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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Powercorp Alaska v. Alaska Energy Authority (10/12/2012) sp-6715

Powercorp Alaska v. Alaska Energy Authority (10/12/2012) sp-6715

        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 



POWERCORP ALASKA, LLC, and                        ) 

KWIG POWER COMPANY,                               )       Supreme Court No. S-13729 

                                                 ) 

                        Appellants,               )       Superior Court No. 3AN-07-06732 CI 

                                                 ) 

        v.                                       )       O P I N I O N 

                                                 ) 

ALASKA ENERGY AUTHORITY,                          )       No. 6715 - October 12, 2012 

RON MILLER, KRIS NOONAN, and                      ) 

CONTROLLED POWER,                                ) 

INC.,                                            ) 

                                                 )
 

                        Appellees.                )
 

                                                 )
 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Craig Stowers, Judge. 



                Appearances:           Thomas      R.   Wickwire,       Fairbanks,     for 

                Appellants. Michael G. Mitchell, Assistant Attorney General, 

                Anchorage,       and    Daniel    S.  Sullivan,    Attorney     General, 

                Juneau, for Appellees Alaska Energy Authority, Ron Miller, 

                and Kris Noonan.  Michael W. Seville, Burr, Pease, & Kurtz, 

                Anchorage, for Appellee Controlled Power, Inc. 



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

                [Christen and Stowers, Justices, not participating]. 



                CARPENETI, Chief Justice.
 

                WINFREE, Justice, dissenting in part.
 


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

I.      INTRODUCTION 



                A quasi-independent governmental agency manages a program designed 



to improve power generation in small Alaska villages that are located off the electrical 



grid.   One such village believed that the agency did not respect the wishes of village 



leaders in securing a contract to improve that village's power-generation facility.              The 



village, joined by a company that produces a key component used in improving power 



generation   in   village   areas,   sued   the   agency. The   plaintiffs   alleged   that   the   agency 



erroneously      awarded    contracts    for  power    generation    and  that  agency    employees 



improperly disclosed the company's trade secrets to its competitor.   The superior court 



dismissed all of the plaintiffs' claims on motions for summary judgment.                Because we 



agree there are no disputed issues of material fact and the defendants are entitled to 



judgment as a matter of law, we affirm the decision of the superior court in all respects. 



II.     FACTS AND PROCEEDINGS 



                The    present   appeal   concerns    many    of  the  same    underlying    facts  as 



Powercorp Alaska, LLC v. State, Alaska Industrial Development & Export Authority, 

Alaska Energy Authority (Powercorp I)1 and involves some of the same parties. 



                The   Rural   Power   System   Upgrade   (RPSU)   program   seeks   to   improve 



power generation in small Alaska villages that are located off the electrical-grid system. 



The federal Denali Commission has provided grant funds to support this program.  The 



Alaska Energy Authority, a public corporation of the State of Alaska, has received and 



administered      grants   from   the  Denali   Commission      to  support   the  RPSU     program. 



Through the RPSU program, the Energy Authority developed plans to provide automatic 



paralleling switchgear to power-generation facilities in approximately 120 small Alaskan 



        1       171 P.3d 159, 161-62, 167 (Alaska 2007).              Parts II.E and II.F concern 



events that took place after the facts discussed in Powercorp I . 



                                                 -2-                                              6715 


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

villages.    Switchgear      technology    "matches     power    generation    with   demand    on   a 



continuous,     automatic    basis."   This    practice   helps   provide   more    efficient  power 



generation. 



                Powercorp Alaska, LLC and Controlled Power, Inc. both develop and build 



automatic     paralleling    switchgear    technologies.     A    key   component      of  automatic 



paralleling switchgear is a supervisory controller, which responds to data sent by various 



sensors.   The supervisory controller sends instructions to engine controllers, which, in 



turn, adjust power generators to optimum operating speed.             The supervisory controller 



bases    its  "instructions"   on   data  received    from   the  sensors    and  pre-programmed 



parameters.  The industry standard for supervisory controllers is a "programmable logic 



controller" (PLC).     Controlled Power has used this piece of equipment in at least two 



RPSU projects.      By contrast, Powercorp's supervisory controller "relies on a personal 



computer rather than a PLC to derive the commands sent to the engine controllers." 



Powercorp and Controlled Power both have tried to secure, and sometimes have secured, 



contracts with the Energy Authority to install switchgear as part of the RPSU program. 



        A.      Powercorp Switchgear Technology; Information Provided To Noonan 



                Powercorp asserts that a key component of its   switchgear system is an 



engine controller manufactured "under license" by Woodward, a company that makes 



control   equipment.     This   piece   of   technology,   known   as   a   GSS   controller,   receives 



instructions from the supervisory controller and passes them on to the power generators. 



The record suggests that the GSS controller is similar to the GCP-30 series controller, 



which is manufactured by Woodward and sold throughout the world.                    In response to a 



discovery request, Powercorp denied that the " 'Woodward engine controller, prepared 



as a licensed product by Woodward to Powercorp' . . . is identical to a Woodward engine 



controller that is available in the open market, except that it has a Powercorp faceplate." 



                                                 -3-                                           6715
 


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

Controlled Power seems to have accepted this denial (at least for purposes of argument), 



describing the product Powercorp licensed from Woodward as having "the same features 



as the [GCP-]31 and [GCP-]32, but [with] more whistles and bells."  Powercorp contends 



that its "use of the Woodward GCP was much more extensive than any other control 



system designer or manufacturer, who used it to control just one engine."                 Powercorp 



asserts that it has developed special software programs to expand the capabilities of the 



Woodward engine controller.          It is not clear how many people - within Powercorp or 



Woodward - are familiar with the special capabilities of the GSS controller or the 



technical details of its development. 



                Powercorp      alleges   that   it   sent   the   Energy   Authority   a   confidentiality 



agreement on January 10, 2003.          This agreement had not been signed by March 2003, 



when Powercorp engineer Juergen Zimmerman met with Energy Authority employee 



Kris Noonan.   At this meeting, Zimmerman explained how the Woodward GCP Engine 



Controller   could   be   added   to   the   Energy   Authority   system.  In   a   document   entitled 



"affidavit" but which was not notarized, Zimmerman stated that   he demonstrated to 



Noonan how and where to wire the engine controller by drawing on a wiring diagram 



that Noonan provided. Powercorp alleges that this information was disclosed to Noonan 



with the understanding that it would not be communicated to others outside the Energy 



Authority.2   This was, according to Powercorp, "the only incident of disclosure that there 



is any evidence of." 



                The Energy Authority admits that in the spring of 2003, Noonan discussed 



technical functions of the Powercorp system with Zimmerman, as part of what Noonan 



perceived   to   be   a   Powercorp   "sales   pitch."  The   Energy   Authority   states   that   "Mr. 



        2        The Energy Authority signed a confidentiality agreement in August 2004. 



It is not clear if this agreement was received before or after the March 2003 meeting. 



                                                  -4-                                              6715 


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

Noonan gave Mr. Zimmerman drawings of a switchgear system that had been designed 



by [the Energy Authority], built by Controlled   Power, and installed by [the Energy 



Authority] in Tuluksak in order for Powercorp to consider whether, and to show [the 



Energy Authority] how, Powercorp could provide a system meeting this design."                      In a 



later   affidavit,   Noonan     states,  "[Zimmerman's]        drawing     may    have   included    the 



Woodward   controller,   but   it   was   not   of   interest   or   concern   to   me   how   to   wire   the 



Woodward        GCP    controller    or  any   other  Woodward       controllers    into  [the  Energy 



Authority's] system - since  [the Energy Authority] was very familiar with Woodward 



controllers and this information was available from Woodward."  In the same affidavit, 



Noonan   denies   the   allegation   that   Zimmerman        showed     Noonan     "how    to  wire   the 



Woodward        GCP    Engine    Controller    into  a  schematic     drawing    of  the  [the  Energy 



Authority's] current system" and denies asking Zimmerman to do so. 



        B.      Demonstration Sites: Stevens Village And Golovin 



                In November 2003, the Energy Authority approved a waiver for alternative 



procurement methods.         This waiver authorized the Energy Authority to award sole- 



source (non-competitive) contracts for two RPSU program sites: Stevens Village and 



Golovin. Through this non-competitive process, Powercorp and Controlled Power were 



each awarded a contract to design and build fully automatic switchgear for one of the 



villages.   Powercorp alleges that the sole-source procurement of the Controlled Power 



system was part of a plan to position Controlled Power to obtain other RPSU contracts. 



                The Energy Authority justified the sole-source procurement on the ground 



that it would allow the Energy Authority to compare and evaluate different switchgear 



          3 

systems.     "While   Controlled   Power   intended   to   install   PLC   switchgear,   Powercorp 



        3        Powercorp I , 171 P.3d at 162, 168. 



                                                  -5-                                               6715 


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

would showcase its PC-based system, which would be the first of its kind in the United 



States."4   The final specifications for the demonstration sites were developed after the 



waiver authorizing sole-source contracts was approved.              In August 2004, after the bid 



specifications were issued, Powercorp sent the Energy Authority a second confidentiality 



agreement, which was then signed by an Energy Authority representative. 



        C.	     Invitation   To   Bid   REG   04-230   For   Eight   Other   Villages Including 

                Kwigillingok 



                While installation at the demonstration sites was underway, the Energy 



Authority arranged installation of switchgear at other villages.              In 2004, the Energy 



Authority solicited bids for the installation of automatic switchgear systems in eight 



villages:   Arctic Village, Hughes, Kongiganak, Koyukuk, Kwigillingok, Manokotak, 



Nikolski, and Pedro Bay.        The Energy Authority solicited bids through a competitive 



process, issuing ITB [invitation to bid] No. REG-04-230.               The winning bidder would 



contract to install switchgear in all eight villages. 



                Bid specifications for ITB REG 04-230 were developed by engineering 



consultant Brian Gray.       The Energy Authority states that specifications are developed 



through an "iterative" process.        The parties agree that the REG 04-230 specifications 



were   based,   in   part,   on   the   specifications   used   for   the   Stevens   Village   switchgear 



installation.    The   specifications   required   use   of   an   Allen-Bradley   PLC   supervisory 



controller and Woodward GCP-31 engine controller.                 Powercorp asserts that this bid 



specification disclosed to Controlled Power key information that Noonan had learned 



about the Woodward component and how to connect it.                  Controlled Power asserts that 



it had used a Woodward GCP-30 series engine controller in its switchgear systems as 



        4       Id. at 162. 



                                                  -6-	                                             6715 


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

early as 2001.      The Energy   Authority has included Woodward engine controllers in 



contract solicitations at least since 2004. 



                 As the only responsive bidder, Controlled Power was awarded the eight- 



village switchgear-installation contract described in ITB REG 04-230.                    Powercorp did 



not   submit   a   bid;   it   had   "no   intention"   to   submit   a   bid   using   PLC   technology.5 In 



Powercorp I , we affirmed the award of the eight-village contract to Controlled Power.6 



In   that   case,   Powercorp   argued   that   the   invitation   to   bid   failed   to   provide   critical 



information   and   gave   Controlled   Power   an   unfair   advantage.7        But   we   affirmed   the 



administrative hearing officer's conclusion that the invitation to bid provided sufficient 



information to prepare a competitive bid and the officer's alternative conclusion that 



"[e]ven if the information had been deficient, Powercorp would not have standing to 



object, because it had no intention of submitting a bid using a PLC, and the general rule 



is that only a prospective bidder has standing to protest the terms of a solicitation."8 



        D.       Kwigillingok Power Plant Upgrade Project 



                 The Native Village of Kwigillingok (Kwigillingok) is one of the villages 



covered by the REG 04-230 invitation to bid.               In June of 2002, representatives of the 



Energy      Authority     and    Kwigillingok       signed    a  grant   agreement      concerning      the 



Kwigillingok Power Plant Upgrade Project.  The agreement designates Kwigillingok as 



the grantee and the Energy Authority as both the grantor and the grantee's agent. 



        5       Id. at 163. 



        6       Id. at 161. 



        7       Id. at 162. 



        8       Id. at 171. 



                                                    -7-                                              6715
 


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

                The     agreement     provided    that   upon   receipt   of  funds   from    the  Denali 



Commission, the Energy Authority would grant Kwigillingok "funds for the construction 



of the Project and performance of the Project work under the   terms   outlined in this 



agreement."       The original agreement provided that the Energy Authority would "grant 



funds   to   pay   for   expenses   incurred   by   the   Grantee   that   are  authorized   under   this 



Agreement,   in   an   amount   not   to   exceed   $210,000"   and   that   performance   would   be 



completed   "no   later   than   December   31,   2003."       These   terms   appear   to   have   been 



amended, as the project took more time and became more expensive than the parties first 



expected.     Performance deadlines were extended until the end of 2005.                 It appears that 



the Denali Commission agreed to contribute over $258,000 for the project. 



                The grant agreement assigned the Energy Authority primary responsibility 



for managing the project: 



                The Authority will serve as the Grantee's agent for the design 

                and construction management of the Project, including, but 

                not limited to, where applicable, issuing Invitations to Bid 

                and selecting contractors.   The Authority will be responsible 

                for all matters related to the Project design and construction, 

                including,      but   not   limited    to:  approval     of   plans   and 

                specifications;      choices     of   scheduling,     manpower,       and 

                methods;        procedures      for    administering       the   Project; 

                procurement       of  materials;   insurance     during    construction; 

                disposition     of   surplus   equipment;   payment   of   all   Project 

                billings; complying with all federal reporting requirements 

                (except as [otherwise] provided . . .); performance of final 

                project    inspection;     and   issuance    of  a  Notice    of  Project 

                Completion. 



The   parties   disagree   about   the   nature   of   the   duties   the   Energy   Authority   owed   to 



Kwigillingok under this agreement.           The complaint asserted that the Energy Authority 



administers federal Denali Commission funds "under a trustee relationship for the benefit 



                                                   -8-                                              6715
 


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

of . . . rural Alaska villages," including Kwigillingok. The Energy Authority rejects this 



characterization. 



               The agreement assigns the grantee responsibility for other aspects of the 



project, including securing permits and real property for the power generation site and 



serving as a liaison between the Energy Authority and the local community.   The parties 



agree that the grantee Kwigillingok is responsible for future "operation and maintenance 



costs" associated with the switchgear system. Under the grant agreement, Kwigillingok 



is also responsible for "reviewing project documents and monitoring the Project work 



to the extent necessary for Grantee to determine that the work is proceeding satisfactorily 



. . . ." The agreement adds: 



               The   Grantee   will   promptly  raise  with  the  Authority  any 

               concerns or issues it may have regarding the Project, and if 

              those concerns or issues are not satisfactorily resolved will 

              promptly give written notice with a detailed description of the 

               concerns or issues to the Authority's contact[.] 



              As the only responsive bidder, Controlled Power was awarded the eight- 



village switchgear-installation contract that covered Kwigillingok.9      Implementation of 



the Kwigillingok project was delayed as a result of the protest appeal concerning ITB 



REG     04-230.    On    September    13,  2004,   the  hearing   officer  issued  a  decision 



recommending that Powercorp's protest appeal be denied and the Controlled Power 



contract proceed as planned.  Powercorp appealed this decision to the superior court and 



later to this court; the contract was not stayed pending the outcome of those appeals.  On 



September 27, 2004, the installation contract was awarded to Controlled Power. 



              William Igkurak, Kwigillingok's facilities director, sent two letters to the 



Energy Authority expressing his disapproval of the decision to award the contract to 



       9      Id. at 162. 



                                              -9-                                         6715 


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

Controlled Power and his desire to have a "wind-ready" Powercorp switchgear system 



installed.  The first letter was sent on October 5, 2004, and the second letter was sent on 



November 9, 2004.   Mike Harper, the Energy Authority's deputy director, responded to 



each letter within ten days.       Harper's first letter stated that the switchgear-installation 



contract with Controlled Power could be cancelled under certain circumstances (i.e. if 



cancellation was in the best interests of the Energy Authority); that if the Kwigillingok 



portion    of  the   contract   were   canceled,    the  Energy     Authority    would    be  liable   for 



approximately $12,000 in terminations costs; and that cancellation of the contract would 



not   guarantee   installation   of   the   Powercorp   system   because   procurement   would   be 



governed by federal purchasing rules. 



                Igkurak's second letter stated, "We would like to place an immediate hold 



on the Controlled Power control system, and proceed immediately with the procurement 



process to substitute a Powercorp wind-ready system."  Harper's reply stated that "[t]he 



regulations   do   not   allow   [the   Energy   Authority]   to   enter   into   a   sole-source   (non- 



competitively procured) contract with Powercorp," and that "[i]f the Native Village of 



Kwigillingok is willing to pay all increased costs, the President or   other authorized 



representative of the Native Village of Kwigillingok (Grantee) should send us a letter 



that so indicates." Al Ewing, a representative of the Denali Commission who was copied 



on Mr. Igkurak's letters, sent a response on November 22, 2004.                  Ewing wrote that he 



"cannot support the alteration or amendment of any portion of the financial assistance 



award for [Kwigillingok's] power system upgrade. If the Native Village of Kwigillingok 



is determined to alter the project, it must be prepared to accept responsibility for any 



additional costs incurred . . . ." The Energy Authority asserts that Kwig Power Company 



                                                  -10-                                             6715
 


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

(Kwig Power), a division of the Native Village of Kwigillingok, did not respond to 



Harper's second letter or Ewing's letter; Kwig Power does not deny this.10 



        E.      Invitation To Bid REG 05-067 For Another Five Villages 



                In the next stage of RPSU implementation, the Energy Authority invited 



bids for the installation of switchgear in five more villages:              Chuathbaluk, Crooked 



Creek, Sleetmute, Stony River, and Takotna.   This invitation to bid was labeled ITB No. 



REG 05-067; it was not considered in Powercorp I .               The REG 05-067 solicitation was 



based in part on the      REG 04-230 invitation to bid; the Energy Authority revised the 



solicitation   it   had   used   for   the   earlier   eight-village   contract   in   an   effort   "to   make 



alternative    [non-PLC]      systems    responsive."      The    new    solicitation   required   each 



prospective contractor to submit a bid identifying, as Option 1, how it would create a 



switchgear   system   using   an   Allen-Bradley   supervisory   controller;   alternatively,   the 



solicitation allowed the bidder to identify, as Option 2, how it would create a switchgear 



system     assuming     certain   equipment     substitutions    were   allowed.     The    solicitation 



provided that "[a]ward will be made on the lowest priced responsive and responsible bid 



for either Option 1 or Option 2. [The Energy Authority] may decide to choose between 



Option 1 or Option 2 if selection of either option would not change the ranking of the 



bidder." 



                The Energy Authority and Powercorp interpreted this language differently. 



Before the bidding period opened, Powercorp filed a protest with the Energy Authority. 



When the protest was denied, Powercorp appealed and sought an administrative hearing. 



The hearing officer explained: 



        10      The parties seem to agree that for the purposes of this appeal Kwig Power 



Company and the Native Village of Kwigillingok are a single legal entity. 



                                                  -11-                                              6715 


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

                As Powercorp understood the invitation, even if Powercorp's 

                bid for the Powercorp system was lower than any other bid, 

                including all of the Option No. 1 bids, the energy authority 

                would have had the discretion to reject the Powercorp system 

                and choose the lowest-priced Option 1 bid.             For that reason, 

                and   because   it   had   no   intention   of   supplying   a   system   in 

                conformity with Option 1, Powercorp filed a protest and did 

                not    submit    a  bid   on   either  option.    .  .  .  [T]he  energy 

                authority's intent was that the award would be made to the 

                bidder who made the lowest bid for either Option No. 1 or 

                Option No. 2 from among all of the bids submitted, and that 

                the authority retained discretion to choose that bidder's other 

                option, but only if that bidder's other option was also the 

                lowest      bid    for   that   option.     Under     the    authority's 

                understanding,       if  Powercorp's       Option    No.    2  bid   (the 

                Powercorp proprietary system) was the lowest of all bids on 

                either option, then the authority was obligated to award the 

                contract to Powercorp, and could only switch to Option No. 1 

                (the energy authority's system) if Powercorp's Option No. 1 

                bid was also the lowest bid on that option. 



Powercorp also argued that it should not have been required to submit a bid on Option 



No. 1 in order to submit a bid on Option No. 2.   The Energy Authority argued that a bid 



on Option No. 1 was required "in order to ensure that bidders fully understand our 



system   requirements   and   provide   a   system   that   offers   similar   performance   and   has 



similar layout and construction."   The hearing officer dismissed Powercorp's argument 



as moot because Powercorp had not shown that, but for the Option 1 requirement, it 



would have been the successful bidder. 



                Powercorp also argued that the Energy Authority had abused its discretion 



by    issuing   an  invitation   to  bid,  seeking    competitive     bids  that  met   certain   design 



standards,     instead   of  issuing   a  request   for   proposals,    seeking   proposals     that  met 



performance criteria.       The hearing officer concluded that AS 36.30.100 provides the 



                                                  -12-                                             6715
 


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

Energy Authority with discretion to proceed with competitive bidding in this case and 



that the Authority had not abused its discretion. 



        F.       Civil Claims 



                The underlying facts of this case were in dispute as early as June 2004 



when Powercorp protested ITB REG 04-230 invitation to bid.                  This case was initiated 



in superior court when Powercorp and Kwig Power alleged various civil claims against 



Controlled   Power,   the   Energy   Authority,   Energy   Authority   Executive   Director   Ron 



Miller, Energy Authority employee Kris Noonan, and other defendants who are not 



parties to this appeal.   An initial complaint was filed on August 11, 2006, identifying the 



defendants listed above and two plaintiffs, Powercorp and Harvey Paul, manager of the 



Puvurnak Power Company of Kongiganak.  Kwig Power was not identified as a plaintiff 



in   the   original   complaint,     nor   was   the   Native    Village    of  Kwigillingok.        On 



December 18, 2006, the First Amended Complaint was filed, listing the same defendants. 



The amended complaint listed Powercorp and Kwig Power Company as plaintiffs; it did 



not list Harvey Paul, the Puvurnak Power Company, or the village of Kongiganak as 



plaintiffs.  On April 1, 2008, Powercorp and Kwig Power filed the Second Amendment 



Complaint, listing all the same parties as the prior complaint. 



                In its Second Amended Complaint, Powercorp alleged that Kwig Power 



was   damaged   as   a   result   of   the   Energy   Authority's   refusal to   install   the   Powercorp 



control system (Count I).   The complaint suggested that Kwig Power's damages consist 



of future "operation and maintenance costs," noting that "the Powercorp system . . . had 



been shown to save up to 50% of the fuel costs when installed in [similar] towns . . . ." 



Kwig Power also asserted claims against Noonan for working to exclude the Powercorp 



system from the Kwig Power procurement (Count III) and against Miller for failing to 



ensure compliance with procurement laws and competitive bidding (Counts VI, VII). 



                                                 -13-                                            6715
 


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

               Powercorp asserted claims against Noonan for interference with prospective 



economic      advantage    and   misappropriation     of   a  Powercorp     trade  secret   under 



AS 45.50.910 et seq. (Counts III, IV).       Powercorp alleged that Controlled Power was 



liable for unjust enrichment as a result of the trade-secret misappropriation and liable for 



colluding with other defendants to inhibit competition (Counts V, VIII).             Powercorp 



further alleged that it was also damaged as a result of Miller's "negligent failures to act" 



and    Miller's   improper    decision    to  authorize    sole-source   procurement      for  the 



demonstration project awarded to Controlled Power (Counts VI, VII). 



               The Energy Authority, Noonan, and Miller submitted an answer that largely 



denied the plaintiffs' allegations and raised several affirmative defenses.          Controlled 



Power filed a similar answer.      The defendants later moved either for dismissal under 



Rule 12(b)(6) or for summary judgment. 



               On July 21, 2008, the superior court dismissed most of the claims against 



the Energy Authority, Noonan, and Miller.         The claims against Controlled Power were 



dismissed in February 2009, following a hearing.  The final claim, alleging trade-secret 



misappropriation by Noonan, was dismissed at a hearing in September 2009. Controlled 



Power and Noonan lodged proposed written findings and conclusions following the oral 



rulings in which the superior court dismissed claims against them; the court signed these 



orders in June 2009 and October 2009.          In November 2009, the superior court entered 



final judgment. 



               During the course of this multi-year litigation, the superior court made a 



number of procedural rulings, which are addressed, as necessary, in Part IV.H. 



               Powercorp and Kwig Power appeal.          Their appeal addresses the superior 



court's   decision   to  dismiss  their  claims  in  addition   to  several  rulings  concerning 



discovery and timing. 



                                              -14-                                          6715
 


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

III.    STANDARD OF REVIEW 

                Orders     granting    summary     judgment     are   reviewed     de  novo.11   The 



applicability and scope of official immunity present questions of law, which we review 



de novo.12    The applicability of res judicata and collateral estoppel raises questions of 



law,   which   we   review   de   novo.13 We   generally   review   procedural   decisions   of   the 



superior court for abuse of discretion.14     "We may affirm the superior court on any basis 



supported by the record, even if that basis was not considered by the court below or 



advanced by any party."15 



IV.     DISCUSSION 



        A.      Collateral Estoppel 



                There is no dispute that the facts underlying this case overlap significantly 



with the facts of Powercorp I .      Issues resolved in prior litigation may limit the scope of 



questions before us now, if collateral estoppel applies.  Thus, we consider first whether 



collateral estoppel applies so as to preclude our consideration of any issues raised by 



Powercorp and Kwig Power. 



                The   Energy   Authority,   Miller,   and   Noonan   urge   us   to   apply   collateral 



estoppel to affirm the superior court's dismissal of several claims.  Powercorp and Kwig 



        11      Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008). 



        12      Weed v. Bachner Co., 230 P.3d 697, 699 (Alaska 2010). 



        13     Matanuska Elec. Ass'n v. Chugach Elec. Ass'n , 152 P.3d 460, 465 (Alaska 



2007). 



        14     Prentzel v. State, Dep't of Pub. Safety, 169 P.3d 573, 592 (Alaska 2007) 



(citing Balough v. Fairbanks N. Star Borough , 995 P.2d 245, 254 (Alaska 2000)). 



        15      Smith, 189 P.3d at 1070 (quoting Gilbert M. v. State, 139 P.3d 581, 586 



(Alaska 2006)). 



                                                -15-                                           6715
 


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

Power contend that the collateral estoppel doctrine does not resolve the present dispute. 



Collateral estoppel prohibits a party from re-litigating an issue of fact if the following 



four factors are met: 



                 (1) the party against whom the preclusion is employed was a 

                 party to or in privity with a party to the first action; (2) the 

                 issue   precluded   from   relitigation   is   identical   to   the   issue 

                 decided in the first action; (3) the issue was resolved in the 

                 first action by a final judgment on the merits; and   (4)   the 

                 determination       of   the   issue   was    essential    to   the   final 

                judgment. [16] 



But we have   recognized that it is not always possible to resolve a case through collateral 



estoppel, even if that case arises from the same underlying facts and theory as prior 



litigation.17 



                 The   Energy   Authority   correctly   argues   that   collateral   estoppel   can   be 



asserted defensively.  It does not matter if Noonan, Miller, or Controlled Power were not 



parties to Powercorp I .  What matters is that Powercorp - "the party against whom the 



preclusion   is   employed"   -   was   a   party   to   the   prior   action.18  The   first   element   of 



collateral estoppel is satisfied with respect to Powercorp's claims. 



        16       State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty, 



167 P.3d 64, 71 (Alaska 2007) (quoting Powers v. United Serv. Auto Ass'n , 6 P.3d 294, 

297 (Alaska 2000)). 



        17       Latham v. Palin , 251 P.3d 341, 345 (Alaska 2011) (applying discretionary 



immunity doctrine to claims not barred by collateral estoppel in Latham's third challenge 

to legislation affecting his right to criminal-sentence appeal). 



        18       Smith, 189 P.3d at 1075 ("[Defendants] Stafford and Cox have met their 



burden under the first element because [Plaintiff] Smith was a party to the original CINA 

case."). 



                                                    -16-                                              6715
 


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

               But   the  other  elements    are  less  straightforward,   and  we   agree  with 



Powercorp that the appellees cannot satisfy all the elements of collateral estoppel.  "One 



of the most difficult problems in the application of [collateral estoppel] is to delineate the 



issue on which litigation is, or is not, foreclosed by the prior judgment."19   In isolating 



which issues from Powercorp I are identical to issues in the present case, we consider 



a number of factors, such as: 



               Is  there   a  substantial  overlap   between    the  evidence   or 

               argument to be advanced in the second proceeding and that 

               advanced in the first? Does the new evidence or argument 

               involve application of the same rule of law as that involved 

               in   the  prior  proceeding?   Could    pretrial  preparation  and 

               discovery relating to the matter presented in the first action 

               reasonably be expected to have embraced the matter sought 

               to be presented in the second? How closely related are the 

               claims involved in the two proceedings?[20] 



In  Powercorp      I ,  we  considered   "whether   the  Energy    Authority   showed    'illegal 



favoritism' to Controlled Power . . . by 'working with it to design its system[,] then 

specifying it in the [REG 04-230] ITB.' "21     The same invitation to bid is a subject of the 



present case.  And Powercorp has made a similar argument here:  Powercorp has alleged 



that Controlled Power colluded with Noonan in order to ensure that only Controlled 



Power could successfully bid on the switchgear installation contract for the first eight 



villages.  However, the claims in this case go beyond the scope of the issues litigated in 



        19     RESTATEMENT (SECOND) OF JUDGMENTS   27 cmt. c (1982). 



       20      Id. ; see also Matanuska Elec. Ass'n v. Chugach Elec. Ass'n , 152 P.3d 460, 



468 (Alaska 2007) ("A comparison of the issues reveals that precisely the same questions 

that would be considered . . . in adjudicating MEA's breach of contract claim were 

resolved through the Commission's Order 26."). 



       21      Powercorp I , 171 P.3d 159, 164 (Alaska 2007). 



                                              -17-                                         6715
 


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

Powercorp I .  Powercorp I dealt with an illegal favoritism claim based on a theory that 

Controlled   Power   maintained   undue   influence   on   the   procurement   process.22        Here, 



Powercorp       brings   a  trade  secret  misappropriation      claim,   an  accompanying       unjust 



enrichment claim against Controlled Power, and civil claims against several individuals. 



Although the claims may have some similarities, the legal analysis differs for these new 



claims.    Moreover, the underlying facts are not identical.         Powercorp I only addressed 



the sole-source procurement at the two demonstration sites and the invitation to bid on 



the   eight   villages.   These     new   claims   also   incorporate    the  special   issues  of  the 



Kwillingok installation, the invitation to bid in five more villages, and disputes regarding 



disclosure and secrecy.      Because the scope of this suit is much broader than the issues 



addressed in Powercorp I , collateral estoppel is not appropriate here. 



                In addition, the determinations in Powercorp I were not essential to a final 



judgment on the merits, as required by the third and fourth elements of the collateral 



estoppel doctrine.      In Powercorp I , Powercorp waived the argument that the Energy 

Authority bore the burden of proof on its chosen method of procurement.23                 Moreover, 



judgment against Powercorp in that case was justified on the alternative ground that 

Powercorp lacked standing to protest the procurement.24             For these procedural reasons, 



the determination that there was no "illegal favoritism" was not "essential" to the final 



judgment;      indeed,   there   was   no  such    conclusive    determination     in Powercorp       I. 



Accordingly, Powercorp I was not a judgment on the merits that supports the application 



of collateral estoppel in the present case.       Thus, we turn to an analysis of each count of 



the complaint and the affirmative defenses of absolute and qualified immunity. 



        22      Id. at 164. 



        23      Id. at 165. 



        24      Id. 



                                                 -18-                                              6715 


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

        B.      Official Immunity 



                Because the application of absolute or qualified immunity could bar several 

of   the   appellants'   claims,25  we   address   these   defenses   before   analyzing   each   claim. 



Miller and Noonan contend that claims against them are barred by official immunity. 



Powercorp does not respond to these contentions in its brief, but Kwig Power does argue 



that both Noonan and Miller are not entitled to immunity.                 Official immunity shields 



government       employees      from   defending     themselves     against    claims   arising   out   of 

discretionary acts undertaken in the course of official duties.26            We have explained that 



"a public employee . . . may not be held liable for acts done in   line   of official duty 



involving a mistake in judgment or discretion, or because of erroneous interpretation and 

application of law . . . ."27 



                The complaint in this case includes claims against Noonan for tortious 



interference with prospective economic advantage and misappropriation of a trade secret; 



it also includes claims against Miller for negligent supervision of Noonan and improper 



approval of sole-source procurement. Powercorp and Kwig Power argued in the superior 



court that approval of the sole-source procurement for the Stevens Village demonstration 



        25      The partial dissent would remand the immunity issue because it was "never 



raised in the . . . trial court."    However, remand is not necessary as we have held that 

"[w]e may affirm the superior court on any basis supported by the record, even if that 

basis   was   not   considered   by   the   court   below   or   advanced   by   any   party." Smith   v. 

Stafford, 189 P.3d 1065, 1070 (Alaska 2008) (quoting Gilbert M. v. State, 139 P.3d 581, 

586 (Alaska 2006)). 



        26       Aspen Exploration Corp. v. Sheffield , 739 P.2d 150, 159-60 (Alaska 1987) 



("As our prior decisions in this area indicate, we are of the opinion that some form of 

immunity for public officials is necessary simply to insure that government continues to 

function."). 



        27      Id. at 153 (quoting State v. Stanley, 506 P.2d 1284, 1292 (Alaska 1973)). 



                                                  -19-                                             6715
 


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

site helped position Controlled Power to obtain other contracts because it allowed the 



defendants to exchange information that was incorporated into the specifications for the 



next two switchgear-installation contracts (REG 04-230 and REG 05-670).  According 



to the complaint, the invitations to bid for the next two contracts were "in effect" sole- 



source procurements directed to Controlled Power.                Powercorp and Kwig Power have 



pointed to the following actions to support their claims:             (1) Noonan's preparation of a 



competitive-bid       waiver    for   the  demonstration      sites;  (2)  Miller's    approval    of  the 



competitive-bid waiver; (3) communications between Noonan and the RPSU contractors; 



(4) solicitation of REG 04-230 and REG 05-670 contracts through the invitation to bid 



process (instead of requests for proposals); and (5) publishing contract specifications that 



require an Allen-Bradley supervisory controller and Woodward engine controller. These 



are all discretionary actions undertaken in the course of official duties; in the words of 



the Energy Authority, these acts required the defendant officials to use discretion and 



judgment and to consider various alternatives in "[d]etermining the particularized needs 



of the Alaska Energy Authority RPSU communities and the specific types of upgrades 



and     technical   equipment      that  are   responsive     to  energy    needs   of   Alaska's    rural 



communities."        Because   the   claims   against   Noonan   and   Miller   arise   out   of   official 



discretionary conduct, official immunity applies to these claims. 



                Now we must determine whether absolute or qualified immunity applies to 



Miller's and Noonan's conduct.            Qualified immunity shields government employees 

from   liability   if   their   actions   are   done   in   good   faith   without   malice   or   corruption.28 



Certain     government      officials   are   entitled  to  the   broader    protections     of  absolute 



        28      Id. at 158 ("Under a rule of qualified immunity, a public official is shielded 



from liability only when discretionary acts within the scope of the official's authority are 

done in good faith and are not malicious or corrupt."). 



                                                   -20-                                               6715 


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

immunity;29 when such immunity applies, a court should dismiss claims without any 



inquiry into the motive of the official defending the suit.30         In determining whether an 



official is entitled to absolute or qualified immunity, we have considered three factors: 



(1) the nature and importance of the function performed by the officer; (2) the likelihood 



that the officer will be subjected to frequent accusations of wrongful motives and how 



easily the officer could defend against such allegations; and (3) the availability to the 

injured party of other remedies or other forms of relief.31           We have been reluctant to 



"cloak"   public   officials   with   absolute   immunity   in   all   cases.32 Qualified   immunity 



applies unless a government official in a particular case presents adequate evidence to 



show     that  the   official,  discretionary    acts  underlying     the  case   warrant    absolute 

immunity.33 



                The Energy Authority and Noonan concede that Noonan is not entitled to 

absolute immunity,34 but they argue that, as a high-level official, Miller is entitled to 



        29      See, e.g ., Whalen v. Hanley, 63 P.3d 254, 258 (Alaska 2003) ("Legislative 



immunity, where it applies, is absolute, and not merely qualified."). 



        30       Aspen ,   739   P.2d   at   158  ("[Absolute]   immunity     applies   whether    the 



allegedly tortious conduct was done maliciously, corruptly, or in bad faith."). 



        31     Id. at 159-60. 



        32     Id. at 158 ("[Q]ualified immunity is sufficient to protect the honest officer 



who tries to do his duty."). 



        33     Id.  at 159 ("We perceive no logical or compelling reason why a public 



official should always be entitled to absolute immunity."). 



        34      This position is consistent with our holding in Weed v. Bachner Co.,  230 



P.3d 697, 704 (Alaska 2010) (concluding procurement official was entitled to qualified 

immunity for allegedly tortious conduct arising out of bid evaluations). 



                                                -21-                                           6715
 


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

absolute immunity.35  But Miller did not present specific evidence to satisfy the three-part 



test.36  As Powercorp notes, relief available through the bid-protest process is limited;37 



this counsels against the application of absolute immunity.              Although the procurement 



of switchgear equipment appears to play an important role in improving rural power 



generation, this is insufficient to tip the balance in favor of absolute immunity.  We 



conclude that qualified immunity applies to both Miller's and Noonan's conduct in this 



case; thus, the appellants must present evidence of bad faith, malice, corruption, or other 



outrageous   conduct   in   order   for   the   claims   against   Miller   and   Noonan   to   survive 

summary judgment.38 



                To the extent that Powercorp and Kwig Power alleged bad faith on the part 



of Miller, that claim was unsupported by the record and consisted of mere accusations. 



They point to no record evidence that would support bad faith on Miller's part. As noted 



above, Powercorp did not respond at all on the immunity issue in its reply brief in this 



court.   Kwig Power did address the issue, but, as to Miller, did no more than advance 



broad policy arguments concerning the interests of Alaska's villages in obtaining state- 



        35      Smith v. Stafford, 189 P.3d 1065, 1073 ("[G]enerally 'absolute immunity 



applies only to judges, legislators, and the highest executive officers of various levels of 

government.' "). 



        36       Weed, 230 P.3d at 701 ("Although it might sound intuitively correct that 



qualified immunity would increase the likelihood of tort suits in this context, as the 

officials argue, intuition alone is not sufficient:  In evaluating this factor in the past, we 

have required empirical evidence that frequent suits are likely."). 



        37      AS 36.30.585(c) ("[I]f a protest is sustained in whole or part, the protester's 



damages are limited to reasonable bid or proposal preparation costs."). 



        38      Aspen , 739 P.2d at 158 (quoting W. PROSSER , HANDBOOK OF THE LAW OF 



TORTS   132 at 989 (4th ed. 1971) ("[O]fficial immunity should not become a cloak for 

malicious,   corrupt,   and   otherwise   outrageous   conduct   on   the   part   of   those   guilty   of 

intentional abuse of power . . . .")). 



                                                  -22-                                             6715
 


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

of-the-art control systems.  Neither appellant claimed that the issue was not raised below 



or that our consideration of this alternative ground for affirmance - raised in detail by 



appellees the Energy Authority, Miller, and Noonan - would be unfair to them. Under 



these circumstances, we conclude that official immunity provides an alternative basis to 



uphold the superior court's dismissal of Counts VI and VII against Miller. 



                With respect to Noonan, the allegations of Powercorp and Kwig Power are 



more robust.  They allege that Noonan engaged in "intentional wrongdoing" to advance 



his own "financial and career interests."   They further suggest that Noonan, in bad faith, 



destroyed documents related to this litigation.         Powercorp also alleges in its reply brief 



that Noonan "pressur[ed] or threaten[ed] Powercorp to induce it to sell or make available 



. . . its control system."   With respect to Noonan, the appellants have produced sufficient 



evidence of bad faith to survive summary judgment.  Thus, we address the merits of the 



claims against Noonan - Counts III and IV - below. 



        C.	     It Was Not Error For The Superior Court To Dismiss Count I - Kwig 

                Power's Claim That The Energy Authority Caused It Injury. 



                Kwig     Power     alleges   that  it  was   harmed    as   a  result  of  the  Energy 



Authority's refusal to install the Powercorp control system.              It suggests that damages 



consist of future "operation and maintenance costs" and that "the Powercorp system . . . 



had been shown to save up to 50% of the fuel costs when installed in [similar] towns 



. . . ." Kwig Power does not specify what kind of duty the Energy Authority allegedly 



breached, but its pleadings and briefing implicate several areas of law including contract 



obligations, tort duties, and fiduciary relationships. 



                The Energy Authority argues that Kwig Power's claim is barred by estoppel 



or   waiver.   It   maintains   that   by   not   responding   to   the   Energy   Authority's   letter   of 



November 19, 2004, Kwig Power led the Energy Authority to believe that it would not 



protest the installation of the Controlled Power system and forfeited any claim to that 



                                                  -23-	                                           6715
 


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

effect.  The Energy Authority further argues that even if Kwig Power had presented a 



viable breach of contract claim, it would be "barred because the Village of Kwigillingok 



breached its obligations under the grant agreement." The Energy Authority rejects Kwig 



Power's characterization of the Energy Authority as a trustee. 



                Waiver,      or  the  intentional    relinquishment      of  a  known     right,  can   be 



accomplished by an express statement or by conduct that is "inconsistent with any other 



intention than a waiver, or where neglect to insist upon the right results in prejudice to 

another party."39 



                In this case, the grant agreement describes the Energy Authority as Kwig 



Power's "agent for the design and construction management of the Project, including, 



but not limited to, where applicable, issuing Invitations to Bid and selecting contractors." 



It assigns to the Energy Authority "responsib[ility] for all matters related to the Project 



design     and    construction,     including    but   not   limited    to:  approval     of  plans    and 



specifications;   .   .   .   procedures   for   administering   the   Project;   [and]   procurement   of 



materials."  These terms explicitly authorized the Energy Authority to solicit bids for the 



installation of switchgear in Kwigillingok, to enter a contract with the sole responsive 



bidder, and to finalize specifications for the installation of that switchgear.  The contract 



sets out the understanding that the Energy Authority will comply with procurement laws 



in its efforts to solicit bids and secure a switchgear contract.  Although Kwig Power 



expressed to the Energy Authority some reservations about the contracting process, it did 



so only after the contract was awarded to Controlled Power and never responded to the 



Energy Authority's November 19 letter about terminating the Controlled Power contract. 



        39       Carr-Gottstein Foods Co. v. Wasilla, LLC, 182 P.3d 1131, 1136 (Alaska 



2008) (quoting Milne v. Anderson , 576 P.2d 109, 112 (Alaska 1978)). 



                                                   -24-                                               6715 


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

                Under these circumstances, we agree with the Energy Authority that Kwig 



Power waived its right to protest the installation of Controlled Power switchgear.  It 



forfeited this claim by leading the Energy Authority to believe that it acceded to the 



installation. 



                Our position is not changed by Kwig Power's assertion in the complaint 



that the Energy Authority administers federal grant funds "under a trustee relationship" 



for the benefit of Kwig Power and other villages.  Kwig Power waived this argument by 

failing   to   adequately   brief   it.40 We   affirm   the   superior   court's   decision   to   dismiss 



Count I. 



        D.	     It Was Not Error For The Superior Court To Dismiss That Part Of 

                Count   III   Setting    Out   Kwig   Power's   Claim       Against   Noonan   For 

                Working To Exclude The Powercorp System From The Kwigillingok 

                Procurement. 



                Kwig Power asserts separate claims against Noonan for working to exclude 



the Powercorp system from the Kwigillingok procurement (Count III).                     The Energy 



Authority and Noonan defend the superior court's decision to dismiss this claim on 



various grounds, including waiver, statute of limitations, immunity, and other grounds. 



Here, too, we conclude that the claim is barred by waiver. As discussed in Part IV.B, the 



behavior of Kwig Power led the Energy Authority and its employees to believe that 



Kwig Power acceded to the installation of a Controlled Power system.                  We affirm the 



superior court's dismissal of this claim. 



        40       See Hidden Heights Assisted Living, Inc. v. State, Dep't of Health & Soc. 



Servs., Div. of Health Care Servs., 222 P.3d 258, 270 n.60 (Alaska 2009) (holding an 

argument to be "waived for inadequate briefing and failure to raise   the   issue in the 

statement of points on appeal"); Adamson v. Univ. of Alaska , 819 P.2d 886, 889 n.3 

(Alaska 1991) ("[W]here a point is given only a cursory   statement in the argument 

portion of a brief, the point will not be considered on appeal."). 



                                                 -25-	                                          6715
 


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

        E.	    It Was Not Error For The Superior Court To Dismiss That Part Of 

                Count     III  Setting   Out    Powercorp's      Claim    Against    Noonan      For 

               Intentional Interference With Prospective Economic Advantage. 



               Powercorp asserts a claim against Noonan for intentional interference with 



prospective economic advantage.         To establish a claim of intentional interference with 



prospective economic advantage, the plaintiff must provide evidence of: 



                (1)  the   existence   of  a  prospective    business   relationship 

               between the plaintiff and a third party; (2) knowledge by the 

                defendant     of  the  prospective    relationship,   and  intent   to 

               prevent its fruition; (3) conduct by the defendant interfering 

               with     the   relationship;   (4)   failure   of   the  prospective 

               relationship to culminate in pecuniary benefit to the plaintiff; 

                (5) causation of the plaintiff's damages by the defendant's 

                conduct; and (6) absence of privilege or justification for the 

                defendant's action.[41] 



Powercorp's intentional interference claim is premised on the notion that Powercorp has 



an existing prospective business relationship with the Energy Authority, but it has not met 



this threshold requirement. Procurement laws entitle Powercorp to a fair bidding process 



in which no particular contractor is favored from the outset.  Submitting a bid entitles the 

bidder to "fair and honest consideration."42       Submitting a bid does not provide any one 



bidder with a contract expectancy superior to the rights of other bidders.43           In this case, 



Powercorp      did   not  submit   a  bid;  the  bid-protest    hearing   officer  concluded     that 



        41	    J & S Servs. v. Tomter , 139 P.3d 544, 551 (Alaska 2006). 



        42     King v. Alaska State Hous. Auth ., 633 P.2d 256, 261 (Alaska 1981) ("[A]n 



agency,    in  soliciting  bids,  implicitly   contracts   to  give  those  bids   fair  and  honest 

consideration."). 



        43     Id. at 260 ("[T]he distinction between appellants and any other disappointed 



bidders amounts to nothing more than the right to the award of the contract in the unlikely 

event of an ASHA decision that the merits of their proposal were exactly equal to those 

of the best of the competing proposals."). 



                                                -26-	                                         6715
 


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

"Powercorp could have responded, substituting an Allen-Bradley PLC controller for its 



own controller, but it chose not to because . . . it is not interested in building systems 



using other controllers."     Powercorp has not produced other evidence to contradict the 



hearing     officer's  conclusion.     Powercorp      has   not  shown     that  but  for  Noonan's 



interference, it expected to enter a contract with the Energy Authority from which it 



would derive economic benefits.  The superior court did not err in dismissing Count III. 



        F.	     It Was Not Error To Dismiss Count IV - Powercorp's Claim That 

                Noonan Misappropriated A Trade Secret. 



                Count     IV   of  the  complaint     alleges   that  Noonan     misappropriated      a 



Powercorp trade secret and that Controlled Power was unjustly enriched as a result.  The 



parties agree on the outlines of the governing law: A trade secret misappropriation claim 



cannot be established unless the plaintiff had a trade secret that was communicated to the 



defendant in circumstances giving rise to a duty of secrecy.44           Alaska's Uniform Trade 



Secrets Act defines the relevant terms.45 



                1.	     Trade secret 



                Alaska Statute 45.50.940(3) provides the following two-part definition for 



the term "trade secret": 



                "[T]rade secret" means information that 



                (A) derives independent economic value, actual or potential, 

                from not being   generally known to, and not being readily 

                ascertainable   by   proper   means   by,   other   persons   who   can 

                obtain economic value from its disclosure or use; and 



        44      See, e.g., Utah Med. Prods., Inc. v. Clinical Innovations Assocs., 79 F. 



Supp. 2d 1290, 1311 (D. Utah 1999) (citing Water & Energy Sys. Tech., Inc. v. Keil, 974 

P.2d 821, 822 (Utah 1999)). 



        45	     See AS 45.50.930 (incorporating by reference AS 45.50.910 -.945). 



                                                 -27-	                                            6715 


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

                 (B)  is   the   subject   of   efforts   that   are   reasonable   under   the 

                 circumstances to maintain its secrecy.[46] 



The first part of this definition asks if the alleged trade secret is something worthy of 



being kept secret, and the second part of the definition asks if the alleged trade secret was 



actually kept secret to a reasonable degree. The following six factors have been used to 



determine whether information constitutes a trade secret under Missouri's trade secret 



statute, which adopts the same two-part definition found in AS 45.50.940(3): 



                 (1) the extent to which the information is known outside of 

                 [the]    business;    (2)   the  extent    to  which    it  is  known     by 

                 employees   and   others   involved   in   [the]   business;   (3)   the 

                 extent   of   measures      taken   by   [the  business]   to    guard   the 

                 secrecy of the information; (4) the value of the information to 

                 [the   business]   and   to   [its]   competitors;   (5)   the   amount   of 

                 effort or money expended by [the business] in developing the 

                 information;       (6)  the   ease    or  difficulty    with    which    the 

                 information   could   be   properly   acquired   or   duplicated   by 

                 others.[47] 



Each factor is relevant to the inquiry in this case insofar as it helps determine whether the 



disputed information was marked with indicia of secrecy at the time it was disclosed to 



         46      See also State, Dep't of Natural Res. v. Arctic Slope Reg'l Corp., 834 P.2d 



134,   137-38   (Alaska   1991)   (considering   definition   of   "trade   secret"   in   determining 

whether appellee had a "property interest" as part of unconstitutional-taking analysis and 

concluding       that  DNR      did  not   effect   an   unconstitutional      taking   of   the  appellee's 

proprietary well-drilling data); RESTATEMENT (FIRST) OF TORTS  757 cmt. b (1939) ("A 

trade secret may consist of any formula, pattern, device or compilation of information 

which   is   used   in   one's   business,   and   which   gives   him   an   opportunity   to   obtain   an 

advantage over competitors who do not know or use it."). 



         47      Secure Energy, Inc. v. Coal Synthetics, LLC, 708 F. Supp. 2d 923, 926 



(E.D. Mo. 2010) (quoting Cerner Corp. v. Visicu, Inc., 667 F. Supp. 2d 1062, 1077-78 

(W.D.  Mo.   2009)   (interpreting   MO . REV .  STAT .            417.453)).   These   factors   are   also 

mentioned in RESTATEMENT (FIRST) OF TORTS   757 (1939). 



                                                     -28-                                               6715
 


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

Noonan.      "The   status   of   information   claimed   as   a   trade   secret   must   be   ascertained 



through a comparative evaluation of all the relevant factors, including the value, secrecy, 



and     definiteness    of   the  information      as  well    as  the   nature    of  the   defendant's 



misconduct."48 



                Powercorp identifies the subject of its alleged trade secret most clearly when 



it explains in its reply brief: 



                The existence of the Woodward Controller is not Powercorp's 

                trade secret. It is Powercorp's custom program modifications 

                and how to wire it into the system that enabled it to replace 

                the   functions   of   several   other   components,   get   the   gensets 

                "talking   to   each   other"   and   collect   data   which   would   be 

                accessible via remote monitoring.  This is Powercorp's use of 

                its   version     of  its  highly    modified      Woodward       Engine 

                controller. 



(Emphasis added.) At oral argument, Powercorp specified that one part of its secret 



involves leaving vacant the X4 and X5 terminals of the Woodward controller.  The trade 



secret issue is also addressed in affidavits (some un-notarized) and depositions of some 



Powercorp employees, as well as Powercorp's responses to discovery.                        The question 



before us now is whether Powercorp exercised reasonable efforts to protect its allegedly 



unique   methods   of   programming   and   wiring.         This   is   ordinarily   a   question   of   fact, 



although,   in    some    extreme    cases,   where    the  plaintiff   could  not   have   expected    its 



information to remain secret, this may be resolved as a matter of law.49 



        48      RESTATEMENT (THIRD) OF UNFAIR  COMPETITION  39 cmt. d (1995). 



        49      Fail-Safe LLC v. A.O. Smith Corp. , 744 F. Supp. 2d 831, 857 (E.D. Wis. 



2010) (citing Learning Curve Toys, Inc. v. PlayWood Toys, Inc. , 342 F.3d 714, 725-26 

(7th Cir. 2003); Rockwell Graphic Sys., Inc. v. DEV Indus., Inc. , 925 F.2d 174, 179-80 

(7th Cir. 1991); Tax Track Sys. Corp. v. New Investor World, Inc., 478 F.3d 783, 787 (7th 

Cir. 2007)). 



                                                   -29-                                             6715
 


----------------------- Page 30-----------------------

                 Powercorp has produced some evidence about the value of its wiring and 



 programming information to its business and to its competitors, the amount of effort or 



 money   expended   in   developing   the   programming   and   wiring   information,   and   how 



 difficult it would be for others to properly acquire or duplicate the same information and 



 methods.     Powercorp has asserted that it "developed [its] version of the Woodward 



 GCP-31   (known   as   the   GSS)   controller   over   years        of   working   with   Woodward's 



 predecessor,   Leonhard-Reglenau,"   and   that   "nobody   but   Powercorp   and   Woodward 



 knew what expanded functions it could do."  These assertions are roughly supported by 



 the affidavit of Gavin Bates, which alleges that during the development of the GSS 



 controller, Powercorp and Woodward shared "the understanding that the features we, 



 Powercorp, have paid for will not be incorporated in the version available to the general 



 public." 



                By     sending     its  confidentiality    agreement      to   the  Energy     Authority, 



Powercorp made an effort to keep its information secret.50                 The fact that Zimmerman 



disclosed key information to Noonan in March, several months before the agreement was 



signed, does not necessarily mean that Powercorp acted unreasonably in its attempt to 



keep    the   information     secret.   Taking     the  evidence     in  the  light  most    favorable    to 



Powercorp,       we   assume     that  Powercorp       believed    that  Noonan      was   aware    of  the 



information's   sensitive   nature   by   virtue   of   the   parties'   relationship   and   in   light   of 



Powercorp's   sending   the   confidentiality   agreement   to   the   Energy   Authority.          In   his 



affidavit, Zimmerman asserts that he believed Noonan "was asking for particulars on how 



         50      Id. ( "[I]n determining whether a claimant took reasonable steps to protect 



 information as a trade secret, 'the presence or absence of confidentiality agreements or 

 other means to convey confidentiality . . . has a significant and predictable bearing on the 

 outcome of the case.' ") (quoting CMBB LLC v. Lockwood Mfg., 628 F. Supp. 2d 881, 

 885 (N.D. Ill. 2009)). 



                                                   -30-                                              6715
 


----------------------- Page 31-----------------------

the   Powercorp   system   worked   because   he   was   evaluating   our   system   for   purchase." 



Although Zimmerman did not secure Noonan's signature on the agreement at the meeting, 



and there is no indication that Zimmerman mentioned confidentiality to Noonan before 



their   discussion,   it   was   reasonable   for   Zimmerman   to   respond   openly   to   Noonan's 



questions,   considering   that   the   Energy   Authority   planned   to   evaluate   the   Powercorp 



system and had to follow strict protocols to maintain impartiality during the procurement 



process.      The    nature   of   the  government-bidder        relationship     counsels    in  favor    of 



Powercorp's position that the information was a trade secret.51 



                 In light of this evidence, and despite some reservations,52 we conclude under 



         51       See Wilkes v. Pioneer Am. Ins. Co. of Fort Worth, 383 F. Supp. 1135, 1141 



 (D.S.C.   1974)   (identifying   "a   limited   degree   of   confidentiality   [that   is]   inherent   in 

 dealings with [government] officials"); but see Eli Lilly & Co. v. Envtl. Prot. Agency, 615 

 F. Supp. 811, 820 (D.C. Ind. 1985) (concluding that parties who submitted trade secret 

 pesticide data to the Environmental Protection Agency prior to the enactment of a law 

 that guaranteed confidentiality could not expect such confidentiality). 



         52       There    are   two   strong   arguments      that  counsel    against   the   conclusion 



 Powercorp has produced sufficient evidence of reasonable efforts to maintain secrecy. 

 First,   there   is   no   indication   that   Powercorp   did   anything   between      May    2004    and 

 September 2004 to remind the Energy Authority of the secret nature of Powercorp's 

 information. May 2004 is when the Energy Authority released the bid specifications for 

 REG 04-230.  According to Powercorp's own theory of the case, the release of these bid 

 specifications should have alerted Powercorp to the possibility that secret information 

 had been disclosed.        But there is no indication that Powercorp contacted the Energy 

 Authority to limit the spread of this information. 



                  Second,   Powercorp   has   left   significant   gaps   in   its   development   of   the 

 evidence in this case.        Powercorp has not put into the record evidence of its general 

 information-security practices, including information about the number of employees 

 who   have   access   to   the   Woodward   programming/wiring   information,   whether   that 

 information is available to a limited category of employees, or any regular protocols - 

 such as confidentiality agreements, passwords, and locked premises - that might help 

                                                                                            (continued...) 



                                                    -31-                                              6715
 


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

Alaska's generous summary judgment standard that there is a genuine issue of fact about 



the   existence of a trade secret.      There is sufficient evidence in the record to support 



Powercorp's position that it derived economic value from a method of programming or 



wiring a Woodward controller, which was not readily ascertainable by others. 



                However, we reject the argument that simply using a Woodward controller 



constitutes a trade secret.  It is undisputed that some Woodward controllers, the GCP-30 



series, are "sold and distributed throughout the world."              The superior court properly 



summarized the evidence in the record when it stated that Woodward "has no problem 



with discussing . . . how to use [these] devices and how to work with and modify them 



to accomplish the purpose that the consumer is looking for."                And Woodward makes 



available at least some information about how to wire its controllers.  Powercorp argues 



that certain key pieces of information - such as the idea to leave the X4 and X5 terminals 



        52      (...continued) 



 to   limit   access   to   this   information. Evidence   of   these   internal   information-security 

 practices commonly appears in courts' evaluations of trade secret claims.                   See, e.g., 

 Cerner Corp.,  667 F. Supp. 2d at 1077-78 ("Visicu required [non-disclosure agreements] 

 and labeled the documents as confidential and proprietary information.                  Additionally, 

 while Visicu made sales presentations for its eICU solution and attended trade shows, 

 Visicu did not make handouts available absent a [non-disclosure agreement]."); Crane 

 Helicopter Servs., Inc. v. United States , 56 Fed. Cl. 313, 325-26 (Fed. Cl. 2003) ("The list 

 of precautions taken by Bell to protect its trade secret information, as described in Mr. 

 McCrary's   unrefuted   affidavit,   is   sufficient   to   meet   this   requirement."); Reingold   v. 

 Swiftships, Inc., 126 F.3d 645, 650 (5th Cir. 1997) ("[D]uring his ownership of the mold 

 Reingold maintained exclusive control and did not disclose it to or allow its use by 

 anyone prior to leasing it to Swiftships.").        This information relates directly to the first 

 three factors identified above. Although the parties seem to agree that the GSS controller 

 was   manufactured   under   license   from   Woodward,   Powercorp   has   not   produced   the 

 licensing agreement or other evidence of Woodward's specific obligations under the 

 agreement that would support the limited availability of this information.  Powercorp is 

 not required to produce evidence of all six factors to survive summary judgment, but the 

 gaps in its evidence are apparent. 



                                                  -32-                                            6715
 


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

vacant - were not generally available.            The idea to leave certain terminals vacant and 



related programming methods may be relatively unknown.  It is also reasonable to infer 



that any information known to Woodward as a result of its GSS licensing agreement with 



Powercorp was generally unknown.             But it is unreasonable to infer from the record that 



the   idea   to   use   a   Woodward   controller  was   not   ascertainable   by   others.   Insofar   as 



Powercorp alleges that its trade secret covers the general use of, or access to, a Woodward 



controller, its trade-secret claim fails. 



                2.      Misappropriation 



                For Powercorp's claim to survive, Powercorp must also produce evidence 



of misappropriation.53      The Trade Secret Act defines "misappropriation" as follows: 



                (A) acquisition of a trade secret of another by a person who 

                knows      or  has  reason    to  know    that  the   trade  secret   was 

                acquired by improper means; or 



                (B)  disclosure   or   use   of   a   trade   secret   of   another   without 

                express or implied consent by a person who 



                (i) used improper means to acquire knowledge of the trade 

                secret; or 



                (ii) at the time of disclosure or use, knew or had reason to 

                know that knowledge of the trade secret was derived from or 

                through a person who had utilized improper means to acquire 

                it or who owed a duty to the person seeking relief to maintain 

                its   secrecy     or   limit   its  use,   or   was    acquired     under 

                circumstances giving rise to a duty to maintain its secrecy or 

                limit its use; or 



                (iii) before a material change of the person's position, knew or 



         53      See Utah Med. Prods., Inc. v. Clinical Innovations Assocs., 79 F. Supp. 2d 



 1290, 1311 (D. Utah 1999) (internal citations omitted). 



                                                   -33-                                               6715 


----------------------- Page 34-----------------------

                had    reason    to  know    that  it  was   a  trade   secret  and   that 

                knowledge of it had been acquired by accident or mistake[.][54] 



The statute provides that " 'improper means' includes theft, bribery, misrepresentation, 



breach or inducement of a breach of a duty to maintain secrecy, or espionage through 

electronic or other means."55 



                Powercorp   has   asserted   that   the   bid   specification   for   ITB   REG   04-230 



disclosed   to   Controlled   Power   key   information   that   Noonan   had   learned   about   the 



Woodward component and how to connect it.  But there is no indication in the record that 



this bid specification contained secret information.   The bid specification required use of 



a Woodward controller.   Even if Noonan were responsible for releasing this information 



and the bid specification provided Controlled Power with the idea to use the GCP-31, the 



communication of that idea does not violate the trade secrets statute. 



                 Powercorp's main argument under the "misappropriation" prong seems to 



be    that  it  is  inconceivable    that   Controlled    Power     would    have   developed     remote 



monitoring capability without improper access to Powercorp's secret information, which 



it   must   have   obtained   through   Noonan.     At   oral   argument   before   the   superior   court, 



Powercorp emphasized that it took years to develop its unique wiring and programming 



method for use with the Woodward GSS controller.  Powercorp contrasted this with the 



relatively short period in which Controlled Power learned to wire and program a GCP 



controller for the RPSU contract.  Controlled Power admits that its engineers figured out 



how     to  wire   a  Woodward       GCP    controller   in  response    to  the   Energy    Authority's 



specification of that device for the REG 04-230 contract.               But the fact that Controlled 



Power   was   able   to   use   a   Woodward   controller   does   not   compel   the   conclusion   that 



         54      AS 45.50.940(2). 



         55      AS 45.50.940(1). 



                                                   -34-                                               6715 


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

Noonan made an improper disclosure to Controlled Power in this case.                      The superior 

court properly declined to make this inference.56 



                Powercorp has not presented sufficient evidence to support the inference that 



Noonan acquired information through "improper means" or that Noonan "knew or should 



have   known"   that   he   improperly   obtained   a   secret.   According   to   Powercorp's   own 



allegations, it freely disclosed information to Noonan at a March 2003 meeting.  Thus, 



there is no indication that Noonan acquired the information by improper means.                   Absent 



evidence   that   Noonan   acquired   the   information   by   improper   means,   Powercorp   must 



provide evidence to support the inference that Noonan used or disclosed information that 



he   either   knew   or   should   have   known   was   secret.    The   closest   evidence   to   which 



Powercorp   might   point   is   the   confidentiality   agreement   that   was   sent   to   the   Energy 



Authority in January 2003.        But it is not clear from the record that Noonan had actually 



seen this agreement. Nor is there any evidence that Zimmerman put Noonan on notice that 



they would discuss secret Powercorp methods.               And there is no evidence that Noonan 



disclosed wiring or programming information to Controlled Power or any other party. 



Because      Powercorp      has    not   supported     its  allegation   that   Noonan      engaged     in 



misappropriation, we affirm the superior court's decision to dismiss Count IV. 



         56      See Kewanee Oil v. Bicron Corp., 416 U.S. 470, 476 (1974) ("A trade 



 secret law . . . does not offer protection against discovery by fair and honest means, such 

 as by independent invention, accidental disclosure, or by so-called reverse engineering, 

 that is by starting with the known product and working backward to divine the process 

 which aided in its development or manufacture."); see also Burns v. Erving , 810 F. Supp. 

 2d 1167, 1172 (D. Nev. 2011) (in rejecting plaintiffs' misappropriation of ideas claim, 

 court emphasized plaintiffs offered no evidence, other than their own disbelief, that 

 defendant took or used their idea in any way rather than creating the relevant marketing 

 campaign on his own). 



                                                  -35-                                             6715
 


----------------------- Page 36-----------------------

        G.	     It   Was   Not   Error   To   Dismiss   Count   V   -   Powercorp's   Claim   That 

                Controlled Power Misappropriated A Trade Secret. 



                Count V of the complaint alleges that Controlled Power misappropriated a 



Powercorp trade secret and that Controlled Power was unjustly enriched as a result.  For 



this claim to survive summary judgment, Powercorp must produce either evidence of 



"improper acquisition" under AS 45.50.940(2)(B)(i) or evidence that Controlled Power 



"knew     or   had  reason   to  know"   that   it   had  received  and   used   a  trade  secret   under 



AS 45.50.940(2).       This evidence is not before us.      There is no indication that Controlled 



Power     adopted    Powercorp's      unique   wiring    or  programming      method     or  used   this 



information   in   any   way.  Powercorp   has   not   produced   evidence   that   would   rebut   the 



assertions of Controlled Power employees that they were able to wire the GCP controller 



based on information they obtained from Woodward.   While Woodward's willingness to 



disclose some information about its GCP controllers does not undercut the conclusion that 



Powercorp's method of wiring and programming constituted a trade secret, the availability 



of this information is at odds with Powercorp's argument that Controlled Power could not 



have devised a legitimate wiring method within several months.                It is not reasonable to 



infer   that  Controlled    Power    obtained    Powercorp's     secret  wiring    and  programming 



information through unlawful misappropriation. We affirm the superior court's decision 



to dismiss Count V. 



        H.	     It Was Not Error To Dismiss Count VIII - Powercorp's Claim That 

                Controlled Power Illegally Colluded With Gray And Noonan. 



                Count VIII alleges that Controlled Power colluded with Noonan and others 



to increase costs and obstacles to other prospective bidders.            Powercorp alleged that, as 



a result of this collusion, the invitation to bid included "a short delivery requirement" with 



which   only   Controlled   Power   could   comply   and   that   Controlled   Power   was   able   to 



comply with this requirement only as a result of its contacts with defendants Noonan and 



                                                 -36-	                                           6715
 


----------------------- Page 37-----------------------

Gray.    The complaint also alleges that only Controlled Power "was able to reduce the 



performance bond requirement." 



                Powercorp mentions Count VIII only once in its opening brief.                Count VIII 



is not clearly addressed in Powercorp's statement of the issues or statement of points on 



appeal.     And     Powercorp's      brief   does   not   directly   address    the  short   delivery    or 



performance-bond requirements mentioned in this part of the complaint.                   We are unable 



to discern, and thus unable to address, an argument here. We conclude that Powercorp has 



waived this argument.57 



                Powercorp       also   fails  to  explain   how    alleged    deficiencies    in  the  bid 



specification could result in any liability for Controlled Power. If this is a claim of tortious 



interference,   it   fails   for   the   reasons   discussed   in   Part   IV.E. To   the   extent   that   the 



allegations   in   Count   VIII   advance   a   different   argument,   we   consider   such   argument 

waived.58 



        I.       No Procedural Ruling Of The Superior Court's Constitutes Abuse Of 

                Discretion. 



                Powercorp also raises the following points on appeal:  (1) The superior court 



erred in precluding Powercorp from deposing Energy Authority employees Lenny Landis 



and Bob Havemeister on Powercorp's trade secret claim against Noonan or any other 



issue; (2) the superior court erred in granting Controlled Power summary judgment on the 



grounds of failure to identify a trade secret when Powercorp had moved for a protective 



order to prevent further unauthorized disclosure of a trade secret; and (3) the superior 



court   erred   in   denying   Powercorp's   motion   to   compel   Controlled   Power   to   produce 



correspondence between it and the other defendants.              Each of these arguments fails. 



         57      See supra note 40. 



         58      Id. 



                                                   -37-                                               6715 


----------------------- Page 38-----------------------

                As to the first argument, Alaska Civil Rule 26(b)(1) provides: 



                Parties    may    obtain    discovery    regarding     any   matter,   not 

                privileged which is relevant to the subject matter involved in 

                the pending action, whether it relates to the claim or defense 

                of the party seeking discovery or to the claim or defense of 

                any   other   party   .   .   .   .   The   information   sought   need   not   be 

                admissible      at  the  trial  if  the  information    sought   appears 

                reasonably calculated to lead to the discovery of admissible 

                evidence. 



This standard authorizes the parties to seek substantial amounts of information, but it 



requires parties to act reasonably.  Whether information is "reasonably calculated to lead 



to the discovery of admissible evidence" depends on the circumstances of the case, and 



this question is entrusted to the discretion of the trial judge:59 



                Under Civil Rule 26(b)(2), the superior court may limit the use 

                of discovery methods such as depositions if it determines that 

                the burden or expense of the proposed discovery outweighs its 

                likely benefit, taking into account the needs of the case, the 

                amount in controversy, the parties' resources, the importance 

                of the issues at stake in the litigation, and the importance of 

                the proposed discovery in resolving the issues.[60] 



                The underlying facts of this case were in dispute as early as June 2004 when 



Powercorp protested the REG 04-230 invitation to bid.                 Before the complaint was filed 



in this case, Landis, Havemeister, and Noonan had testified in administrative proceedings 



concerning Powercorp's REG 04-230 and REG 05-670 bid protests.                        The complaint in 



this case was filed in August 2006.  The first motion seeking to dismiss claims was filed 



in February 2008.      Motions seeking to dismiss the other claims followed. 



         59      Lee v. State , 141 P.3d 342, 347 (Alaska 2006). 



         60      Prentzel v. State, Dep't of Pub. Safety , 169 P.3d 573, 594 (Alaska 2007) 



 (citing Alaska R. Civ. P. 26(b)(2)(A)(iii)). 



                                                   -38-                                               6715 


----------------------- Page 39-----------------------

                Controlled Power filed its motion for summary judgment in March 2008. 



In   November,   following   an   extension,   Powercorp   opposed   the   motion   for   summary 



judgment and sought a protective order.          Controlled Power filed its reply in December, 



making the motion ripe for resolution by the superior court, which held oral argument in 



February 2009.       In the 11 months before the court ruled on the motion for summary 



judgment,   Powercorp   was   engaged   in   a   series   of   discovery   disputes   with   Controlled 



Power.    At the February hearing, Powercorp argued that it should not be required to go 



to Controlled Power headquarters to examine voluminous discovery documents, which 



were the subject of earlier orders to compel.  At the hearing, the court granted Controlled 



Power's motion for summary judgment and rejected, as moot, Powercorp's argument 



about the voluminous discovery. The court later explained that asking Powercorp to bear 



the   costs  of   copying   was   reasonable.    This    discovery    ruling  was   not  an   abuse   of 



discretion. 



                Although it dismissed the claims against Controlled Power, the court granted 



Powercorp's   protective   order   at   the   February   hearing.   Granting   Controlled   Power's 



motion for summary judgment on the same day as the protective order was not an abuse 



of discretion in light of that fact that the motion for a protective order was filed well after 



the issues addressed on summary judgment had become evident. 



                After the February 2009 hearing, the only remaining claim alleged trade- 



secret misappropriation by Noonan.  Then, between March 19 and 25, 2009, Powercorp 



apparently contacted the Energy Authority about deposing Noonan,                   Havemeister, and 



Landis.    On March 26, the Energy Authority asked Powercorp to explain the relevance 



of the Havemeister and Landis depositions to the remaining claim.                 On the same day, 



Powercorp provided barely two weeks notice that it planned to depose Havemeister and 



Landis on April 7, 2009.       Asserting that Powercorp did not respond to its request for an 



explanation, the Energy Authority then sought a protective order to prevent the Landis 



                                                 -39-                                            6715
 


----------------------- Page 40-----------------------

and   Havemeister   depositions   from   going   forward   and   made   a   request   for   expedited 



consideration. 



                On April 1, 2009, the court issued an order, which stated: 



                The Court . . . does not currently see a reason for the plaintiff, 

                Powercorp's       scheduling    such    short  fused   depositions.    If 

                Powercorp       has   compelling      reasons    for  conducting      the 

                depositions     of  the  [Energy     Authority]    employees     on   the 

                proposed schedule, it can state those reasons and provide its 

                responses to the underlying motion by the close of business 

                Friday,   April   3,   2009.   If   there   is   no   need   to   conduct   the 

                depositions on April 7, 2009, the plaintiff can respond to the 

                underlying motion in due course. 



The parties continued to exchange correspondence on the issue of Landis's deposition in 



late August 2009, when the Energy Authority stated that Landis would be available for 



a deposition in September. In the meantime, Powercorp's opposition to Noonan's motion 



for summary judgment had come due.             The superior court had granted an extension on 



the opposition in April.   But it denied a motion to extend the deadline further under Rule 



56(f).   Powercorp argued that by denying the second extension, the court "effectively 



granted the motion to quash the depositions."           Powercorp claims that without Landis's 



deposition, Noonan would "have his scapegoat"; by this, Powercorp seems to mean that 



Noonan could blame Landis for any errors in the procurement process.   The final claim, 



alleging trade secret misappropriation against Noonan, was dismissed at a hearing in 



September 2009, almost three years after the complaint was filed.                The court's decision 



to dismiss this claim - after three years of litigation and several extensions - was not 



premature, and it was not an abuse of discretion. 



V.      CONCLUSION 



                For the reasons discussed above, we AFFIRM the decision of the superior 



court. 



                                                  -40-                                            6715
 


----------------------- Page 41-----------------------

WINFREE, Justice, dissenting in part. 



               I agree with the court's conclusion to reverse the trial court's summary 



judgment ruling to the extent it was based on the doctrines of collateral estoppel and res 



judicata.  But I am unable to agree with the court's conclusion to affirm at least a portion 



of that ruling on the alternative ground of qualified immunity for Ron Miller.         Official 



immunity was never raised in the summary judgment motion practice in the trial court, 



no party had reason to submit evidence on Miller's bad faith during that motion practice, 



the trial court did not consider or rule on qualified immunity for Miller in that motion 



practice, and there was no reason to appeal from a qualified immunity decision not made 



by the trial court.  I therefore find procedural unfairness in the court's conclusion that 



Miller's alleged bad faith is "unsupported by the record [and] waived due to inadequate 



briefing." I would remand the immunity question for resolution by the trial court after the 



parties have had a fair opportunity to make an evidentiary record on the question. 



               I  also  would    reverse  the  trial  court's  summary    judgment    ruling  on 



Powercorp Alaska, LLC's trade secret misappropriation claims against the Alaska Energy 



Authority defendants and Controlled Power, Inc.           In   my   view there are a number of 

genuine issues of material fact barring summary judgment on these claims.1  This would 



obviate the need to decide Powercorp's assertion of procedural errors in connection with 



the dismissal of those claims. 



               I otherwise agree with today's decision. 



         1      I take no position on the court's statement of the relevant law for the trade 



 secret misappropriation claims; cf. Alaska Appellate Rule 106 (stating that decision on 

 issue by two of three justices does not create binding precedent). 



                                              -41-                                          6715 

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