    for
          Appellees.   Joanne  S.  Faulkner,   National
          Association of Consumer Advocates, New Haven,
          Connecticut,   Charles   Delbaum,    National
          Consumer  Law  Center, Boston, Massachusetts,
          and  Thomas  M.  Daniel, Perkins  Coie,  LLP,
          Anchorage, for Amici Curiae.

          Before:     Fabe,  Chief  Justice,  Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          EASTAUGH, Justice.
          Robin  Pepper sued an Anchorage debt collection  agency
and its lawyers, claiming that they violated Alaskas Unfair Trade
Practices and Consumer Protection Act (UTPA) when they: (1)  sued
Pepper  in  state district court without first sending a  written
demand,   (2)  misrepresented  to  the  court  that  Pepper   was
competent,  and  (3) applied for default judgment  without  first
informing  Peppers  attorney.  The  superior  court  granted  the
defendants  motion  to  dismiss for failure  to  state  a  claim,
reasoning  that the Noerr-Pennington doctrine required the  court
to   strictly  construe  the  UTPA  to  avoid  burdening  conduct
protected by the petition clauses of the United States and Alaska
Constitutions.    Because  we  conclude   that   it   would   not
unconstitutionally  burden the defendants petitioning  activities
to  require  them to litigate debt collection claims  in  a  fair
manner, we reverse the dismissal of Peppers complaint.
          In  February and June 2004 Robin Pepper allegedly wrote
fifteen checks on which payment was later refused.1  The affected
merchants assigned the dishonored checks, which totaled  $518.80,
to  CRI,  LLC  (Checkrite)  for collection.   Checkrite  retained
attorney Richard Crabtree and his law firm, Routh Crabtree,  APC,
to recover the amount owed on the checks.
          In  October  2006  Routh Crabtree mailed  to  Pepper  a
demand  letter on behalf of its client in an attempt  to  recover
the  amount owed on the dishonored checks.  Routh Crabtree mailed
the  letter  to 601 E. 5th Avenue in Anchorage; that address  did
not  match  the  one  on Peppers dishonored checks,  was  not  an
address at which Pepper had ever lived, and did not correspond to
any actual building.
          In   December  2006  Checkrite  sued  Pepper  in  state
district  court,  alleging that she had not tendered  the  amount
owed.2   On April 14, 2007, Pepper was personally served  with  a
summons  and notice of judicial assignment.  By letter  of  April
25,  an  attorney  from Alaska Legal Services Corporation  (ALSC)
notified  Routh Crabtree that ALSC was representing Pepper.   The
letter claimed that Checkrite had failed to effectuate service on
Pepper and stated that ALSC would not file an answer until proper
service was made.
          Without  notifying ALSC, Checkrite applied on  May  30,
2007  for  entry of default and default judgment against  Pepper,
claiming that [t]he time within which [Pepper] could plead in  or
otherwise defend this action has expired.  Checkrites application
stated  that, [u]pon information and belief, based on the Defense
Manpower Data Center search certificate . . . [Pepper] is not  an
infant,  incompetent, nor a member of the  Armed  Forces  of  the
United  States protected by the Civil Relief Act.3  The clerk  of
court entered default against Pepper on June 11, 2007.
          On  July  16, 2007, Checkrite, through Routh  Crabtree,
withdrew  its application for default judgment on the  ground  an
ALSC  attorney had communicated to the undersigned his intent  to
represent the defendant in the instant case.
          Also  on  July 16, Pepper sued Routh Crabtree,  Richard
Crabtree,  and  CRI,  LLC  in superior court,  alleging  multiple
instances  of unfair or deceptive acts or practices in  violation
          of the UTPA.4  Peppers complaint alleged that: (1) the written
demand  was  not  made  in accordance with  AS  09.68.115,  which
requires that the demand be personally delivered or sent by first
class  mail  to the address shown on the dishonored  check;5  (2)
Pepper is mentally disabled, and the defendants swore out a false
averment to the court by stating that Pepper was not incompetent;
and  (3)  the  attorney  defendants, Routh Crabtree  and  Richard
Crabtree,  violated  Alaska  law that  required  them  to  notify
Peppers  attorney  before applying for entry of default  judgment
against her.6
          The  three  defendants, represented by Routh  Crabtree,
moved  to  dismiss Peppers suit under Alaska Civil Rule  12(b)(6)
for  failure to state a claim upon which relief could be granted.
Treating Peppers factual allegations as admitted for the  purpose
of  the  motion  to dismiss, Routh Crabtree argued  that  Peppers
claims  impermissibly  sought to impose civil  liability  on  the
defendants for exercising their constitutional right to  petition
the government.7
          The   superior  court  reasoned  that  Routh  Crabtrees
litigation activities constitute conduct clearly protected by the
petition  clauses of the United States and Alaska  Constitutions.
It  then  held  that the Noerr-Pennington doctrine  required  the
court to construe the UTPA so as to avoid burdening such conduct,
unless  the  UTPA clearly covers the specific conduct at  issue.8
Because it concluded that the UTPA did not  clearly provide  that
Defendants[]  alleged  activities violate[d]  that  statute,  the
court  granted  Routh  Crabtrees  motion  and  dismissed  Peppers
complaint with prejudice as to all three defendants.
          Pepper appeals.
     A.   Standard of Review
          We  review  de novo an order dismissing a complaint  on
the  basis  of Civil Rule 12(b)(6) for failure to state  a  claim
upon which relief can be granted.9  When reviewing  an order on a
motion to dismiss, we deem all facts in the complaint to be  true
and  provable.10   We will affirm a superior courts  grant  of  a
motion  to  dismiss  only if it appears  beyond  doubt  that  the
plaintiff  can  prove no set of facts that would entitle  her  to
          We  review  questions of statutory  and  constitutional
construction  de  novo, adopting the rule of  law  that  is  most
persuasive in light of precedent, reason, and policy.12

     B.   Whether  It  Was  Error  To Hold that  Routh  Crabtrees
          Conduct Was Entitled to Noerr-Pennington Immunity
          Pepper argues that the UTPA covers unfair and deceptive
debt-collection practices that occur in the context of litigation
and  contends  that neither Noerr-Pennington,  nor  the  petition
clause  on  which  that  doctrine  was  based,  immunizes   these
practices.   Routh  Crabtree responds  that  the  superior  court
properly dismissed the complaint based on the protection afforded
by the Petition Clause[s] of the U.S. and Alaska constitutions.
          Routh  Crabtree  argued below that  both  constitutions
protected its right to petition, and the superior court so  held.
Nevertheless,  because we have never meaningfully  addressed  the
state  petition  clause and have never implied that  it  is  more
protective  than  the  federal clause, we will  assume  that  the
relatively sophisticated federal authority on the topic  controls
in this case.
          The Noerr-Pennington doctrine initially evolved out  of
two  Supreme  Court antitrust cases: Eastern Railroad  Presidents
Conference v. Noerr Motor Freight, Inc.13 and United Mine Workers
v.  Pennington.14   The Court established  in  those  cases  that
parties  could  not  base  a Sherman Act conspiracy  on  evidence
consisting  entirely  of  activities of  competitors  seeking  to
influence public officials.15  The Court held in Noerr  that  the
Sherman Act was not intended to prohibit persons from associating
in  an  attempt to persuade the legislature or the  executive  to
take  particular  action with respect to a  law,  notwithstanding
whether the attempt was motivated by an anticompetitive purpose.16
The  Court  reasoned that [t]he right of petition is one  of  the
freedoms  protected  by the Bill of Rights,  and  we  cannot,  of
course,  lightly  impute to Congress an intent  to  invade  these
          The  Court later extended the Noerr-Pennington doctrine
to  include attempts to influence adjudicatory proceedings before
administrative agencies and courts.18  And by analogizing to Noerr-
Pennington, the Court has twice applied petition-clause  immunity
outside  the  antitrust arena, both times in cases involving  the
interpretation of the National Labor Relations Act (NLRA).19  The
Court held in those cases that [t]he filing and prosecution of  a
well-founded  lawsuit  may not be enjoined  as  an  unfair  labor
practice, even if [the lawsuit] would not have been commenced but
for  the plaintiffs desire to retaliate against the defendant for
exercising rights protected by the [NLRA].20
          The  United  States  Court of  Appeals  for  the  Ninth
Circuit   has   interpreted  the  Supreme  Courts  decisions   as
establishing   that  the  principles  of  statutory  construction
embodied  in the Noerr-Pennington doctrine apply with full  force
in  other  statutory contexts.21  In Sosa v. DIRECTV,  the  Ninth
Circuit   therefore  recognized  that  those  who  petition   any
department  of  the government for redress are  generally  immune
from statutory liability for their petitioning conduct.22  DIRECTV
had  sent  demand  letters to over 100,000  individuals,  falsely
asserting  that  its  records  showed  the  recipients  had  used
specialized  equipment  to steal its signal.23   DIRECTVs  demand
letters  threatened  legal action unless the recipient  forfeited
the equipment and paid a sum of money to settle the claim.24  Sosa
sued  DIRECTV for violating the Racketeer Influenced and  Corrupt
Organizations  Act (RICO).25  The district court dismissed  Sosas
          On  appeal, the Ninth Circuit reasoned that the  Noerr-
Pennington  doctrine  stands  for a  generic  rule  of  statutory
construction,  applicable  to any statutory  interpretation  that
could  implicate  the rights protected by the Petition  Clause.27
Refining  the  methodology the Supreme  Court  used  in  BE  &  K
          Construction Co. v. National Labor Relations Board,28 the Ninth
Circuit   reasoned   that  determining  whether  Noerr-Pennington
immunity   applies  in  any  given  case  involves  a  three-step
analysis.29   Under  the  Sosa approach,  the  court  must  first
determine whether the threat of adverse adjudication burdens  the
defendants  petitioning rights.30  If it  does,  the  court  must
proceed  to the second step of the analysis and determine whether
the  burden  identified  may  be imposed  consistently  with  the
Constitution.31  If there is a substantial question that  it  may
not be imposed consistently with the constitution, then the court
must proceed to the third and final step to determine whether the
statute  can  be  construed  to avoid burdening  the  petitioning
activity.32   The  Ninth  Circuit held  that  Sosas  claims  were
properly dismissed because Noerr-Pennington required the court to
construe  RICO  narrowly  to  avoid burdening  activity  arguably
falling within the scope of the petition clause.33
          In  arguing  below  that the Noerr-Pennington  doctrine
immunized  the  defendants from a lawsuit alleging violations  of
Alaskas  UTPA,  Routh Crabtree principally relied  on  the  Ninth
Circuits expansive interpretation of that doctrine.  The superior
court  appears  to  have  relied on Sosa  in  dismissing  Peppers
action.   It  stated  that Routh Crabtrees activities  constitute
conduct  clearly  protected by the Petition Clauses.   Therefore,
[u]nder  the  Noerr-Pennington doctrine, the court must  construe
Alaskas   UTPA   to  avoid  burdening  conduct  that   implicates
protections  afforded by the Petition Clause unless  the  statute
clearly provides otherwise.
          Although  we  agree that the three-step  Sosa  analysis
provides  a  convenient approach for considering  whether  Noerr-
Pennington applies in a given case, we conclude that the analysis
was not applied correctly in this case.
          The first step of the Sosa analysis requires courts  to
identify  what  burden the threat of adverse  adjudication  would
impose  on  the defendants petitioning rights.  In BE  &  K,  the
Supreme  Court  recognized  that to find  that  an  employer  had
violated  the  NLRA by filing unmeritorious suits against  unions
would  be  a burden by itself, considering the legal consequences
and  reputational harm that would flow from that determination.34
In Sosa, the Ninth Circuit concluded that to apply RICO liability
against  DIRECTV would quite plainly burden DIRECTVs  ability  to
settle legal claims short of filing a lawsuit.35
          For  purposes of applying the three-step Sosa analysis,
we  assume,  without deciding, that if Pepper were to prevail  on
her  UTPA  claims, Routh Crabtree would suffer the same  kind  of
burden  identified  in  BE & K because,  under  the  UTPA,  Routh
Crabtree would owe Pepper costs, attorneys fees, and the  greater
of  $500  or  three times her actual damages.36  Routh  Crabtrees
petitioning  activity might also be burdened in  the  sense  that
Routh  Crabtree  could not engage in conduct that might  increase
its  ability  to secure favorable judgments for its clients.   In
this respect, we will assume, without deciding, that a successful
claim  by Pepper conceivably might burden Routh Crabtrees ability
to  obtain  favorable judgments if the debtor  were  to  fail  to
answer or appear on time.
          The second step of the Sosa analysis requires courts to
determine   whether   the  potential  burden   can   be   imposed
consistently  with the constitution.  It is on  this  point  that
Routh  Crabtrees  immunity argument fails.  Even  assuming  Routh
Crabtree  would  be  somewhat  burdened  if  Peppers  claims  are
successful, it is difficult to see how subjecting Routh  Crabtree
to  UTPA liability for engaging in the conduct alleged here would
chill  its  First Amendment right to petition the government  for
redress.   Pepper  is not challenging Routh Crabtrees  rights  to
send  pre-litigation demand letters, file suit to collect overdue
money,  seek  default  judgment against defendants  who  fail  to
appear   or  answer  on  time,  or  litigate  its  claims  fully,
consistent  with well-known procedural, substantive, and  ethical
requirements.  Her complaint only seeks to hold Routh Crabtree to
account  if  the  manner  in which it allegedly  undertook  these
activities was unfair, deceptive, and in violation of  the  UTPA.
Allowing  Pepper to pursue her UTPA claims may create  additional
incentives  for Routh Crabtree to ensure that a compliant  demand
has   been  made,  to  ascertain  the  truth  of  its  competency
allegations,  and  to inform the debtors known counsel  of  Routh
Crabtrees intention to seek default judgment.  Routh Crabtree has
not  persuasively demonstrated that Peppers UTPA claims will,  if
successful, unduly restrict Routh Crabtrees right to petition the
government  for  redress  of grievances.   Peppers  claims  would
appear  to burden Routh Crabtrees petitioning activities no  more
than  our  rules of professional conduct or standards of practice
already  do.   As  Pepper  contends,  no  debt  collector  has  a
legitimate  interest  in pursuing collection  litigation  without
notifying  debtors, or in seeking to default incompetent  debtors
without notice to their lawyers or guardians.
          Moreover,  courts applying the federal  counterpart  of
the  UTPA,  the Fair Debt Collection Practices Act (FDCPA),  have
not  held  that  applying this statute to state  court  pleadings
would  burden petitioning rights.  For example, in Berg v. Blatt,
the  United  States District Court for the Northern  District  of
Illinois  declined  to rely on the Noerr-Pennington  doctrine  to
protect   false  representations  in  debt-collection  complaints
because  it  was not persuaded that imposing FDCPA  standards  of
accuracy  and  fairness on a state court filing  constitutes  any
genuine burden.37  The court held that the FDCPA explicitly  bars
exactly this kind of speech in debt collection letters and  other
communications and extending this bar to state court filings does
not   run  afoul  of  the  Noerr-Pennington  doctrines  goal   of
protecting  the First Amendment right to petition the courts  for
          We  conclude that Peppers UTPA claims do not  implicate
the  defendants petition clause rights and that any  burden  that
might  result if Peppers lawsuit is successful may be imposed  on
the   defendants   consistently  with  the  federal   and   state
constitutions.  In light of this conclusion, we do  not  need  to
reach  the third step of the Sosa analysis.  We hold that it  was
error to dismiss Peppers claims on Noerr-Pennington grounds.39
     C.   Whether  We Should Uphold the Superior Courts  Decision
          on Alternative Grounds
           Routh  Crabtree  also argues that the superior  courts
decision  may  be  upheld  on  four alternative  grounds.   Routh
Crabtree  raised  only  one of these arguments  in  the  superior
court,  which rejected the argument.40  Routh Crabtree  does  not
develop these arguments extensively.  Although the arguments  are
ostensibly  supported with case authority, on  close  examination
that authority is either not on point or unpersuasive.
          First,   Routh   Crabtree  argues  that   any   alleged
violations   are   exempt   from   UTPA   regulation   under   AS
45.50.481(a)(1) because they are already prohibited by the Alaska
Rules  of  Civil  Procedure and the Alaska Rules of  Professional
Conduct.41  This court explained in Smallwood v. Central Peninsula
General Hospital that AS 45.50.481(a)(1) exempts unfair acts  and
practices  from  the  purview of the UTPA only  where  [(1)]  the
business  is  both regulated elsewhere and [(2)] the unfair  acts
and  practices are therein prohibited. 42  We have held that  the
Rules  of  Civil Procedure and the Rules of Professional  Conduct
are  not  the  type  of ongoing, careful regulation  required  to
trigger an exemption under subsection .481(a)(1).43  Even if they
were,  it  is unlikely Routh Crabtree could show that the  unfair
acts alleged in this case were prohibited by such regulation.44
          Second, Routh Crabtree argues that applying the UTPA to
a    lawyers    representational   activities   would    be    an
unconstitutional infringement upon the exclusive jurisdiction  of
the  court  to  regulate  the practice of  law.   Routh  Crabtree
contends that only the entrepreneurial aspects of lawyering, such
as  billing  clients,  should  be subject  to  the  UTPA.   Routh
Crabtree  cites  for  support Short v.  Demopolis,  a  Washington
Supreme  Court  decision in which the court  considered  whether,
under  the states Consumer Protection Act, a former client had  a
claim  against  a  lawyer who delegated legal services  to  other
attorneys without the clients consent.45  But that court concluded
that   application   of  the  act  did  not   trench   upon   the
constitutional  powers of the court to regulate the  practice  of
law  because it did not purport to take away the courts power  to
admit,  suspend, or disbar.46  It favorably cited  a  Connecticut
Supreme  Court  case  that  recognized  both  that  the  judicial
disciplinary  system and consumer protection laws have  different
functions and that there was no reason why they cannot coexist.47
          We  conclude, as the Washington Supreme Court  held  in
Short,   that  the  attorney  disciplinary  system  and  consumer
protection laws can coexist as long as the legislature  does  not
purport  to  take  away  this courts exclusive  power  to  admit,
suspend, discipline, or disbar.
          Third,  Routh  Crabtree argues that this  court  should
join the growing body of jurisdictions that refuse to apply state
UTPA  statutes  to a lawyers representational activities.   Routh
Crabtree   contends   that  only  an  attorneys   entrepreneurial
activities,  such  as soliciting or billing  clients,  should  be
subject to the UTPA, and that the activities that relate  to  the
pure practice of law must be excluded from UTPA coverage.
          The  United  States  Supreme Court held  in  Heintz  v.
Jenkins  that  the  federal counterpart to the  UTPA  applies  to
attorneys   who   regularly  engage  in  consumer-debt-collection
          activity, even when that activity consists of litigation.48  We
are  likewise unpersuaded that a debt-collecting attorney  should
receive a special exemption from UTPA coverage.
          Routh  Crabtrees argument that attorney  liability  for
UTPA  violations would be inconsistent with an attorneys duty  of
undivided loyalty to his or her client is unpersuasive.  Rules of
professional  conduct  often create conflicts  between  attorneys
ethical  obligations  and their duties  of  loyalty  and  zealous
advocacy.    Applying   ethical  standards   to   debt-collecting
attorneys does not offend the attorneyclient relationship.
          Finally,  Routh Crabtree argues that Peppers  claim  is
not yet ripe for review because claims alleging a misuse of legal
proceedings   may  not  be  filed  until  such   litigation   has
terminated.    Routh   Crabtree  contends   that   the   ripeness
requirement  for cases alleging malicious prosecution  should  be
applied with equal force in the instant action.
          Imposing   a  termination  requirement  for   malicious
prosecution  claims is appropriate because favorable  termination
of the offending proceeding is a required element for a malicious
prosecution claim.49  But Routh Crabtrees argument that a similar
termination   requirement  should  apply  here  is  unpersuasive,
because termination of the underlying proceeding in this case  is
not  necessary  to ascertain whether Pepper can  prevail  on  her
claims  or whether she has been damaged.  Moreover, other  courts
permit parties to advance claims under statutes comparable to the
UTPA before the underlying action has terminated.50
          We reject these four arguments at least in part because
they  are  facially  unpersuasive as presented.51   We  therefore
decline  to affirm the superior courts decision on any  of  these
alternative grounds.
          Because  Peppers  claims  will  not  unconstitutionally
burden  the  defendants petitioning activity, the defendants  are
not entitled to immunity under the Noerr-Pennington doctrine.  We
therefore  REVERSE  the superior courts order dismissing  Peppers
complaint  for  failure to state a claim and remand  for  further

     1     This  description  of  the facts  is  taken  from  the
pleadings and materials filed by the parties before the  superior
court  granted the motion to dismiss.  We accept all well-pleaded
allegations  as  factually true and provable.  In describing  the
facts  we  are  not  resolving possible  factual  disputes.   Any
factual  disputes  will  have  to  be  litigated  on  remand   in
accordance with the legal conclusions we reach in this opinion.

     2    We assume for purposes of this appeal that Checkrite at
all  times acted through Routh Crabtree in prosecuting its  claim
against Pepper.

     3     Defense Manpower Data Center is an organization of the
Department  of  Defense that maintains the official  database  on
eligibility  for  military  medical care  and  other  eligibility

     4     AS 45.50.471.561.  Peppers complaint alleged that  the
[d]efendants  had  violated AS 45.50.471(a),  which  states  that
[u]nfair methods of competition and unfair or deceptive  acts  or
practices in the conduct of trade or commerce are declared to  be

          Unless  context requires greater specificity, we  refer
to the three defendants collectively as Routh Crabtree, the first-
named defendant in the caption of Peppers complaint.

     5    AS 09.68.115(d)(3).

     6     See  Brown  v. Lange, 21 P.3d 822, 829 (Alaska  2001);
City  of Valdez v. Salomon, 637 P.2d 298, 299 (Alaska 1981); Cook
v.  Aurora  Motors, Inc., 503 P.2d 1046, 1049 n.6 (Alaska  1972);
see also American College of Trial Lawyers, Code of Trial Conduct
Standard No. 13(b) (1994) (When a lawyer knows the identity of  a
lawyer representing an opposing party, the lawyer should not take
advantage  of  the  opposing lawyer by  causing  any  default  or
dismissal  to  be  entered  without  first  inquiring  about  the
opposing lawyers intention to proceed.).

     7     The  First Amendment to the United States Constitution
provides  in  relevant  part  that Congress  shall  make  no  law
respecting  .  . . the right of the people peaceably  .  .  .  to
petition the Government for a redress of grievances.  Article  1,
section  6 of the Alaska Constitution provides in relevant  part:
The  right  of  the  people peaceably  .  .  .  to  petition  the
government shall never be abridged.

     8     Cf. K & K Recycling, Inc. v. Alaska Gold Co., 80  P.3d
702, 724 (Alaska 2003) (The Noerr-Pennington doctrine evolved out
of  two United States Supreme Court cases in which the Court held
that  those  who attempt to influence legislative  and  executive
officials  are immune from antitrust liability.  The Court  later
extended   the   doctrine  to  include  attempts   to   influence
adjudicatory  proceedings  before the courts  and  administrative
agencies.) (footnotes omitted).

     9     Vanek  v. State, Bd. of Fisheries, 193 P.3d  283,  286
(Alaska 2008).

     10    Id. at 286 (citing Catholic Bishop of N. Alaska v. Does
1-6, 141 P.3d 719, 722 (Alaska 2006)).

     11     Valdez Fisheries Dev. Assn, Inc. v. Alyeska  Pipeline
Serv. Co., 45 P.3d 657, 664 (Alaska 2002).

     12    State v. Dupier, 118 P.3d 1039, 1044 (Alaska 2005).

     13     Eastern  R.R. Presidents Conference  v.  Noerr  Motor
Freight, Inc., 365 U.S. 127 (1961).

     14    United Mine Workers v. Pennington, 381 U.S. 657 (1965).

     15    Id. at 669.

     16     Noerr, 365 U.S. at 136; see also Pennington, 391 U.S.
at 669.

     17    Noerr, 365 U.S. at 138.

     18    California Motor Transp. Co. v. Trucking Unlimited, 404
U.S. 508, 510 (1972).

     19     BE & K Constr. Co. v. NLRB, 536 U.S. 516, 527 (2002);
Bill Johnsons Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983).

     20     Bill Johnsons, 461 U.S. at 743; see also BE & K,  536
U.S. at 527.

     21    Sosa v. DIRECTV, 437 F.3d 923, 930 (9th Cir. 2006).

     22     Sosa  v.  DIRECTV, 437 F.3d 923, 929 (9th Cir.  2006)
(citing  Empress LLC  v. City & County of S.F.,  419  F.3d  1052,
1056 (9th Cir. 2005)).

     23    Id. at 926-27.

     24    Id. at 927.

     25    Id.

     26    Id.

     27    Id. at 931.

     28    BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002).

     29    Sosa, 437 F.3d at 930 (citing BE & K, 536 U.S. at 525).

     30    Id. at 932.

     31     Id.   This  second step essentially asks whether  the
alleged   conduct   was  petitioning  activity,   non-petitioning
activity,  or activity incidental to petitioning.  See Sosa,  437
F.3d at 933 (In analyzing this question, we must consider whether
the   demand  letters  constitute  either  protected  petitioning
activity or activity [incidental to petitioning].).

     32    Id. at 932.

     33    Id. at 942.

     34    See BE & K, 536 U.S. at 530.

     35    Sosa, 437 F.3d at 932.

     36    AS 45.50.531(a); AS 45.50.537.

     37     Berg v. Blatt, Hasenmiller, Leibsker & Moore, L.L.C.,
No. 07 C 4887, 2009 WL 901011, at *6 (N.D. Ill., March 31, 2009);
see  also Gerber v. Citigroup, Inc., 2009 WL 248094, at *5  (E.D.
Cal.,  Jan. 29, 2009) (To find defendants immunized by the Noerr-
Pennington  doctrine  would eviscerate the Fair  Debt  Collection
Practices  Act.   Debt collectors should not be  able  to  employ
tactics forbidden by the FDCPA simply because they also happen to
be  lawyers, or because they are attempting to collect on a  debt
owed.);  Jordan  v.  Thomas & Thomas,  No.  C-1-04-296,  2007  WL
2838474,  at  *7  (S.D. Ohio, Sept. 26, 2007) (holding  that  not
applying  FDCPA  to false statements made to courts  would  allow
collectors . . . to accomplish through official legal proceedings
the  unfair and harassing practices expressly prohibited  by  the

     38    Berg, 2009 WL 901011, at *6.

     39     Pepper  also argues that Routh Crabtrees activity  is
exempt  from Noerr-Pennington immunity under the sham  exception.
The  United  States  Supreme Court held in the antitrust  context
that activity ostensibly directed toward influencing governmental
action does not qualify for Noerr-Pennington immunity if it is  a
mere  sham  to  cover an attempt to interfere directly  with  the
business  relationships  of  a  competitor.   Profl  Real  Estate
Investors, Inc. v. Columbia Pictures Indus., Inc., 508  U.S.  49,
51   (1993).   Because  we  conclude  that  the  Noerr-Pennington
doctrine does not preclude Peppers UTPA claims, we do not need to
decide whether the sham exception applies in this case.

     40    Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska  2001)  ([W]e can affirm a grant of summary  judgment  on
alternative grounds, including grounds not advanced by the  lower
court  or  the  parties.  Moreover, we will consider  any  matter
appearing  in  the record, even if not passed upon by  the  lower
court, in defense of the judgment.)  (emphasis added)); Atcherian
v.  State,  Dept of Revenue, Child Support Enforcement  Div.,  14
P.3d 970, 974 n.8 (Alaska 2000); but see Vaska v. State, 135 P.3d
1011,  1019 (Alaska 2006) (declining to affirm on legal  theories
raised  for  first time on appeal and remanding for consideration
by appeals court on those theories).

     41    AS 45.50.481(a)(1) states that with limited exceptions
(none of which is relevant here), the UTPA does not apply to

          an  act  or transaction regulated under  laws
          administered  by the state, by  a  regulatory
          board  or  commission[,] .  .  .  or  officer
          acting under statutory authority of the state
          or  of  the  United States,  unless  the  law
          regulating  the act or transaction  does  not
          prohibit  the practices declared unlawful  in
          AS 45.50.471.
          Routh     Crabtree     specifically     argues     that
misrepresentations to the court are prohibited under both  Alaska
Civil  Rule  11 and Rule 3.3 of the Alaska Rules of  Professional
Conduct,   and  that  seeking  default  judgment  without   first
notifying the opposing partys counsel is proscribed under  Alaska
Civil Rule 55(c).

     42    Smallwood v. Cent. Peninsula Gen. Hosp., 151 P.3d 319,
329  (Alaska  2006)  (emphasis added) (quoting  State  v.  ONeill
Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980)).

     43     See Matanuska Maid, Inc. v. State, 620 P.2d 182,  186
(Alaska   1980)  (holding  that  regulated  in  the  context   of
subsection  .481(a)(1)  is  clearly distinct  from  and  involves
something  more than mere prohibition and that a more  reasonable
construction  is  that subsection .481(a)(1)  exempts  only  such
conduct as is subject to ongoing, careful regulation).

     44     Although  Routh Crabtree argues that  Civil  Rule  55
already  prohibits parties from seeking default judgment  without
notifying   opposing   counsel,  that  rule   creates   different
procedures depending on whether the non-moving party (or  his  or
her  attorney) appears.  Civil Rule 55(c)(1) states that [i]f the
party against whom default judgment is sought has appeared in the
action,  that  party  (or, if appearing  by  representative,  the
partys representative) shall be served with written notice of the
application for judgment at least three days prior to a  decision
on  the application. (Emphasis added.)  If neither Pepper nor her
attorney  appeared  before  Routh Crabtree  applied  for  default
judgment,  then  its failure to provide notice to Peppers  lawyer
did not necessarily contravene Civil Rule 55.

          A  close reading of Civil Rule 11 and Conduct Rule  3.3
suggests  Routh  Crabtree  would similarly  escape  reproach  for
making misrepresentations to the court if it established that  it
performed reasonable inquiry into Peppers competency and did  not
know that she was incompetent when it made its statements.  Under
Civil  Rule 11, an attorneys signature on a pleading, motion,  or
other  paper certifies only that the attorney has read the  paper
and  that,  to best of the attorneys knowledge, information,  and
belief formed after reasonable inquiry, the pleading, motion,  or
other  paper  is  well grounded in fact.  Conduct Rule  3.3(a)(1)
similarly  states only that a lawyer shall not knowingly  make  a
false statement of material fact or law to a tribunal.

     45     Short v. Demopolis, 691 P.2d 163, 163-64 (Wash. 1984)
(en banc).

     46    Id. at 169-70.

     47     Id.  at  170  (citing Heslin v. Conn. Law  Clinic  of
Trantolo & Trantolo, 461 A.2d 938 (Conn. 1983)).

     48    Heintz v. Jenkins, 514 U.S. 291, 299 (1995).

     49     Caudle v. Mendel, 994 P.2d 372, 375-76 (Alaska  1999)
(citing Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988)).

     50    See, e.g., Heintz, 514 U.S. at 293 (allowing plaintiffs
separate FDCPA action to proceed before termination of banks suit
to recover balance due on plaintiffs car loan).

     51     In rejecting these arguments here, we do not mean  to
foreclose  the  possibility that future litigants  might  address
these issues more persuasively on appeal.

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