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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. ASRC Energy Services Power and Communications, LLC v. Golden Valley Electric Association, Inc. (11/4/2011) sp-6617

ASRC Energy Services Power and Communications, LLC v. Golden Valley Electric Association, Inc. (11/4/2011) sp-6617

        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, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

ASRC ENERGY SERVICES POWER ) 
AND COMMUNICATIONS, LLC                         )       Supreme Court No. S-12630 
(f/k/a GLOBAL POWER &                           ) 
COMMUNICATIONS, LLC) and                        )       Superior Court Nos. 4FA-03-02333 CI 
GLOBAL POWER/CITY ELECTRIC                      )      and 4FA-03-02334 CI (Consolidated) 
JOINT VENTURE, LLC,                             ) 
                                                ) 
                        Appellants,             ) 
                                                ) 
        v.                                      )      O P I N I O N 
                                                ) 
GOLDEN VALLEY ELECTRIC                          )      No. 6617 - November 4, 2011 
ASSOCIATION, INC.,                              ) 
                                                ) 
                        Appellee.               ) 
                                                ) 
                                                ) 
GOLDEN VALLEY ELECTRIC                          )       Supreme Court No. S-12989 
ASSOCIATION, INC.,                              ) 
                                                ) 
                        Appellant,              ) 
                                                ) 
        v.                                      ) 
                                                ) 
ASRC ENERGY SERVICES POWER )
 
AND COMMUNICATIONS, LLC                         )
 
(f/k/a GLOBAL POWER &                           )
 
COMMUNICATIONS, LLC) and                        )
 
GLOBAL POWER/CITY ELECTRIC                       )
 
JOINT VENTURE, LLC,                             )
 
                                                )
 
                        Appellees.              )
 
                                                )
 

----------------------- Page 2-----------------------

                Appeal   from      the  Superior    Court   of   the  State  of   Alaska, 
                Fourth   Judicial   District,   Fairbanks,   Donald   D.   Hopwood, 
                Judge pro tem. 

                Appearances:   Charles   E. Cole,   Law   Offices   of   Charles   E. 
                Cole,   Fairbanks,   for   Appellants/Appellees   ASRC   Energy 
                Services   Power   and   Communications,   LLC   (f/k/a   Global 
                Power   &   Communications,   LLC)   and   Global   Power/City 
                Electric    Joint   Venture,     LLC.     Cory     R.   Borgeson     and 
                Nikole V. Schick, Borgeson   &   Burns, PC, Fairbanks, and 
                Joseph       W.     Evans,      Bremerton,        Washington,         for 
                Appellant/Appellee Golden Valley Electric Association, Inc. 

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

                PER CURIAM. 

I.      INTRODUCTION 

                When      the  legislature   enacted    the  Alaska    Unfair    Trade   Practices    and 

                                         1 
Consumer Protection Act (UTPA)  in 1970, it declared unlawful "unfair or deceptive acts 
or practices in the conduct of trade or commerce."2            Through a 1974 amendment to the 

UTPA,   the   legislature   directed   Alaska   courts   to   give   "due   consideration   and   great 

weight"     to  Federal    Trade   Commission       (FTC)    and   federal   court  interpretations    of 

                                                                                                        3 
15 U.S.C.  45(a)(1), a subsection of the Federal Trade Commission Act (FTC Act). 

The 1974 legislature specifically directed Alaska courts to adhere to these interpretations 

        1       AS 45.50.471-.561. 

        2       AS 45.50.471(a). 

        3       AS 45.50.545. 

                                                   -2-                                               6617 

----------------------- Page 3-----------------------

to provide uniformity in unfair trade laws.4   In a seminal 1980 decision, State v. O'Neill 

Investigations, Inc., we rejected a void-for-vagueness challenge to the prohibition against 

"unfair or deceptive acts or practices in the conduct of trade or commerce," reasoning 

that the language of the Alaska UTPA had a "fixed meaning" derived from "agency and 
judicial interpretation of the identical words of the federal statute."5 We then adopted the 

contemporaneous agency and federal court standards for "unfair or deceptive acts or 
practices."6 

               For over 30 years, we have consistently defined "unfair or deceptive acts 
or practices" in line with O'Neill Investigations.7   During that time, however, the FTC 

and some federal courts have modified their definitions of unfairness and deception.  The 
FTC adopted a modified definition of unfair practices in 1980,8  which was codified by 

Congress in a separate subsection of the FTC Act in 1994.9        And an FTC adjudication 

in 1984, In re Cliffdale Associates, Inc., provided a modified definition of deception.10 

               The primary issue in this case is whether the Alaska legislature's directive 

that courts should give "due consideration and great weight" to the FTC and federal court 

       4       See  1974 House Journal 122-24; ch. 53,  8, SLA 1974.
 

       5       609 P.2d 520, 532 (Alaska 1980).
 

       6      Id. at 534-35.
 

       7       See Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1255-57 (Alaska
 

2007); Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 131-32 (Alaska 2000); State v. 
Grogan, 628 P.2d 570, 571-72 (Alaska 1981). 

       8       Letter from FTC to Senators Ford and Danforth (Dec. 17, 1980), reprinted 

in H.R. Rep. No. 98-156, pt. 1, at 33-40, 36 (1983). 

       9       See  15 U.S.C.  45(n). 

       10      103 F.T.C. 110 (1984). 

                                             -3-                                        6617
 

----------------------- Page 4-----------------------

interpretations of 15 U.S.C.  45(a)(1) requires us to overrule our previous line of cases. 

We hold that it does not, and that the trial court did not err in evaluating UTPA claims 

and formulating a jury instruction according to our precedent and previously articulated 

standards   for   deception   and   unfairness.   But   for   other   reasons   explained   below,   we 

vacate in part the judgment in this case and remand for further proceedings. 

II.      FACTS AND PROCEEDINGS 

        A.       Facts 

                This litigation arises from the award by Golden Valley Electric Association 

(GVEA) of two competitively bid construction contracts on its Northern Intertie Project. 
In November 2001 GVEA awarded Global Power & Communications, LLC (Global)11 

an approximately $39.4 million contract (ContractNI-8) for construction of the Northern 

Intertie's Tanana River flats section.       Later GVEA awarded Global an approximately 

$5.3 million contract (Contract NI-9) for construction of the Northern Intertie's Tanana 

River crossing and Fairbanks sections. 

                Subsequently,   after   Global   had   been   awarded   NI-9   and   before   it   had 

completed      work    on   NI-8,   Global   presented    GVEA      with   requests   for  additional 

compensation   (RFIs)   totaling   approximately   $2.4   million   in   connection   with   NI-8. 

GVEA responded that it found "no legitimate basis in the construction documents" to 

justify Global's RFIs and was "rejecting Global's request for additional payment." 

                Several months later, Global requested a meeting with GVEA to discuss the 

merits of the rejected RFIs.  Global also notified GVEA that Global would submit more 

        11      Global has since changed its name to ASRC Energy Services Power and 

Communications, LLC, and the case caption has been changed to reflect that fact.  To be 
consistent with references to the parties in the trial court record, we continue to refer to 
ASRC as Global. 

                                                  -4-                                           6617
 

----------------------- Page 5-----------------------

RFIs, arising out of both NI-8 and NI-9. Global submitted additional RFIs to GVEA that 

month, including additional claims of approximately $2.3 million in connection with 
NI-8 and claims of approximately $765,00012 in connection with NI-9.                 Through these 

RFIs, Global sought additional compensation totaling approximately $5.7 million under 

the two contracts.   Global primarily alleged that it had incurred lost profits and expenses 

due   to   GVEA's   inability   to   timely   provide   permits,   materials,   and   instructions   as 

required by the contracts.       Global also alleged that GVEA requested extra work for 

which Global was entitled to compensation. 

                GVEA responded to Global denying most of the RFIs but indicated that it 

would approve a few and consider partial payment for a few others. 

        B.      Proceedings 

                1.      Pre-trial proceedings 

                Global filed two complaints against GVEA in October 2003, asserting in 

the first that GVEA owed Global "in excess of $50,000" in connection with NI-8 and in 

the second that GVEA owed Global "in excess of $50,000" in connection with NI-9. 

GVEA answered each complaint and the two actions were consolidated. 

                In December 2004 GVEA conveyed what it considered an Alaska Civil 

Rule 68 offer of judgment to Global, "offer[ing] to allow entry of Judgment in favor of 

[Global] for Seven Hundred and Fifty Thousand Dollars ($750,000.00) . . . contingent 

on the [consolidated lawsuits] being dismissed with prejudice."             Global did not accept 

this offer. 

                Global then filed an amended complaint alleging new causes   of action 

regarding NI-8, including misrepresentation, failure to disclose, and a claim under the 

        12      Although the parties assert a larger figure in their briefs, it does not appear 

to be supported by the record. 

                                                 -5-                                              6617 

----------------------- Page 6-----------------------

UTPA.13    Specifically, Global alleged that GVEA had concealed and misrepresented the 

existence of technical data about subsurface conditions along the project route. 

                GVEA moved for judgment on the pleadings on Global's UTPA claim. 

GVEA   argued   that   the   UTPA   did   not   apply   to   the   contractual   relationship   between 

GVEA   and   Global   despite   its   application   to   a   commercial   dispute   in Western   Star 
Trucks, Inc. v. Big Iron Equipment Service, Inc.14          GVEA argued that the construction 

contracts   "were   complex,      private,   arm's-length   business   transactions   between   two 

sophisticated   business   entities"   and   that   the   "contracts   did   not   implicate   consumer 

protection concerns." Global countered that Western Starrequired the denial of GVEA's 

motion for judgment on the pleadings.            The trial court agreed with Global and denied 

GVEA's motion after oral argument. 

                In early 2006 Global reformulated its claims using a different calculation 

methodology, reducing the total amount of its claims from approximately $5.7 million 

to approximately $3.2 million.        It apparently did so after consulting a damages expert 

who found the original methodology "probably not as accurate as it should be." 

                GVEA amended its answer to Global's amended complaint, asserting new 

counterclaims against Global for misrepresentation and alleging that Global had falsified 

documents, including reports, employee time sheets, and RFIs. 

                GVEA later amended its counterclaims, asserting that Global had violated 

the UTPA by presenting falsified RFIs. GVEA alleged that it suffered damages from 

relying on false or misleading statements in Global's RFIs. 

        13      AS 45.50.471-.561. 

        14      101 P.3d 1047, 1053-54 (Alaska 2004) (concluding that the UTPA protects 

both consumers and businesses). 

                                                  -6-                                              6617 

----------------------- Page 7-----------------------

                The parties filed trial briefs in April 2006. Global argued that GVEA could 

not prove damages for its UTPA claim because it had rejected and not paid Global's 

RFIs, excepting the few GVEA admitted it owed.  GVEA maintained that the UTPA did 

not apply to the two contracts, but argued alternatively that under the trial court's earlier 

ruling   it   was   entitled   to   pursue   its   UTPA   claim   against   Global   because   GVEA   had 

incurred expenses investigating and defending against Global's claims in the RFIs. 

                On   the   day   of   the   final   pretrial   conference,   Global   filed   a   trial   brief 

supplement   regarding   standards   for   UTPA   claims.            Global   argued   that   the   UTPA 

requires courts to give "due consideration and great weight" to interpretations of similar 

provisions of the Federal Trade Commission Act, and that both the FTC and federal 

circuit courts of appeals had modified the standards for an unfair or deceptive trade 
practice since our seminal holding in State v. O'Neill Investigations.15              Global indicated 

it would submit revised proposed jury instructions in accordance with current federal 

standards. 

                2.       Trial proceedings 

                A few days into trial GVEA responded to Global's trial brief supplement. 
GVEA argued that Odom v. Fairbanks Memorial Hospital16 provided the standards for 

an unfair or deceptive trade practice under the UTPA. 

                This   issue   continued   to   arise   during   trial. Shortly   before   the   close   of 

Global's     case,   and   after  the   court   and   counsel    discussed    relevant    mid-trial   jury 

instructions for the UTPA claims, the court stated that it would hold the issue of the 

standards for an unfair or deceptive trade practice open for final jury instructions. 

        15      609 P.2d 520, 532-34 (Alaska 1980) (establishing unfair or deceptive trade 

practices standards). 

        16      999     P.2d    123,   132   (Alaska     2000)    (citing   and   relying    on  O'Neill 

Investigations, 609 P.2d at 534-35, for unfair or deceptive trade practices standards). 

                                                   -7-                                                6617 

----------------------- Page 8-----------------------

                At the conclusion of GVEA's case, Global moved for a directed verdict on 

GVEA's UTPA claim, arguing that it cannot be an unfair trade practice to withdraw a 

previously submitted claim in the course of litigation.   The trial court denied the motion. 

After its rebuttal case, Global again moved for a directed verdict on GVEA's UTPA 

claim based on the current definitions of unfairness and deception.  The trial court again 

denied the motion. 

                The    trial   court's  final  instruction  on   the  parties'  UTPA     claims,   Jury 

Instruction 28, contained the existing Alaska standards for an unfair or deceptive trade 

practice,   as   requested   by   GVEA,   and   not   the   standards   based   on   current   FTC   Act 

interpretations, as requested by Global.        The jury returned three special verdicts. 

                With respect to Global's claims under NI-8, the jury found GVEA had 

neither breached any contractual or common law obligations to Global nor engaged in 

any unfair trade practices. 

                With respect to Global's claims under NI-9, the jury found GVEA had 

breached its contractual obligations to Global but had not breached its implied promise 

of good faith and fair dealing or its duty to cooperate.            The jury also found GVEA's 

actions were not the legal cause of any damages to Global. 

                With respect to GVEA's counterclaims under both NI-8 and NI-9, the jury 

found Global had:      (1) breached its contractual obligations to GVEA; (2) breached the 

implied promise of good faith and fair dealing; (3) engaged in misrepresentations; and 

(4) engaged in unfair trade practices.   The jury then found Global was the legal cause of 

damages to GVEA, found GVEA had proved its damages with reasonable certainty and 

particularity, and awarded GVEA damages of $98,386.                  The jury attributed the entire 

$98,386 award to Global's unfair trade practices.  The special verdict form did not allow 

the jury to state whether Global's misrepresentations and breach of contract might have 

concurrently caused those damages. 

                                                  -8-                                            6617
 

----------------------- Page 9-----------------------

                The   trial   court   ordered   that   GVEA's   damages   "be   trebled   in   the   final 
judgment according to AS 45.50.531(a)," 17 declared   GVEA the prevailing party for 

purposes of awarding costs and attorney's fees, and entered final judgment. 

                3.       Post-judgment proceedings 

                         a.      Global's motions 

                Global moved for judgment notwithstanding the verdict or, alternatively, 

for a new trial on GVEA's UTPA claim.  Global first argued that the trial court erred in 

not granting a directed verdict on the UTPA claim at the close of GVEA's case because 

no reasonable juror could have concluded: (1) that Global's withdrawal of claims during 

the litigation was an unfair trade practice; (2) that Global's withdrawal of claims during 

the   litigation   was   an   act   "in   the   conduct   of   trade   or   commerce"; or   (3)   that   GVEA 

suffered damages from Global's withdrawal of claims during the litigation.  Global next 

reiterated its arguments about Jury Instruction 28, contending that the court failed to give 

"due   consideration   and   great   weight"   to   current   interpretations   of   "unfairness"   and 

"deception" promulgated by the FTC and federal courts, and that the court erred by using 

the Odom standards.  The trial court ruled that Jury Instruction 28 conformed to Alaska 

law and that substantial evidence supported the jury's verdict that Global had engaged 

        17      AS 45.50.531(a) provides: 

                A   person   who   suffers   an   ascertainable   loss   of   money   or 
                property     as  a  result   of  another   person's    act  or  practice 
                declared unlawful by AS 45.50.471 may bring a civil action 
                to recover for each unlawful act or practice three times the 
                actual damages or $500, whichever is greater. The court may 
                provide     other    relief  it  considers   necessary     and   proper. 
                Nothing in this subsection prevents a person who brings an 
                action under this subsection from pursuing other remedies 
                available under other law, including common law. 

                                                   -9-                                             6617
 

----------------------- Page 10-----------------------

in    unfair   trade   practices;    it  therefore   denied    Global's     motions    for   judgment 

notwithstanding the verdict and for a new trial on GVEA's UTPA claim. 

                Global also moved for a new trial on damages for GVEA's breach of NI-9. 

Global argued that after finding GVEA had breached NI-9, no reasonable juror could 

have concluded GVEA was not the legal cause of at least some damages.  The trial court 

ruled that "[s]ubstantial evidence supports the jury's conclusion that GVEA's breach of 

contract was not the legal cause of any damages to Global" and denied the motion for a 

new trial on damages. 

                        b.      GVEA's motion 

                GVEA moved for an award of full reasonable attorney's fees totaling over 
$1 million for the entire litigation, citing the UTPA.18        GVEA later moved for additional 

attorney's fees incurred in responding to Global's post-trial motions. 

                The   trial   court   ordered   GVEA   to   amend   its   attorney's   fees   motion   to 

segregate time devoted to the prosecution of its UTPA claim because GVEA was entitled 

to full attorney's fees for that claim but not for prosecuting its other counterclaims or 

defending against Global's claims.         The court noted that segregation of attorney's fees 

by claim is not always required when the "claims are . . . interrelated or . . . have a 

common core of facts," but further observed that GVEA had prosecuted its UTPA claim 

for less than three months.        The court believed segregation, or at least estimation, of 

UTPA-related attorney's fees should be feasible. The court ordered the parties to address 

        18      AS 45.50.537(a) provides: 

                In    an    action    brought     by    a   private    person     under 
                AS    45.50.471-45.50.561,        a  prevailing    plaintiff  shall  be 
                awarded costs as provided by court rule and full reasonable 
                attorney fees at the prevailing reasonable rate. 

                                                 -10-                                            6617
 

----------------------- Page 11-----------------------

how the UTPA full attorney's fees provision might act in concert with Rules 68 or 82 

when calculating the final fee award. 

                GVEA amended its motion for an award of attorney's fees to approximately 

$660,000.      GVEA calculated its actual attorney's fees after it filed the UTPA claim 

(approximately   $515,000)   and   divided   that   amount   equally   among   its   four   separate 

counterclaims,   requesting       that   25%   (approximately      $129,000)     be  attributed   to  the 

prosecution of the UTPA claim.           Then, invoking Rule 68, GVEA requested 50% of its 

remaining actual attorney's fees (approximately $530,500). 

                Global argued that GVEA's December 2004 offer was not a valid Rule 68 

offer of judgment because it called for a dismissal of the action rather than an entry of 

judgment against GVEA.   Global also argued that GVEA's allocation of attorney's fees 

for its UTPA claim failed to comply with the court's order and was arbitrary. 

                The trial court found GVEA's allocation "fair and reasonable," noting that 

a reasonable person might believe GVEA spent more than 25% of its time on the UTPA 

counterclaim       because    of  the   high   stakes   involved.     The    court   awarded     GVEA 

approximately $128,000 under the UTPA and approximately $471,000 under Rule 68, 

for a total of approximately $599,000. 

                4.      Issues on appeal 

                Global appeals, arguing:        (1) that its conduct was insufficient to support 

liability   under   the   UTPA,   and   its   motions   for   a   directed   verdict   and   for   judgment 

notwithstanding the verdict should have been granted; (2) that it was reversible error to 

give Jury Instruction 28; (3) that the trial court should have granted Global a new trial 

upon   the   jury's   finding   that   GVEA   breached   NI-9   but   was   not   the   legal   cause   of 

damages; (4) that GVEA's December 2004 offer did not comply with Rule 68 and cannot 

be used to enhance GVEA's attorney's fees award; (5) that GVEA's attorney's fees for 

                                                  -11-                                            6617
 

----------------------- Page 12-----------------------

prosecution of its UTPA counterclaim were not properly segregated; and (6) that the trial 

court erred by awarding post-judgment attorney's fees. 

                GVEA   cross-appeals,   arguing   that   it   is   entitled   to   an   award   of   its   full 

reasonable attorney's fees from the date of its UTPA claim. 

III.	   DISCUSSION 

        A.	     The Superior Court Did Not Err By Relying On Our Precedent And 
                Standards For "Unfair Or Deceptive" Practices Under The UTPA. 

                1.	     Standard of review 

                Issues of statutory interpretation and application present questions of law 
to which we apply our independent judgment.19              We have explained that this standard 

requires us to "look to the meaning of the language, the legislative history, and the 

purpose   of   the   statute   and   adopt   the   rule   of   law   that   is   most   persuasive   in   light   of 
precedent, reason, and policy."20      "We will overturn one of our prior decisions only when 

we are 'clearly convinced that the rule was originally erroneous or is no longer sound 

because   of   changed   conditions,   and   that   more   good   than   harm   would   result   from   a 
departure from precedent.' "21 

                2.	     Overview and development of relevant law 

                Global's appeal from the adverse judgment on GVEA's UTPA claim raises 

three discrete but interrelated questions of law.  The first, a threshold issue, is whether 

AS   45.50.545   requires   that   we   modify   our   standards   for   unfair   or   deceptive   trade 

        19      Mat-Su Valley Med. Ctr., LLC v. Advanced Pain Ctrs. of Alaska, Inc., 218 

P.3d 698, 700 (Alaska 2009) (citing State v. Jeffery, 170 P.3d 226, 229 (Alaska 2007)). 

        20      Id. at 700-01 (quoting Enders v. Parker, 66 P.3d 11, 13-14 (Alaska 2003)). 

        21      State v. Carlin, 249 P.3d 752, 756 (Alaska 2011) (citing and quoting Pratt 

& Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175-76 (Alaska 1993)). 

                                                  -12-	                                           6617
 

----------------------- Page 13-----------------------

practices    set   out   in O'Neill   Investigations,   and    the  cases   following    it,   in  light   of 

subsequent changes in FTC and federal court definitions of unfairness and deception. 
                Our starting point is the Alaska legislature's 1970 enactment of the UTPA.22 

Alaska Statute 45.50.471(a) declares unlawful "unfair or deceptive acts or practices in 

the conduct of trade or commerce." Alaska Statute 45.50.471(b) sets out specific actions 

included     within    the  meaning     of  "unfair   or  deceptive    acts   or  practices."    Alaska 

Statute 45.50.471(c) provides that the specific actions set out in .471(b) "are in addition 

to and do not limit the types of unlawful acts and practices actionable at common law or 

under other state statutes." 

                Of great import to this case is AS 45.50.545, which mandates that "[i]n 

interpreting   AS   45.50.471   due   consideration   and   great   weight   should   be   given   the 

interpretations of 15 U.S.C.  45(a)(1) ( 5(a)(1) of the   Federal Trade Commission 
Act)."23   The legislature added this provision to the UTPA in 1974 at the request of 

Governor Egan, whose transmittal letter stated that his proposed amendment would: 

                [C]onform [the UTPA] to the language of the Federal Trade 
                Commission Act . . . enable the Attorney General and the 
                courts of the state to utilize the body of law created by the 
                Federal Trade Commission . . . . [and provide] the consumer 
                and   the   businessman   .   .   .   with   uniformity   in   unfair   trade 
                laws.[24] 

        22      Ch. 246,  2, SLA 1970. 

        23      When AS 45.50.545 was passed in 1974, 15 U.S.C.  45(a)(1) provided, 

in relevant part:     "[U]nfair or deceptive acts or practices in commerce[] are declared 
unlawful."     Today, and at the commencement of this litigation, 15 U.S.C.  45(a)(1) 
provides:  "[U]nfair or deceptive acts or practices in or affecting commerce[] are hereby 
declared unlawful." 

        24       1974 House Journal 122; see also ch. 53,  8, SLA 1974. 

                                                  -13-                                             6617
 

----------------------- Page 14-----------------------

                 We     first  considered     the   relationship     between     AS    45.50.471(a)      and 

15 U.S.C.  45(a)(1) in O'Neill Investigations.             In that case the State filed a complaint 
against a debt collector.25      The trial court granted the debt collector's motion to dismiss 

because "without interpretative regulations, [the UTPA] was unconstitutionally vague."26 

On appeal, we held that the UTPA was not impermissibly vague,27 specifically noting: 

                 Since the [UTPA] directs that this section be interpreted by 
                 giving "great weight" and "due consideration" to the [FTC] 
                 and   federal   court   interpretations   of   the   analogous   federal 
                 statute, the words have a fixed meaning which has survived 
                 challenges for vagueness.        It is axiomatic that words will be 
                 infused with the meaning of prior judicial construction.  The 
                 relevant   prior   judicial   construction   here   is   that   which   has 
                 emerged      from    agency     and   judicial   interpretation    of   the 
                 identical words of the federal statute.[28] 

We   therefore   determined   that   "[a]ny   defects   in   the   constitutional   sufficiency   of   the 

warning      provided     by   the  [UTPA      are]  thus   cured    by   authoritative    administrative 
interpretations which clarify obscurities or resolve ambiguities."29 

                 We next established standards for unfair or deceptive acts under the UTPA. 

"Two elements must be proved to establish a prima facie case of unfair or deceptive acts 

or practices under the [UTPA]:   (1) that the defendant is engaged in trade or commerce; 

and    (2)  that   in  the  conduct    of   trade  or   commerce,      an  unfair   act  or   practice   has 

        25       State v. O'Neill Investigations, 609 P.2d 520, 524 (Alaska 1980). 

        26       Id. at 525. 

        27       Id. at 532-34. 

        28       Id. at 532 (footnotes omitted). 

        29       Id. at 534 (citing Parker v. Levy, 417 U.S. 733, 752-56 (1974)). 

                                                    -14-                                              6617
 

----------------------- Page 15-----------------------

occurred."30    Relying on contemporaneous FTC and federal court interpretations of the 

identical language of the FTC Act, we explained that "[a]n act or practice is deceptive 
or unfair if it has the capacity or tendency to deceive"31 and that neither actual injury32 

nor intent to deceive is required.33    Relying on these same sources, we defined unfairness 

by reference to the United States Supreme Court case of FTC v. Sperry & Hutchinson 

Co. (hereinafter the Sperry standard), which considered: 

                (1)   whether   the   practice,   without   necessarily   having   been 
                previously considered unlawful, offends public policy as it 
                has   been    established    by  statutes,   the  common      law,   or 
                otherwise whether, in other words, it is within at least the 
                penumbra       of   some    common-law,        statutory,   or   other 
                established concept of unfairness; (2) whether it is immoral, 
                unethical, oppressive, or unscrupulous; (3) whether it causes 
                substantial    injury  to  consumers     (or  competitors     or  other 
                businessmen).[34] 

Thus we expressly based our standards for unfairness and deception on federal agency 
and judicial authorities interpreting 15 U.S.C.  45(a)(1).35 

                A    survey    of  our   subsequent     UTPA     cases    confirms    that  we    have 

consistently,    for  the   past  30  years,   used   the O'Neill    Investigations   standards     for 

        30      Id. at 534.
 

        31      Id. (citing FTC v. Raladam Co., 316 U.S. 149, 152 (1942)). 
 

        32      Id. at 534-35 (citing Floersheim v. FTC, 411 F.2d 874, 878 (9th Cir. 1969)).
 

        33      Id. at 535 (citing Warner Lambert Co. v. FTC, 562 F.2d 749, 763 (D.C. Cir. 

1977) and Montgomery Ward & Co. v. FTC, 379 F.2d 666, 672 (7th Cir. 1967)). 

        34      Id. at 535 (quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n.5 

(1972)). 

        35      See id. at 534-35; Sperry & Hutchinson, 405 U.S. at 244 n.5. 

                                                 -15-                                           6617
 

----------------------- Page 16-----------------------

unfairness and deception.36        But, as Global points out, the FTC, and subsequently many 

federal   courts,   have   used   modified   standards   for   unfairness   and   deception   since   we 

decided O'Neill Investigations in 1980. 

                 First,   the   FTC    issued    a  policy   statement     in  1980,    noting    that  "the 

Commission has continued to refine the standard of unfairness in its cases and rules, and 

it has now reached a more detailed sense of both the definition and the limits of these 
criteria."37  The policy statement went on to provide the refined standards for unfairness: 

"To   justify   a   finding   of   unfairness   the   injury   must   satisfy   three   tests. It   must   be 

substantial; it must not be outweighed by any countervailing benefits to consumers or 

competition       that  the  practice    produces;     and   it  must  be   an   injury   that  consumers 
themselves could not reasonably have avoided."38 

                 In 1994 Congress codified this language in a new provision to the FTC Act, 

which states: 

                 The [FTC] shall have no authority . . . to declare unlawful an 
                 act   or   practice   on   the   grounds   that   such   act   or   practice   is 
                 unfair unless the act or practice causes or is likely to cause 
                 substantial     injury   to  consumers      which    is  not  reasonably 

        36       See  Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1255-57 (Alaska 

2007) (relying on O'Neill Investigations in discussing standards for an unfair practice 
and concluding evidence was sufficient to uphold UTPA claim); Odom v. Fairbanks 
Mem'l Hosp., 999 P.2d 123, 131-32 (Alaska 2000) (quoting standards articulated in 
O'Neill Investigations and holding superior court erred in dismissing UTPA claim); State 
v. Grogan, 628 P.2d 570, 571-72 (Alaska 1981) (reiterating standards stated in O'Neill 
Investigations and holding that vandalizing customer's property is an unfair trade act). 

        37       Letter from FTC to Senators Ford and Danforth (Dec. 17, 1980), reprinted 

in H.R. Rep. No. 98-156, pt. 1, at 33-40, 36 (1983) (footnote omitted). 

        38       Id. 

                                                    -16-                                              6617
 

----------------------- Page 17-----------------------

               avoidable by consumers themselves and not outweighed by 
               countervailing benefits to consumers or to competition.[39] 

Following codification of this new subsection, federal courts have followed this new 

statutorily imposed limitation on what constitutes an unfair act or practice under the FTC 
Act.40 

               Regarding     the  standard   for  deceptive  practices,  we   held  in O'Neill 

Investigations  that "[a]n act or practice is deceptive or unfair if it has the capacity or 

tendency to deceive" where neither actual injury as a result of the deception nor intent 
to deceive were required.41    Post-O'Neill Investigations, in the 1984 Cliffdale decision, 

the FTC announced a modified standard for a deceptive act or practice: "[F]irst, there is 

a representation, omission, or practice that, second, is likely to mislead consumers acting 

reasonably under the circumstances, and third, the representation, omission, or practice 
is material."42 

               We must now determine whether these new federal standards require us to 

overrule our precedent. 

       39      FTCA Amendments of 1994, Pub. L. No. 103-312,  9, 108 stat. 1691, 

1695 (codified at 15 U.S.C.  45(n)). 

       40      See, e.g., FTC v. Neovi, Inc., 604 F.3d 1150, 1153 (9th Cir. 2010) (citing 

 45(n) and defining "the [k]ey issue on appeal" as "whether [defendant] is liable for 
causing substantial injury to consumers that is not reasonably avoidable or outweighed 
by countervailing benefits"); FTC v. Accusearch Inc., 570 F.3d 1187, 1193-94 (10th Cir. 
2009) (looking to  45(n) as "setting out elements of an unfair practice"). 

       41      O'Neill Investigations, 609 P.2d at 534-35 (citingFTC v. Raladam Co., 316 

U.S. 149, 152 (1942)); see also Kenai Chrysler, 167 P.3d at 1255 (same). 

       42      In re Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984). 

                                             -17-                                         6617
 

----------------------- Page 18-----------------------

                 3.	     Applicable standards for a deceptive or unfair trade practice in 
                         this case 

                 Global argues that the trial court erred by denying its motions for a directed 

verdict     and    for   a  judgment      notwithstanding        the   verdict   and    by    giving    Jury 
Instruction 28.43     Global contends the court erred by not giving due consideration and 

great weight to current FTC interpretations of the FTC Act as required by AS 45.50.545 

and our precedent - particularly O'Neill Investigations and Western Star.  GVEA urges 

us to reject Global's argument for three reasons:  (1) Global waived this issue by failing 

to object to the jury instruction; (2) the instruction conformed to existing Alaska law; and 

(3) any error in giving the instruction was harmless.  GVEA offers no direct response to 

        43       The     trial  court's    instruction     on   the   parties'    UTPA       claims,    Jury 

Instruction 28, read as follows: 

                 In order to prevail, a claimant must prove it is more likely 
                 true than not true that: 

                 1.	     The   party   engaged   in   an   unfair   or   deceptive   act   or 
                         practice; 

                 2.	     The act or practice must have occurred in the conduct 
                         of trade or commerce; and 

                 3.	     The other party suffered ascertainable loss of money 
                         or property as a result. 

                         An act or practice is deceptive if it can be interpreted 
                 in a misleading way.        The claimant is not required to prove 
                 that the other party intended to deceive anyone. 

                         An   act   or   practice   is   unfair   if   it   1)   offends   public 
                 policy; 2) is immoral, unethical, oppressive, or unscrupulous; 
                 or 3) causes substantial injury in the form of monetary harm 
                 or unwarranted health and safety risks. 

(Emphasis in original.) 

                                                    -18-	                                             6617
 

----------------------- Page 19-----------------------

Global's argument that the trial court erred in denying its motions for directed verdict 

and for a judgment notwithstanding the verdict. 

                      a.     Waiver regarding jury instruction 

               Alaska Civil Rule 51(a) provides that "[n]o party may assign as error the 

giving or the failure to give an instruction unless the party objects thereto before the jury 

retires to consider its verdict, stating distinctly the matter to which the party objects and 
the grounds of the objection."44   We have previously concluded that Rule 51(a) requires 

only that a party "ma[k]e the superior court aware of the alleged error."45  But the reason 

for appealing   an   instruction cannot be "entirely different" from the objection raised 
before the trial court.46 

               In its trial brief supplement, Global argued that the court should use current 

FTC Act standards for deciding UTPA claims.           Global objected to the mid-trial UTPA 

instruction, specifically referencing the current FTC Act standards and noting the court's 

obligation    to  give  due  consideration   and   great  weight  to  FTC   and   federal  court 

interpretations of the FTC Act.   Global renewed its position when arguing for a directed 

verdict.  This conduct is sufficient to satisfy Rule 51(a), even if Global did not again 

formally object just before final instructions were given to the jury.   We therefore reject 

GVEA's waiver argument and turn to the merits of Golden's argument that the superior 

court should have adopted current FTC Act standards for the UTPA claims. 

       44      Alaska R. Civ. P. 51(a). 

       45      Loof v. Sanders, 686 P.2d 1205, 1209 n.7 (Alaska 1984) (citingAlaska Int'l 

Indus. v. Musarra, 602 P.2d   1240,   1243 & nn.1-2 (Alaska 1979)); see also Jaso v. 
McCarthy, 923 P.2d 795, 800 (Alaska 1996) ("The dictates of [Rule 51(a)] are satisfied 
only if the judge is clearly made aware of the alleged error in . . . the instructions."). 

       46      Van Huff v. Sohio Alaska Petroleum Co., 835 P.2d 1181, 1187 (Alaska 

1992) (declining to consider objection because it differed from that stated at trial). 

                                             -19-                                         6617
 

----------------------- Page 20-----------------------

                         b.      Global's motions and Jury Instruction 28 

                 The   trial   court   conformed   to   our   precedent   and   standards   for   unfair   or 

deceptive      trade  practices    in  evaluating    Global's    motions    for  directed   verdict   and 

judgment notwithstanding the verdict and in formulating Jury Instruction 28. We decline 

to abandon our prior case law: We do not adopt the FTC's 1980 policy statement, now 

codified at 15 U.S.C.  45(n), as the standard for evaluating whether a practice may be 

deemed unfair under the Alaska UTPA.               We also decline to depart from our precedent 

regarding the definition of a deceptive practice. We thus conclude that the trial court did 

not err in evaluating Global's motions or formulating Jury Instruction 28 according to 

our prior definitions of deceptive or unfair trade practices. 

                We   expressly   stated   in   O'Neill   Investigations  that   the   UTPA   was   not 

unconstitutionally vague because under AS 45.50.545, an interpretive amendment added 

in 1974, the rather amorphous concepts could take meaning from FTC and federal court 

interpretations      of  identical   language     found    in  the   FTC    Act,   namely     15   U.S.C. 
 45(a)(1).47    We then set out the definitions for deception and unfairness gleaned from 

contemporaneous   FTC   and   federal   court   authorities,   and   we   have   been   consistently 

applying those standards for 30 years.  We conclude that, in adopting AS 45.50.545, the 

 1974 legislature did not intend that Alaska courts would be required to abandon Alaska 

precedent where later changes in the federal approach conflicted with Alaska law.  We 

now turn to our separate analysis of what constitutes "unfairness" and what constitutes 

"deceptive practice." 

                 Regarding unfairness, because the federal statute changed markedly after 

the addition of 15 U.S.C.  45(n) in 1994, FTC and federal court interpretations of the 

        47       O'Neill Investigations, 609 P.2d at 532-34;see also AS 45.50.545; Western 

Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1053 (Alaska 2004) 
(characterizing AS 45.50.545 as requiring reference to FTC Act interpretations). 

                                                   -20-                                               6617 

----------------------- Page 21-----------------------

FTC Act post-1994 are not authorities that the   1974   legislature identified as proper 

guidance for resolving the scope and meaning of unfairness under Alaska's UTPA. 

Moreover, 15 U.S.C. 45(n) appears to restrict the scope of unfair or deceptive conduct 

that is actionable under the FTC Act, and incorporating these restrictions into the Alaska 
UTPA would result in less protection for Alaska consumers and business people.48           In 

contrast, we have applied Alaska's UTPA broadly.49  We recently stated that a "variety 

of factors can be considered in determining the existence of an unfair practice"50 and 

indicated our approval of other jurisdictions' "focus on the unfairness of the disputed 

practice under the specific circumstances presented" and their "flexible, case-specific 
approaches."51  Therefore, to provide broad protection to consumers and business people 

in Alaska and to achieve the uniformity that was the goal of the 1974 legislature, we will 

adhere to our precedent standards for unfairness and deception until such time that the 

legislature   sees fit to incorporate the limitations of 15 U.S.C.  45(n) into Alaska's 

UTPA. 

       48     See  15 U.S.C.  45(n) (directing that the FTC "shall have no authority. . . 

to declare unlawful" acts and practices that do not meet the certain parameters); see also 
FTC v. IFC Credit Corp., 543 F. Supp. 2d 925, 934-35, 937 (N.D. Ill. 2008) (describing 
subsection (n) as "a precondition to the FTC's authority" and noting that "[f]or the first 
80 years of its existence, the [FTC Act] contained no comparable provision"). 

       49     See Minutes, Sen. Judiciary Comm. Hearing on C.S.H.B. 543, 8th Leg., 2d 

Sess. (April 16, 1974) (Comments of Norman Gorsuch, Attorney Gen.) (explaining that 
C.S.H.B. 543 would "broaden[] the definition of unfair trade practices to include 'little 
FTC' language") (emphasis added). 

       50     Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1255-56   (Alaska 

2007). 

       51     Id. at 1256. 

                                            -21-                                        6617
 

----------------------- Page 22-----------------------

               Our approach is informed by decisions of other states that have faced this 

issue.  Initially, we note that although the 1980 FTC policy statement that modified the 

definition of an unfair practice is now over 30 years   old, the majority of states still 

subscribe to the Sperry standard for unfairness used by the FTC and federal courts prior 
to 1980.52  We find especially informative those decisions interpreting a state UTPA-type 

statute that directs the court to give "due consideration," "weight," or "great weight" to 
FTC and federal court interpretations of the FTC Act.53 

               A   2009   decision   from   the   Montana   Supreme   Court   illustrates   courts' 

reasoning regarding the unfairness standard.  In Rohrer v. Knudson, the court examined 

whether a trial court's instruction defining "unfair practice" was a correct statement of 

        52     See generally NATIONAL CONSUMER LAW CENTER, UNFAIR & DECEPTIVE 

ACTS & PRACTICES,  4.3.1, at 249 (7th ed. 2008) ("Most state courts use what is known 
as the "S&H" standard of unfairness developed by the FTC . . . ."); Rohrer v. Knudson, 
203 P.3d 759, 763 (Mont. 2009) (explaining that "[m]ost states with consumer protection 
acts patterned after  5(a)(1) of the FTC Act interpret unfairness as described in the 
landmark United States Supreme Court case, FTC v. Sperry & Hutchinson Co."). 

        53     See, e.g., PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842   So. 2d 773, 777 

(Fla. 2003) (defining an unfair practice in terms of the Sperry standard whereFLA . STAT. 
ANN . 501.204(2) provides that "due consideration and great weight shall be given to the 
interpretations of the [FTC] and the federal courts relating to [the FTC Act]"); Balthazar 
v. Verizon Hawaii, Inc., 123 P.3d 194, 202 (Haw. 2005) (applying the Sperry unfairness 
standard where the relevant statute directs that "the courts and the office of consumer 
protection shall give due consideration to the rules, regulations, and decisions, of the 
[FTC] and the federal courts interpreting section 5(a)(1) of the [FTC Act]" (HAW . REV . 
STAT 480-2(B)); Rohrer v. Knudson, 203 P.3d 759, 763 (Mont. 2009) (discussed infra); 
Ames v. Oceanside Welding & Towing Co., 767 A.2d 677, 681 (R.I. 2001) (looking to 
the Sperry unfairness standard where the state act directs that "due consideration and 
great weight shall be given to the interpretations of the [FTC] and the federal courts" 
(R.I. GEN . LAWS  6-13.1-3)). 

                                               -22-                                           6617
 

----------------------- Page 23-----------------------

the law.54   Montana's statute states that "unfair or deceptive acts or practices in the 

conduct of any trade or commerce are unlawful," and the legislature has directed the 
courts to give "due consideration and weight" to interpretations of the FTC Act.55           The 

Rohrer court recognized that the "FTC announced a new unfairness definition in 1980, 
which was codified by Congress in 1994"56 but found that this was overcome by the 

widespread use of the Sperry standard.57      The Rohrer court held "as a matter of law that 

an unfair act or practice is one which offends established public policy and which is 

either   immoral,    unethical,   oppressive,   unscrupulous     or  substantially  injurious   to 
consumers."58 

               Turning to the standard for a deceptive practice, we conclude that our case 

law is not in conflict with federal authorities because the definition used by the FTC and 

federal courts has not changed appreciably; accordingly, there is no reason to depart from 

our 30   years   of precedent regarding the standard for evaluating deceptive practices. 

When it modified the deception standard in 1984, the FTC noted that it was not making 

a major change but rather was "articulat[ing] the factors actually used in most earlier 

Commission cases identifying whether or not an act or practice was deceptive, even 

though the language used in those cases was often couched in such terms as a tendency 

        54     203 P.3d at 763.
 

        55     Id. (citing MONT. CODE ANN .  30-14-103, 104(1)).
 

        56
    Id. at 763 n.1. 

        57     Id. at 764. 

        58     Id. (explaining that "[i]n doing so, we give due consideration and weight 

to interpretations of the FTC and federal courts regarding  5(a)(1) of the FTC Act"). 

                                              -23-                                          6617
 

----------------------- Page 24-----------------------

and capacity to deceive."59 And many courts continue to define deceptive practices as we 

did in  O'Neill Investigations: having "the capacity or tendency to deceive."60           Under 

either formulation, the basic elements defining a deceptive practice have remained the 

same since our O'Neill Investigations decision: 

               To show deception under the FTC Act, intent, scienter, actual 
               reliance    or   damages,    and   even    actual   deception    are 
               unnecessary.     All that is required is proof that a practice has 
               a   tendency     or  capacity    (or,  under    the  FTC's    latest 
               formulation, is likely) to deceive even a significant minority 
               of consumers.[61] 

Alaska's definition of a deceptive practice as one that has the capacity or tendency to 

deceive, then, does not conflict with existing federal interpretations.  We thus conclude 

        59     In re Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984) (internal quotation 

marks omitted). 

        60     See generally NATIONAL CONSUMER LAW CENTER, UNFAIR & DECEPTIVE 

ACTS & PRACTICES,  4.2.9, at 202-03 (7th ed. 2008) ("To date, most courts interpreting 
state [unfair and deceptive acts and practices] statutes continue to use the capacity to 
deceive and not the likely to deceive standard. . . . This standard is valid and does not 
conflict with federal law."); see also Walker v. Fleetwood Homes of N.C., 653 S.E.2d 
393, 399 (N.C. 2007) (applying "capacity to deceive" standard);  Columbia Physical 
Therapy, Inc., P.S. v. Benton Franklin Orthopedic Assocs., P.L.L.C., 228 P.3d 1260, 
1270 (Wash. 2010) ("An act is deceptive if it has the capacity to deceive a substantial 
portion of the public.") (internal quotation marks omitted);  but see, e.g., Millennium 
Commc'ns & Fulfillment, Inc. v. Office of the Attorney Gen., 761 So. 2d 1256, 1263 (Fla. 
App. 2000) (deception occurs "if there is a representation, omission, or practice that is 
likely to mislead the consumer acting reasonably in the circumstances, to the consumer's 
detriment"); Courbat v. Dahana Ranch, Inc., 141 P.3d 427, 435 (Haw. 2006) ("[W]e 
hereby adopt the three-prong CliffdaleAssocs . test in determining when a trade practice 
is deceptive."); Luskin's, Inc. v. Consumer Prot. Div., 726 A.2d 702, 713 (Md. 1999); 
Ianelli v. U.S. Bank, 996 A.2d 722, 726 (Vt. 2010). 

        61     NATIONAL     CONSUMER      LAW    CENTER,  UNFAIR      &  DECEPTIVE      ACTS   & 

PRACTICES,  4.2.3.1, at 190 (citing Cliffdale, 103 F.T.C. 110). 

                                              -24-                                          6617
 

----------------------- Page 25-----------------------

that there is no need for us to overrule O'Neill Investigations and its progeny.  The trial 

court did not err when it applied the O'Neill Investigations standard to formulate Jury 

Instruction 28 and to rule on Global's post-trial motions. 

                          c.      Application of the UTPA to this commercial dispute 

                 Relying primarily on our decisions in  Western Star and Kenai Chrysler 

Center,   Global   argues   that   its   conduct   did   not   violate   the   UTPA   because   it   did   not 

(1) amount to an "inequitable assertion of power or position," or (2) "involve a sufficient 

'level of rascality' . . . ." 

                 In  Western   Star  we   held   that   the   UTPA   may   apply   in   the   business-to- 
business context.62       In that case a commercial truck manufacturer "misrepresented the 

consequences   of   an   oral   agreement   that   it   made   with   a   potential   parts   and   service 
dealer."63    The   trial   court   found   that   the   truck   manufacturer's   conduct   violated   the 

UTPA.64       The   truck   manufacturer   appealed,   arguing   that   the   UTPA   was   limited   to 

"transactions involving consumer goods and services" and did not apply to transactions 
between   the   types   of   parties   involved      in   the   suit.65 We   rejected     this   argument,66 

observing that "while consumer protection was the dominant motive underlying the act, 

        62       101 P.3d 1047, 1053-54 (Alaska 2004). 

        63       Id. at 1047. 

        64       Id. at 1048. 

        65       Id. at 1048, 1050. 

        66       Id. at 1050-54. 

                                                     -25-                                               6617
 

----------------------- Page 26-----------------------

the act was not intended to be limited to consumer transactions."67  We therefore affirmed 

the trial court's ruling.68 

                In Kenai Chrysler Center  a   dealership   sold   a   car   to   a   developmentally 
disabled young man.69        Acting as his guardians, the young man's parents sued the car 

dealership   under   the   UTPA.70       The   jury   found   in   favor   of   the   family.71 The   car 

dealership argued on appeal that the evidence supporting the jury's finding of an unfair 
trade practice was insufficient as a matter of law.72        We observed that other jurisdictions 

"focus   on   the   unfairness   of   the   disputed   practice   under   the   specific   circumstances 
presented,"73 and noted that the Fourth Circuit Court of Appeals "described an unfair 

trade practice as an 'inequitable assertion of power or position,' ruling that '[a]lthough 

it may be rare that the exercise of a contractual right will meet this stringent standard, it 

is possible for such an exercise, when it involves egregious and aggravating conduct, to 

        67      Id. at 1052. We also quoted the House Judiciary Committee Report, which 

stated that the bill was "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."            Id. (emphasis added in  Western Star) 
(quoting Judiciary Committee Report on   H.C.S.C.S. for Senate Bill No. 352, House 
Journal Supp. No. 10 at 1, 1970 House Journal 744). 

        68      Id. at 1053-54. 

        69      167 P.3d 1240, 1245 (Alaska 2007). 

        70      Id. at 1246. 

        71      Id. at 1247. 

        72      Id. at 1255. 

        73      Id. at 1256 (citing St. Paul Fire & Marine Ins. Co. v. Ellis & Ellis, 262 F.3d 

53, 66 (1st Cir. 2001)). 

                                                  -26-                                            6617
 

----------------------- Page 27-----------------------

constitute an unfair . . . trade practice under North Carolina's UTPA.' "74                In light of the 

"flexible,   case-specific   approach"   adopted   by   other   jurisdictions,   we   concluded   the 
evidence was sufficient to uphold the UTPA claim.75 

                 According to Global, the most important aspect of  Western Star is that 

"there was very real inequality in the party's positions:              Western Star had control over 

the question whether to award a dealership to Big Iron.                   Big Iron   was   essentially a 

supplicant seeking a dealership."           Global compares itself to the dealer in Western Star. 

Global also suggests that in Kenai Chrysler Center  we adopted a requirement of an 

"inequitable assertion of power or position" for a UTPA violation, and that we "also 

embraced       the  similar   requirement      .  .  .  that  the  requisite  conduct    must    'have   an 

extortionate   quality   that   gives   it   the   rancid   flavor   of   unfairness.'   " (Emphasis   in 

original.)   We disagree. 

                 First,   nowhere     in  Western     Star  did    we   suggest    that  relative   power 

influenced our decision.  Second, in Kenai Chrysler Center we recognized that although 

the  O'Neill   Investigations   factors   "require   proof   of   something   more   than   the   mere 
assertion of a good faith but mistaken belief that a contract was valid,"76 courts in other 

jurisdictions "have broadly interpreted similar provisions to prohibit merchants from 

going     beyond     mere   assertion    of  mistaken     beliefs  by   engaging     in  conduct    that  is 
deceptive, unethical, or unfair."77          We cited   the Fourth   Circuit case (containing   the 

        74       Id. (quoting S. Atl. Ltd. P'ship of Tenn., L.P. v. Riese, 284 F.3d 518, 539 

(4th Cir. 2002)). 

         75      Id. 

         76      Id. at 1256. 

         77      Id. 

                                                   -27-                                              6617
 

----------------------- Page 28-----------------------

"inequitable assertion" language) and the First Circuit case78 (containing the "rancid 

flavor of unfairness" language) not to embrace new requirements, but because we found 

the   broad   interpretations   and   "flexible,   case-specific   approach   used   in   these   cases" 
persuasive.79    Global's argument that inequitable assertion of power and extortionate 

conduct are always necessary for a UTPA violation runs counter to the flexible, factor- 

based approach which we adopted in  O'Neill Investigations and reaffirmed in Kenai 
Chrysler Center,80 and which remains in force today. 

                        d.      Application of the UTPA to litigation activity in this case 

                GVEA   asked   the   jury   to   award   damages   for its   "review   of   withdrawn 

claims." GVEA presented evidence of employee time incurred in reviewing and denying 

Global's RFIs in 2002 and 2003, prior to the litigation, which it calculated to be $7,420. 

GVEA   also   presented   evidence of $90,966   of employee and   expert consultant   time 

expended to review and defend against Global's litigation claims through early 2006, 

when Global reduced its claims after changing the calculation methodology.                    GVEA's 

total request was $98,386, the exact jury award. 

                Global argues that its litigation decision to recalculate its damages claims, 

and specifically to withdraw portions of its original claims, is not an unfair trade practice 

under the UTPA.        Global contends that it would be poor public policy to penalize and 

thus   discourage   parties   from   withdrawing   or   modifying   contract   claims   during   the 

litigation process.    Global points out the irony that had it not withdrawn portions of its 

        78      St. Paul Fire & Marine Ins. Co., 262 F.3d at 66. 

        79      Kenai Chrysler Ctr., Inc., 167 P.3d at 1256. 

        80      Id. at 1255 (quoting  State v. O'Neill Investigations, 609 P.2d 520, 535 

(Alaska 1980)) ("A variety of factors can be considered in determining the existence of 
an unfair practice, including [the three factors mentioned in O'Neill Investigations]."). 

                                                  -28-                                            6617
 

----------------------- Page 29-----------------------

claims, GVEA could not have claimed damages for "review of withdrawn claims," even 

though GVEA might have successfully defended against them. GVEA responds that 

"Global utilized deceptive claims machinations" during "the course of the litigation" but 

otherwise does not address Global's arguments. 

                Although we disagree with Global that its mid-litigation withdrawal and 

recalculation of damages were necessarily key to GVEA's UTPA claim, we also disagree 

with GVEA's inclusion of litigation actions in its UTPA claim.   GVEA may not pursue 

in this litigation a claim for damages under the UTPA for actions undertaken by Global 
in this litigation.81  Nor may GVEA in this litigation request a jury award of damages, 

under any theory, for expenses incurred in defending against Global's claims  in this 
litigation.82  But GVEA may pursue a UTPA claim for:   (1) pre-complaint damages and 

(2) post-complaint damages it contends were caused by Global's allegedly falsified RFIs. 

Those damages   must be unrelated to the preparation and cost of its defense against 

Global's claims in this litigation.        To the extent the trial court's denials of Global's 

motions for directed verdict and judgment notwithstanding the verdict are inconsistent 

with this conclusion, they are reversed - the $90,966 portion of the jury award for 

GVEA's expenses incurred in defending this litigation cannot stand. 

        81      Cf.   Meidinger   v.   Koniag,   Inc.,   31  P.3d   77,   86  (Alaska   2001)   (citing 

DeNardo v. Michalski, 811 P.2d 315, 317 (Alaska 1991)) (noting "actions taken in the 
regular course of litigation . . . cannot be a proper basis for an abuse of process claim"); 
Kollodge v. State, 757 P.2d 1024, 1025 n.2 (Alaska 1988) (stating party cannot make 
claim   for   malicious   prosecution   unless   earlier   proceeding   has   terminated   in   party's 
favor).   If at the conclusion of litigation the trial court finds Global acted improperly 
during the course of the litigation, it can impose sanctions for that misconduct, including 
awards of enhanced costs and attorney's fees. 

        82      Sisters of Providence v. A.A. Pain Clinic, Inc., 81 P.3d 989, 1008 (Alaska 

2003) (stating neither party's time preparing nor attorney's fees for work litigating can 
be considered damages in same litigation). 

                                                 -29-                                            6617
 

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                        e.	     Conclusion 

                Although GVEA appropriately pursued a UTPA claim for damages arising 

from Global's presentation of allegedly falsified RFIs, GVEA should not have been 

permitted   to   re-cast   Global's   litigation   activity   as   a   UTPA   claim   or   GVEA's   own 

litigation expenses as UTPA damages in this litigation.            We therefore affirm the jury's 

verdict only for the $7,420 in pre-litigation compensatory damages under the UTPA, 

vacating the remainder of the verdict. 

        B.	     Global     Is  Entitled   To   A   New    Trial   On   Causation      And   Damages 
                Arising From GVEA's Breach Of NI-9. 

                1.	     Standard of review 

                We set forth in Grant v. Stoyer the standard for reviewing denial of a new 

trial motion: 

                The decision to grant or deny a new trial is within the trial 
                court's discretion.  We will only reverse a decision to deny a 
                new    trial   "if   the  evidence   supporting   the   verdict   was   so 
                completely lacking or slight and unconvincing as to make the 
                verdict plainly unreasonable and unjust."         In conducting our 
                review, we view the evidence in the light most favorable to 
                the nonmoving party.[83] 

                In that case we affirmed a long-standing rule that "where negligence and 

causation of compensable physical injury are conceded or proved, and where evidence 

of at least some pain and suffering is substantial and uncontroverted, some damages must 
ordinarily be awarded."84      We held that a jury's failure to award damages in that context 

        83      10 P.3d 594, 596 (Alaska 2000) (footnotes omitted) (citing Pugliese v. 

Perdue, 988 P.2d 577, 581 (Alaska 1999)). 

        84      Id. at 598. 

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requires a new trial,85 but we distinguished a case where "there was a legitimate fact 

dispute   about   whether   the   .   .   .   victim   had   suffered  any  injury   or   damages."86 The 

damages rule stated in Grant is equally sound in both tort and contract contexts.87 

                2.      Global's motion for a new trial on NI-9 damages 

                The jury found that GVEA breached its contractual obligations under NI-9 

but that GVEA's breach was not the legal cause of any damages to Global.                      Global 

moved for a new trial on damages, arguing that in light of the undisputed evidence of 

GVEA's breach, no reasonable juror could have concluded that GVEA was not the legal 

cause of some damages.  Global asserted that under Grant v. Stoyer, a new trial was the 

only available remedy. 

                Global recounted trial evidence of instances when GVEA failed to deliver 

complete, undamaged, or specification-compliant materials as required by the contract. 

Global also pointed to GVEA's failure to provide updated erection drawings for river 

crossing towers until after Global had been unable to erect the towers based on outdated 

drawings GVEA provided.   Global identified this error as "probably the biggest part of 

its delay damages." 

                GVEA conceded it had breached NI-9 by late delivery of owner-supplied 

materials.   But GVEA argued:         (1) that Global was not really delayed because Global 

completed the project within the time projected in its original bid; (2)            that Global was 

        85      Id. at 599. 

        86      Id. at 598-99 (emphasis in original) (citing Richey v. Oen, 824 P.2d 1371, 

1375-76 (Alaska 1992)). 

        87      Cf. Spruce Equip. Co. v. Maloney, 527 P.2d 1295, 1301 (Alaska 1974) 

(stating avoidable consequences rule applies in tort or contract). 

                                                 -31-                                           6617
 

----------------------- Page 32-----------------------

unable to quantify any alleged delay damages; and (3) that Global itself caused any 

alleged delay damages through poor contract management. 

                Global replied by reiterating undisputed difficulties arising from GVEA's 

late delivery of materials and specifications and referring to its Exhibit 192, a claim 

summary quantifying its damages.  Global's discussion and Exhibit 192 included a line 

item of "$7,369 for installation of a gate at the Tanana River." 

                The trial court denied Global's motion for a new trial on damages, finding: 

                Substantial     evidence    supports   the  jury's   conclusion    that 
                GVEA's breach of contract was not the legal cause of any 
                damages to Global.       Among this evidence is that cited by 
                GVEA       in  its  opposition.     Additionally,    other   evidence 
                questioned      the  credibility   of   Global's    witnesses,    their 
                analyses,    and   their  conclusions.     The    jury   had   enough 
                evidence   upon   which   to   reject   the   testimony   of   Global's 
                witnesses     by  not   attaching   credibility   or  giving   it  little 
                weight.  The verdict is not against the weight of the evidence. 

                3.      Global's appeal 

                Global   contends     that   the  trial   court   abused  its  discretion  by  denying 

Global's motion for a new trial on damages.  Global reiterates its trial court arguments, 

primarily     asserting  that   given  the  undisputed     evidence    of  construction   difficulties 

resulting from GVEA's untimely delivery of materials for the project, no reasonable 

juror could have concluded that GVEA's contractual breach was not the legal cause of 

some damages. GVEA responds, as it did below, by asserting that evidence in the record 

supports the jury's finding that GVEA's contractual breach did not legally cause any 

quantifiable damages. 

                It is readily apparent that the jury found Global's witnesses and evidence 

less than credible.     The trial court observed the witnesses and evidence, observed the 

presentation of the parties' cases, and concluded that the jury could have found that 

                                                 -32-                                           6617
 

----------------------- Page 33-----------------------

although GVEA breached its contractual obligations, its breach was not the legal cause 
of any damages to Global.88   We must view the evidence in the light most favorable to 

GVEA, and we also defer to the trial court's discretion to deny a motion for a new trial 
unless the verdict is "plainly unreasonable and unjust."89 

                Nonetheless, we cannot reconcile the jury's findings.              GVEA expressly 

conceded that it breached NI-9 through untimely delivery of materials. GVEA implicitly 

conceded   that   it   breached   NI-9   through   failing   to   provide   proper   materials   and   to 

compensate Global for installing a gate on the north bank of the Tanana River.  GVEA's 

argument that Global's mismanagement of time and resources caused its damages might 

be persuasive as to matters of delay but cannot provide a defense with respect to either 

Global's uncontradicted evidence of duplicated effort caused by improper materials or 

GVEA's       admitted    non-payment       for  the  gate.   Although     GVEA's      arguments     may 

demonstrate that the jury could reasonably have disputed the amount of damage caused 

by the breaches, there can be no dispute that the breaches caused Global some damage. 

In light of the evidence presented, the jury's finding of no legal causation is "plainly 
unreasonable and unjust."90 

                We therefore remand for a new trial on causation and damages arising from 

GVEA's breach of NI-9. 

        88      See Estate of Smith v. Spinelli, 216 P.3d 524, 528 (Alaska 2009) (quoting 

Peterson v. Ek, 93 P.3d 458, 463 (Alaska 2004)) ("[I]t is the province of the trial court 
to judge witnesses' credibility and weigh conflicting evidence."). 

        89      Grant   v.   Stoyer,   10   P.3d   594,   596   (Alaska   2000)   (quoting Pugliese   v. 

Perdue, 988 P.2d 577, 581 (Alaska 1999)). 

        90      Id. 

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       C.     Attorney's Fees Issues 

               1.     Standard of review 
              We review an award of attorney's fees for abuse of discretion.91       But the 

interpretation of statutes and rules - such as the UTPA's attorney's fees provision and 
Rule 68 - presents a question of law to which we apply our independent judgment.92 

              2.      UTPA attorney's fees award 

              Alaska Statute 45.50.537(a) provides: "In an action brought by a private 

person under [the UTPA], a prevailing plaintiff shall be awarded . . . full reasonable 

attorney fees at the prevailing reasonable rate."   Thus, a plaintiff who prevails on a claim 

brought pursuant to the Alaska UTPA is entitled to an award of full reasonable attorney's 
fees.93 Because we are vacating in part the judgment in favor of GVEA on its UTPA 

claim, we also vacate the trial court's award of attorney's fees under AS 45.50.537(a) 
and remand for a fresh fee determination.94 

       91     Bromley v. Mitchell, 902 P.2d 797, 804 (Alaska 1995). 

       92     Mackie v. Chizmar, 965 P.2d 1202, 1204 (Alaska 1998). 

       93     Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1260 (Alaska 2007). 

       94     GVEA has filed a related cross-appeal, arguing that the superior court erred 

by requiring GVEA to segregate the portion of its attorney's fees arising from its UTPA 
claim.  It argues that "when a party brings [a UTPA] claim as one claim among many," 
and prevails on the UTPA claim, that party is entitled to full attorney's fees on all of its 
claims. This argument is without merit. As Global maintains, "the UTPA attorney's fees 
provision is intended only to facilitate a party's ability to prosecute UTPA claims.  The 
fact that a party is a 'UTPA litigant,' in the sense that the party is asserting a UTPA 
claim, does not transmute the party's non-UTPA claims into claims for which the party 
is entitled to an award of full, reasonable attorney's fees." 

              Here the superior court awarded GVEA one quarter of its total attorney's 
fees.  The court reasoned that there were four different claims at trial, and that GVEA's 
                                                                               (continued...) 

                                            -34-                                        6617
 

----------------------- Page 35-----------------------

                3.      Rule 68 attorney's fees award 

                Because we   are vacating in part GVEA's judgment and remanding for 

further proceedings on Global's claims regarding NI-9, we vacate GVEA's Rule 68 

attorney's fees award. To assist the parties in evaluating the case on remand and to avoid 

an    unnecessary     second    appeal   of  the   issue,  we   will   consider   whether     GVEA's 

December 2004 offer was a valid Rule 68 offer of judgment. 

                In December 2004 GVEA made an offer "to allow entry of Judgment in 

favor of [Global] for Seven Hundred and Fifty Thousand Dollars ($750,000.00) . . . 

contingent on the [consolidated lawsuits] being dismissed with prejudice." 

                When GVEA sought an award of attorney's fees under Rule 68 after trial, 

Global asserted that GVEA's offer was not a valid Rule 68 offer of judgment.                   Global 

argued that because "it did not provide for the entry of judgment against GVEA" it was 

only "a settlement offer, rather than an offer of judgment."            Global acknowledged that 

the   "offer   suggested   that   it   would   allow   entry   of   judgment   in   Global's   favor   in   the 

amount      of  $750,000,"     but  noted   that  it  "was   expressly    'contingent'    on   the  two 

consolidated cases 'being dismissed with prejudice.' "  Global concluded that "the 'non- 

monetary provisions' in GVEA's 'offer of judgment' - the requirement that Global 

        94      (...continued) 

attorney's "block billing" practices made it impossible to distinguish with any precision 
how much was spent on each claim.             In Kenai Chrysler Center, 167 P.3d at 1261, we 
noted that "the UTPA's full reasonable fee provision gave the superior court . . . broad 
discretion to decide whether the [prevailing party's] proposed fees were reasonable under 
the totality of the circumstances presented."   But because we are remanding the case for 
a new trial on causation and damages on Global's NI-9 claim and for a redetermination 
of GVEA's UTPA fees without regard to work performed on the disallowed claims 
relating   to   litigation   activities   in   this   case,   we   do   not   need   to   address   the   question 
whether the amount of the trial court's fee award on the UTPA claim was reasonable. 

                                                 -35-                                            6617
 

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dismiss the pending cases with prejudice - defeated the very purpose of an offer of 

judgment:      to provide for the entry of a binding, enforceable judgment  in favor of the 

offeree." (Emphasis in original.) 

                 GVEA responded that the offer met the requirements of Rule 68.                   GVEA 

relied on a number of California cases holding that under California's offer of judgment 

rule, an offer may state a proposed payment in return for a dismissal with prejudice. 

Although the trial court had previously described   GVEA's offer as "offering to pay 

Global the amount of $750,000" - and, expressly, not as "offering judgment in the 

amount of $750,000" - the trial court stated it was persuaded by GVEA's California 

cases and that "no particular language" for a Rule 68 offer is required.                 The trial court 

determined GVEA's offer was therefore neither indefinite nor ambiguous and was a 

valid Rule 68 offer of judgment.   The trial court awarded attorney's fees under the rule. 

                 On   appeal   the   parties   raise   the   same   arguments.    In   its   brief,   GVEA 

described its offer as "offering to pay Global $750,000 in exchange for dismissal with 

prejudice   of   both   cases"   and   relied   on   the   California  cases   holding   this   language 

sufficient for an offer of judgment. 

                 After   oral   argument   in   this   case,   we   issued  our   decision   in  Sayer   v. 
Bashaw.95     In that case the defendant tendered a purported Rule 68 offer of judgment to 

pay the plaintiff a sum certain in return for the immediate dismissal of the plaintiff's 
lawsuit with prejudice.96       The plaintiff did not accept the offer and the defendant later 

prevailed at trial.97  After post-trial motions the trial court ruled the defendant's purported 

        95       214 P.3d 363 (Alaska 2009). 

        96      Id. at 364. 

        97      Id. 

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Rule 68 offer was invalid and declined to award Rule 68 attorney's fees.98             On appeal we 

held that under our statutory and rule framework a Rule 68 offer of judgment "must 
allow for entry of judgment, not merely dismissal with prejudice."99                We rejected the 

California line of cases allowing offers for dismissal with prejudice in lieu of an entry 
of judgment to be valid offers of judgment.100 

                Here the trial court expressly stated that GVEA's offer was an offer to pay, 

not an offer of judgment.  In its brief GVEA described its offer as an offer to pay Global 

in return for a dismissal of the litigation with prejudice.  Oral arguments failed to clarify 

the consequences of accepting GVEA's offer.  At best whether GVEA's offer provided 

for judgment or payment is ambiguous; at worst the offer provided for payment and not 
judgment.     Either way, it was not a valid Rule 68 offer of judgment, 101 and we reverse 

the   trial   court's   ruling   to   the   contrary. Having   done   so,   we   do   not   need   to   decide 

Global's related arguments about the application of Rule 68's attorney's fees provision 

to post-judgment efforts. 

IV.     CONCLUSION 

                We AFFIRM IN PART and VACATE IN PART the judgment entered in 

favor of GVEA against Global and REMAND for (1) a fee determination regarding 

GVEA's UTPA claim against Global and (2) a new trial on causation and damages 

relating to GVEA's breach of NI-9. 

        98      Id. 

        99      Id. at 363. 

        100     Id. at 365-66. 

        101     See id.; Thomann v. Fouse, 93 P.3d 1048, 1050 (Alaska 2004) (stating 

Rule 68 offer of judgment "must be definite"). 

                                                 -37-                                              6617 
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