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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rude v. Cook Inlet Region, Inc. (12/21/2012) sp-6737

Rude v. Cook Inlet Region, Inc. (12/21/2012) sp-6737

        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 



ROBERT W. RUDE and NEW                          ) 

ALLIANCE FOR THE FUTURE OF                      )       Supreme Court Nos. S-13823/13943 

CIRI, INC.,                                     )       (Consolidated) 

                                                ) 

                        Appellants,             )       Superior Court No. 3AN-08-07998 CI 

                                                ) 

        v.                                      )       O P I N I O N 

                                                ) 

COOK INLET REGION, INC.,                        )       No. 6737 - December 21, 2012 

                                                ) 

                        Appellee.               ) 

                                                ) 



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

                Judicial    District,   Anchorage,      Frank    A.  Pfiffner,   Judge, 

                Peter G. Ashman and Morgan Christen, Judges pro tem. 



                Appearances:       Fred W. Triem, Petersburg, for Appellants. 

                Jahna M. Lindemuth and Katherine E. Demarest, Dorsey & 

                Whitney LLP, Anchorage, and William D. Temko, Munger, 

                Tolles & Olson LLP, Los Angeles, California, for Appellee. 



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

                Stowers, Justices. 



                FABE, Justice. 



I.      INTRODUCTION 



                In 2008 Robert Rude, then a sitting Cook Inlet Region, Inc. (CIRI) director, 



and three other candidates ran as an independent "New Alliance" slate for positions on 



the CIRI board of directors. Shortly before the election, CIRI filed suit, claiming that the 


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New Alliance proxy materials contained materially misleading statements. Rude and his 



co-defendants counterclaimed, alleging that CIRI's election procedures were unfairly 



tilted toward the interests of the current board and that the directors had improperly 



refused to disclose shareholder and corporate information to Rude and the other New 



Alliance candidates.      The superior court granted summary judgment on all claims and 



counterclaims in favor of CIRI.   As a result, the New Alliance proxies were voided, and 



Rude was not re-elected to the board.         Rude appeals the rulings both on CIRI's claims 



and his counterclaims.       Although Rude's claims are now technically moot, we address 



them   insofar   as   they   potentially   affect   prevailing   party   status. Because   no   issue   of 



material fact exists as to the claims at issue and because CIRI is entitled to judgment as 



a matter of law, we affirm the superior court. 



                In a separate appeal, Rude challenges four other rulings of the superior 



court.  First, he challenges the award of attorney's fees to CIRI.  Second, he challenges 



the superior court's denial of his Rule 60(b) motion for relief from judgment.   Third, he 



challenges the superior court's exclusion of exhibits filed with that motion.  Finally, he 



challenges the superior court's dismissal of New Alliance as a party to this suit.  Because 



the superior court did not abuse its discretion in any of these rulings, we affirm the 



superior court in all respects. 

II.     FACTS AND PROCEEDINGS1 



        A.      Background 



                Cook Inlet Regional, Inc. (CIRI) is an Alaska Native Claims Settlement Act 



(ANCSA) corporation organized under Alaska law.                  It is governed by a 15-member 



board of directors, serving staggered three-year terms.  Each year five director positions 



        1       When reviewing a grant of summary judgment, we construe the facts in the 



light most favorable to the non-moving party.  See McCormick v. City of Dillingham , 16 

P.3d 735, 738 (Alaska 2001). 



                                                  -2-                                              6737 


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

are up for election by the shareholders, and each year the board of directors recommends 

five candidates for the shareholders' vote and solicits proxies2  for those five candidates. 



In addition to the board's recommended slate, other candidates often run. 



        B.      Board Endorsement And Formation Of New Alliance Slate 



                For the 2008 elections, Robert Rude, as well as Dorothy J. Anagick, Chris 

Kiana,   and   Mike   Thomas,   ran   for   seats   on   the   board.3  Rude   was   at   that   time   an 



incumbent director whose term was set to expire at the annual meeting at which elections 



would   be held.      The other three candidates were not incumbent directors.                 All   four 



applied for board endorsement. At a March 2008 board meeting, the board selected five 

candidates, including Rude and Thomas, to be the board-recommended slate.4  One week 



later, the board voted to reconsider its selections and selected a new slate, this time 

without Rude or Thomas.5 



                Under CIRI's rules, individuals who wish to run for the board of directors, 



but who are not included in the board-endorsed slate, may still be included in CIRI's 



proxy     materials.     Such   individuals    are   listed,  along   with   their  photographs      and 



        2       3 Alaska Administrative Code (AAC) 08.365(12) (2012) defines proxy as 



"a   written   authorization    which    may    take  the  form   of   a  consent   .   .   .   signed  by  a 

shareholder . . . giving another person power to vote with respect to the shares of the 

shareholder." 



        3       Anagick, Kiana, and Thomas were parties to the initial lawsuit in this case 



but have since been dismissed. 



        4       The    board's    initial  slate  included,   in  addition   to  Rude    and   Thomas, 



incumbent directors Roy Huhndorf, Penny Carty, and Patrick Marrs. 



        5       The revised slate included incumbent directors Penny Carty, Roy Huhndorf, 



Patrick Marrs, and B. Agnes Brown, as well as Katrina Jacuk. 



                                                  -3-                                             6737
 


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

background   information,   in   CIRI's   proxy   statements;6        their   names   are   listed   on   the 



proxies; and their information and personal statements are included in the CIRI voter 



guide.  In 2008 three "other candidates" opted to be included in CIRI's proxy materials. 



Rude, along with Thomas, Kiana, and Anagick, chose not to be included in CIRI's proxy 



materials, instead opting to run as a slate under the aegis of the New Alliance for the 



Future of CIRI, Inc. (New Alliance). 



        C.      Proxy Solicitation 



                On March 28, 2008, New Alliance began soliciting proxies on behalf of the 

four candidates and for a New Alliance proposal for a special dividend of $50 per share.7 



Around the same time, Rude sent an email to CIRI President and Chief Executive Officer 



Margie Brown requesting that CIRI include in its proxies either New Alliance's proposal 



for a special dividend or a statement of how the CIRI board would vote its proxies on 



such a proposal. Brown declined both requests.  Brown also declined Rude's request for 



the email addresses of each CIRI shareholder. 



                Shortly   after   New   Alliance   sent   its   first   proxy   materials,   CIRI   filed   a 



complaint with the Division of Banking, Securities and Corporations, alleging that New 



Alliance's proxy solicitations contained false and misleading statements concerning, 



most importantly, CIRI's alleged failure to pay adequate dividends in the past.                   While 



CIRI, New Alliance, and the Division communicated back and forth regarding CIRI's 



        6       A proxy statement is "a letter, publication, press release, advertisement . . . 



or   other   communication   of   any   type   which   is   made   available   to   shareholders   under 

circumstances       reasonably    calculated    to  result   in  the  procurement,   withholding,   or 

revocation of a proxy."       3 AAC 08.365(14). 



        7       CIRI's annual shareholder meeting, at which elections would be held, was 



scheduled for June 7, 2008, with proxies due May 30. 



                                                   -4-                                             6737
 


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

complaint   to   the   Division,8   New   Alliance   continued   to   solicit   proxies   through   three 



additional   mailings   and   to   maintain   a   website   explaining   its   campaign   for   the   four 



candidates and for a special dividend. 



                These   additional   New   Alliance   mailings,   as   well   as   the   New   Alliance 



website,     contained    a  number      of  statements    which     CIRI   believed    to   be  false   or 



misleading.  These statements, described in more detail below, concerned, among other 



things,    management       compensation,      allegations    that  CIRI    had   "liquidated"    or  sold 



significant landholdings, shareholders' rights under Alaska law and ANCSA, CIRI's 



election procedures, and CIRI's dividend policy.               In CIRI's words, the statements as a 



whole gave the false impression that "[a]lthough CIRI as a corporation has done well in 



earning a profit over the years, the CIRI Board majority (and management) have refused 



to   share   the   corporation's   success   with   the   shareholders,   instead   keeping   the   vast 



majority of the net profits for themselves." 



                Meanwhile, starting in April 2008, CIRI began soliciting its own proxies. 



CIRI's first proxy solicitation included a proxy statement, including biographies of the 



board-endorsed candidates as well as three "other candidates." The proxy statement also 



included information about continuing directors (i.e., those not up for re-election) and 



corporate information, including information about the current board of directors and 



election    procedures.       The   enclosed    proxy    included    the  names    of  the   five  board- 



        8       The   alleged     misstatements   in    New     Alliance's   first   mailer   -   and  the 



procedural history of the dispute concerning those alleged misstatements - are not at 

issue in this appeal.      Because CIRI initially pursued its complaints concerning alleged 

misrepresentations        in  New    Alliance's    first  mailer   with   the   Division    of  Banking, 

Securities and Corporations, the superior court found that those claims upon which the 

Division ruled must be pursued as an administrative appeal, and therefore converted that 

portion of CIRI's complaint into an administrative appeal.               That appeal has apparently 

been stayed pending the resolution of this case. 



                                                   -5-                                              6737
 


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

recommended candidates, as well as the three "other candidates" and a blank line labeled 



"Write-In Candidates."       The proxy did not include a space for shareholders to vote on 



New Alliance's proposed special dividend. 



                CIRI's second proxy mailing, mailed approximately one week after the 



first, included a voter guide with more in-depth information about the eight candidates 



on the proxy, along with CIRI's annual financial report, a flyer in support of the board- 



endorsed candidates, and another proxy form with the same information as the first. 



CIRI subsequently sent two more mailings that included proxy forms and information 



supporting   its   endorsed   candidates.   Throughout   its   proxy   mailings,   CIRI   touted   its 



"Early Bird Prizes" - cash prize drawings for shareholders who returned proxies "for 



any proxy holder or candidate" before the May 30 deadline. 



        D.      The Lawsuit And The Election 



                On June 5, two days before the scheduled shareholder meeting, CIRI filed 



suit against Rude, Anagick, Kiana, Thomas, and New Alliance, alleging that their proxy 



materials contained numerous false and misleading statements.   The suit sought to void 



the New Alliance proxies. 



                Before the New Alliance candidates could respond, the shareholder meeting 



was held, and Rude and Thomas had the most votes to win election to the board.   At the 



meeting, Thomas proposed the special dividend of $50 per share, but it was defeated 



when CIRI voted its proxies against the measure. 



                Following   the   election,   the   New   Alliance   candidates   answered   CIRI's 

complaint   and   filed   numerous   counterclaims.       In   its   counterclaims,   New   Alliance9 



alleged generally that CIRI's election procedures were unfair because CIRI favored its 



        9       We refer to the New Alliance candidates collectively as New Alliance, 



except where more specificity is required. 



                                                 -6-                                             6737 


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slate of candidates over the New Alliance candidates. New Alliance also counterclaimed 



that CIRI's proxy forms were deficient because CIRI mailed the first forms before it 



distributed its financial report, CIRI failed to put enough slots on the proxies for write-in 



candidates, CIRI omitted the names of the New Alliance candidates from its proxy forms 



and   materials,   and   CIRI   failed   to   inform   shareholders   of   the   New   Alliance   special 



dividend proposal or give shareholders a way to vote on it.   Rude also alleged that CIRI 



omitted his name from proxy materials despite the fact that he was a current director, and 



that this omission amounted to de facto removal from the board.  Finally, New Alliance 



counterclaimed that CIRI improperly refused the New Alliance candidates' requests for 

lists of shareholders' names and phone numbers.10 



                CIRI moved for summary judgment on its claims against New Alliance. 



New Alliance moved for partial summary judgment on its counterclaims against CIRI, 



and CIRI filed a cross-motion for partial summary judgment on the counterclaims.  The 



superior court granted summary judgment in favor of CIRI on both sets of claims. 



        E.      CIRI's Motion For Summary Judgment 



                In her ruling on CIRI's motion for summary judgment on the claims against 



New Alliance, pro tem Superior Court Judge Morgan Christen found that five sets of 



statements in New Alliance's proxy solicitation materials were misleading as a matter 



of law. 



                First, the superior court found materially misleading New Alliance's claims 



that CIRI's senior managers' compensation had increased by 32% between 2006 and 



2007   (as opposed to a 9.5% increase in shareholder dividends).                The superior court 



reasoned that these claims were misleading because the New Alliance numbers had 



        10      In its counterclaims, styled as 56 separate claims, New Alliance  suggested 



several other possible counterclaims which are not germane to this appeal and so are not 

described here. 



                                                  -7-                                              6737 


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

counted accruals under a long-term incentive plan that "were not fully vested and may 



never be paid."  The superior court further found that these statements were material as 



a matter of law "because a reasonable shareholder would consider it important when 



deciding how to vote if CIRI management's pay increased by 32% in one year." 



                 Second, the superior court found materially misleading New Alliance's 



claims   that   CIRI   was   being   "liquidated"   and   that   CIRI   land   entitlements   had   been 



reduced by 700,000 acres of surface and 1,000,000   acres of subsurface estate.  The 



superior court determined that these statements were misleading because there was no 



evidence   in   the   record   to   support   New   Alliance's   contention   that   CIRI   was   being 



liquidated or selling off such significant landholdings.  The superior court further found 



that New Alliance did not have a good-faith basis for such a belief.                The superior court 



found   that   these   statements   were   material   as   a   matter   of   law   "because   a   reasonable 



shareholder would of course consider it important when deciding how to vote if he/she 



understood that 700,000 acres of surface estate and 1,000,000 acres of subsurface estate 



had been liquidated without explanation." 



                 Third,   the   superior   court   found   materially   misleading   New   Alliance's 



statement that 



                 Section 2(b) of ANCSA says Natives shall have maximum 

                participation in decisions affecting their rights and property. 



                 We     believe   shareholder      participation    is  lacking    in  our 

                 corporation . . . .  Shareholders do not get to vote on: the sale 

                 of large ANCSA land and natural resource properties; large 

                 cash donations; the granting of CIRI owned stock to senior 

                 executives;     political   donations;     large  payments      made    to 

                 lobbyists     and   consultants;    nor   do   they   get   to  vote    on 

                 legislation that would affect the rights or property.  We want 

                 to change this! 



                                                    -8-                                              6737
 


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

The   superior   court   concluded   that   these   statements   were   misleading   because   they 



suggested that shareholders had a right to participate in CIRI's management decisions 



and    that  "the   board    [was]   improperly      denying    shareholders'      input   into  corporate 



governance."        Instead,   the   superior   court   noted,   "under   Alaska   law,      the   board   of 



directors, not shareholders[,] has the right to make . . . management and operational 



decisions."     The superior court found that New Alliance's statements to the contrary 



were material because "[t]here is a substantial likelihood that a reasonable shareholder 



would consider the statement about shareholders' voting rights important in deciding 



how to vote." 



                 Fourth,   the   superior   court   found   materially   misleading   New   Alliance's 



statements that "New Alliance candidates have to pay their own election expenses" and 



"[i]ndependent candidates . . . have to pay their own campaign expenses which often cost 



an   independent   candidate   tens   of   thousands   of   dollars   and,   if   elected,   they   are   not 



reimbursed       their  campaign      expenses."      The     superior    court   concluded     that   these 



statements were misleading because the New Alliance candidates could have had some 



of their campaign expenses paid for if they had chosen to follow CIRI's procedures for 



being included in CIRI's proxy materials as "other candidates" and because CIRI did pay 



for some of the expenses for Rude to attend an informational meeting for shareholders 



in Washington.  The superior court found that these statements were material as a matter 



of law because there was "a substantial likelihood that a reasonable shareholder would 



consider   th[ese]   statement[s]   important   in   deciding   how   to   vote   .   .   .   [because   they] 



perpetuate[d] the theme that minority board members are being treated unfairly by the 



majority." 



                 Fifth,   the  superior    court   found    materially    misleading     New    Alliance's 



statements      that  "never    again    will  a  hardcore    minority     of  6  directors    control   our 



corporation."   Although New Alliance claimed it was referring to one faction's de facto 



                                                    -9-                                               6737
 


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

control of the board, the superior court concluded that this statement was misleading 



because     "[a]   minimum   of   eight   of   the   fifteen   directors   is   required   to   command   a 



majority."    The superior court found that the statement was material as a matter of law 



because   "there   [was]   a   substantial   likelihood    that   a   reasonable   shareholder   would 



consider this statement important in deciding how to vote . . . because it implies that a 



'super minority' is somehow improperly controlling the corporation." 



                The superior court concluded that because the misrepresentations in New 



Alliance's   proxy   materials   were   sufficiently   "egregious,"   the   proxies   given   to   New 



Alliance "must be declared void."          Because the New Alliance proxies were declared 



void, Rude and Thomas, who had previously collected enough proxies to win election 



to the board of directors, were removed from their seats. 



        F.	     New Alliance's Motion For Summary Judgment And CIRI's Cross- 

                Motion 



                On the same day that it granted CIRI's motion for summary judgment, the 



superior court also granted CIRI's cross-motion for partial summary judgment on New 



Alliance's     counterclaims     and   denied   New    Alliance's    motion    for  partial  summary 



judgment.      Based on its understanding of New Alliance's motion, the superior court 



identified eight claims in the motions before it, of which only the first five are raised in 



this   appeal.   Those   claims   were   whether   CIRI   violated   Alaska   securities   law   and 



common law proxy rules by: 



                (1)     sending     out  its  proxy   statement    and   proxy   to  the 

                shareholders before sending out its annual report; 



                (2)     failing to comply with the proxy requirements under 

                3 AAC 08.335; 



                (3)     failing to disclose material information on its proxy, 

                including   the   names   and   information   of   all   the   candidates 

                who were running for the board; 



                                                 -10-	                                           6737
 


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

                (4)     failing to provide sufficient space on the proxy for the 

                shareholders to write in the names of other candidates; [and] 



                (5)     failing    to  disclose   New    Alliance's     proposal    for  a 

                special dividend and to provide a way   for   shareholders to 

                vote on it; . . . . 



As to the first issue, the superior court noted: 



                Alaska proxy regulation 3 AAC 08.345 provides: 



                (a)     The solicitation of proxies on behalf of the board for 

                an annual meeting must be preceded or accompanied by the 

                annual report for the corporation's last fiscal year, unless 



                        (1)     the solicitation is made on behalf of the board 

                before the annual report is available; 



                        (2)     solicitation     is  being    made    at   the  time    in 

                opposition to the board; and 



                        (3)     the    board's     proxy     statement     includes    an 

                undertaking to furnish the annual report to all shareholders 

                being solicited at least 50 days before the date of the annual 

                meeting.    (Emphasis added by superior court.) 



                The superior court found that all three of these requirements had been met. 



The superior court noted that CIRI had filed a sworn statement that its financial statement 



was not yet ready when CIRI sent its first proxy mailing.  The superior court found that, 



although New Alliance asserted that CIRI had the necessary information to publish its 



annual report before it solicited proxies, there was no evidence to support this, and the 



superior court therefore determined that CIRI had met the first prong. The superior court 



then noted that there was no dispute that CIRI had satisfied the second prong.  Finally, 



the superior court noted that CIRI's initial proxy statement included an undertaking to 



furnish the annual report to shareholders at least 50 days before the annual meeting. 



Although New Alliance alleged that voters should not be asked to vote before they have 



information that a reasonable shareholder would view as significant in deciding how to 



                                                  -11-                                             6737
 


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

vote, the superior court found that Alaska law specifically permitted CIRI to solicit 



proxies in response to New Alliance's solicitation and thus granted summary judgment 



to CIRI on this issue. 



                As to the second and third claims, New Alliance contended that CIRI's 



proxies should be voided because the proxy statement and voter guide failed to disclose 



the names of all candidates running for the board and because they failed to disclose that 



Rude was a member of the board of directors running for re-election.                   But the superior 

court concluded that Alaska proxy regulation 3 AAC 08.345(b),11 which governs proxy 



statements, did not require CIRI to do either and that CIRI had in fact provided the New 



Alliance candidates a way to be included in the proxy materials.                Further, in its cross- 

motion, CIRI argued that its proxy fully met the requirements set out in 3 AAC 08.335,12 



        11      3 AAC 08.345 provides: 



                (b)     The solicitation of proxies on behalf of the board must 

                be    preceded    or   accompanied      by   a  dated,   written   proxy 

                statement including, but not limited to, the following: 



                        (1)     if   action   is  to  be  taken   on   the  election    of 

                directors, a description of each nominee of the board who has 

                consented to act if elected and of each director whose term of 

                office   will   continue   after   the   shareholders'   meeting   .   .   .   . 

                (Emphasis added.) 



        12      3 AAC 08.335 provides: 



                (c)     The proxy must 



                        (1)     indicate that the proxy is solicited on behalf of 

                the board or, if solicited other than by the board, indicate the 

                identity   of   the   persons   on   whose   behalf   the   solicitation   is 

                made; 



                        (2)     provide a specifically designated blank space for 

                dating the proxy; and 

                                                                                         (continued...) 



                                                  -12-                                             6737
 


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

and the superior court agreed.  The superior court therefore granted summary judgment 



to CIRI on this claim. 



                On the same claim, New Alliance argued that CIRI violated two common 



law proxy rules - the Equal Prominence Rule and the Buried Facts Rule - by giving 



Rude less prominence than other directors in CIRI proxy materials.   The superior court 



rejected this argument for two reasons.   First, the court noted that "when the legislature 



enacts a statute to govern a matter previously addressed by the common law, the statute 



controls," and therefore the proxy regulations discussed above, not common law rules, 



controlled.  Second, the court found that even if the common law rules were applicable, 



Rude was given the same treatment as other current directors in those parts of the proxy 



        12(...continued) 



                        (3)     provide a means for the shareholder to specify 

                by boxes a choice between approval or disapproval of each 

                matter or group of related matters identified in the proxy as 

                intended to be acted upon, other than the election of directors. 

                . . . . 



                (e)     A proxy that provides for the election of directors must 



                        (1)     set out the names of the nominees for whom the 

                proxy is solicited; and 



                        (2)     clearly provide one of the following: 



                                (A)      a box opposite the name of each nominee 

                which may be marked to indicate that authority to vote for 

                that nominee is withheld; 



                                (B)      an instruction that the shareholder may 

                withhold authority to vote for a nominee by lining through or 

                otherwise striking out the name of that nominee; 



                                (C)      a "ballot" type of selection in which the 

                shareholder is permitted to award votes to selected nominees 

                of the shareholder's choosing. 



                                                  -13-                                             6737
 


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

materials   applying   equally   to   all   directors.  And   because   he   was   not   a   continuing 



director, a board-endorsed candidate, or an "other candidate," he was not included in 



those sections.     The superior court therefore concluded that CIRI did not violate the 



Equal Prominence Rule or the Buried Facts Rule. 



                As to the fourth claim, New Alliance argued that the write-in section of 



CIRI's proxies was insufficient and misleading because it only contained one blank line 



following the term "Write-In Candidates."            The superior court, though, found no legal 



authority for New Alliance's claim that proxies were required to have multiple write-in 



slots and further found that CIRI's use of the plural "candidates" would lead a reasonable 



voter to understand that it was permissible to write in more than one name.  The superior 



court consequently found that CIRI's write-in section complied with Alaska law. 



                Finally, the superior court concluded that CIRI's proxy was not required 



to disclose New Alliance's proposal for a special dividend, nor to provide a way for 



shareholders to vote on it.  The superior court concluded that the Alaska Securities Act 



required CIRI "to include a proposal in its proxy statement when the board intends to 



introduce a resolution to the shareholders" but that "[t]hird-party proposals which may 



or may not be introduced at an annual meeting are not required to be in a corporation's 



proxy and proxy statement."         Accordingly, the court concluded that CIRI did not have 



to include New Alliance's proposal in its proxy materials. 



                Although granting summary judgment to CIRI on CIRI's claims and on all 



of the counterclaims at issue in the cross-motions for partial summary judgment, the 



superior     court  issued   a  further  order   clarifying   that  it  had  dismissed    "only   those 



counterclaims that were the subject of the motion practice, not all of the defendants' 



counterclaims."      Nevertheless, Anagick, Thomas, and Kiana entered a stipulation and 



order dismissing with prejudice all counterclaims against CIRI on behalf of themselves 



                                                 -14-                                            6737
 


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

and   New   Alliance.     Accordingly,   Robert   Rude   was   left   as   the   only   defendant   and 



counterclaimant. 



        G.      CIRI's Final Motions For Dismissal And Summary Judgment 



                In August 2009, pro tem Superior Court Judge Peter G. Ashman, who had 



taken the case over from Judge Christen, ordered Rude to file a statement outlining any 



claims Rude had against CIRI which remained live.  When Rude failed to respond, CIRI 



moved      for  dismissal,   and   Rude    opposed.      The    superior   court   dismissed     Rude's 



counterclaims for failure to comply with the court's August 2009 order.                  The superior 



court also found that CIRI was entitled to dismissal "on substantive grounds," noting that 



Judge Christen's order on partial summary judgment had decided all of Rude's claims 



relating to CIRI's election procedures and that Rude's remaining claims concerning his 



demand for shareholders' information were now moot because Rude had been removed 



as a director. 



                Rude moved for reconsideration of the dismissal, and the superior court, 



though noting that Rude had offered no explanation for his failure to respond to the 



August 2009 order, granted the motion, specifying that it would treat CIRI's motion to 



dismiss as a motion for summary judgment.   The superior court limited briefing to what 



it   found   were   the   only   four   remaining   issues,   namely   Rude's   claims   that   (1)   CIRI 



unfairly    took   sides  in  elections    and  improperly      used   its  resources   to  support   its 



candidates;   (2)   "CIRI's   policies   and   practices   are   improperly   intended   to   entrench 



incumbents"; (3) CIRI refused to give Rude shareholder addresses and email addresses, 



information to which he was entitled as a director; and (4) CIRI refused to give Rude 



other corporate information to which he was entitled as a director.               The superior court 



gave CIRI an opportunity to supplement its motion as appropriate for summary judgment 



and for Rude to respond. 



                                                  -15-                                            6737
 


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

               In   January    2010,   after  hearing   oral  argument,    Superior   Court   Judge 



Frank A. Pfiffner, who had taken over the case from Judge Ashman, issued an oral 



decision granting CIRI's motion for summary judgment on the remaining counterclaims. 



               As to the first two issues, that CIRI took sides and their election policies 



entrench incumbents, the superior court concluded that they had been disposed of by 



Judge Christen's earlier order on CIRI's cross-motion for partial summary judgment. 



The superior court determined that once summary judgment was granted in favor of CIRI 



regarding the specific claims of unfair election practices, the more general claims were 



unsupported and fell away.       As to the second two issues, the superior court concluded 



that they were moot.  The superior court noted that AS 10.06.450(d) did grant directors 



the right to certain corporate information but found that because Rude's proxies were 



invalid, he did not win the election and so was not a director. 



               With regard to a fifth issue, that Rude was entitled   to   certain corporate 



information as a shareholder, the superior court rejected this argument for a number of 



reasons.   First, because this issue was outside the scope of the prior order outlining the 



remaining   issues, the court found that Rude had abandoned the claim.                Second, the 



superior    court   found   that  Rude   had   not  made    any   requests   in  his  capacity  as  a 



shareholder, but instead only in his capacity as a director.          Finally, the superior court 



determined that even if Rude made requests as a shareholder, any requests did not meet 



the statutory requirement of shareholder requests for information because the requests 



did not state "with particularity the purpose of the inspection, identifying that it was a 



proper purpose and that the documents were connected to an otherwise proper purpose" 



as   required   under   AS   10.06.430(b).    Although   the   superior   court   noted   that   Judge 



Christen had refused to grant summary judgment as to several of CIRI's claims that 



statements in the New Alliance proxy materials were misleading, the court, with CIRI's 



                                                -16-                                          6737
 


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

agreement, concluded that there were no issues remaining and ordered CIRI to draft a 



final judgment.     Rude moved for reconsideration, and it was denied. 



        H.      Post-Judgment Proceedings 



                The superior court ordered Rude to pay $43,773.80 in attorney's fees and 



$5,441.14 in costs, for a total monetary judgment of $49,214.94. 



                After filing a notice of appeal, Rude filed a motion for relief from judgment. 



Rude attached to his motion over 30 new exhibits.   CIRI opposed the motion and moved 



to strike the new exhibits.       The superior court granted CIRI's motion to strike the new 



exhibits, finding that they were irrelevant to the motion, untimely, and unauthenticated. 



The   superior   court   also   denied   Rude's   motion   for   relief   from   judgment,   ruling   that 



Rude's motion was not based on a mistake of law or newly discovered evidence as 



required by Alaska Civil Rule 60(b), but was rather a rehash of his earlier arguments and 



an attempt to introduce evidence that was unauthenticated and that had been available 



for timely introduction during the litigation. 



                Rude has filed two appeals.   In the first he appeals many of the substantive 



matters decided in the superior court's three orders on summary judgment. In the second 



he   challenges   four   procedural   matters:   (1)   the   superior   court's   award   of   costs   and 



attorney's fees to CIRI; (2) the superior court's denial of Rude's Rule 60(b) motion for 



relief from judgment; (3) the superior court's order striking exhibits attached to the 60(b) 



motion; and (4) the superior court's entry of a stipulation dismissing the New Alliance 



corporation as a party. 



                                                  -17-                                            6737
 


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

III.    STANDARDS OF REVIEW
 

                We review grants of summary judgment de novo.13               In reviewing a grant 



of summary judgment, we will "determine whether any genuine issue of material fact 



exists and whether the moving party is entitled to judgment on the law applicable to the 

established     facts."14  "Mere      assertions   of  fact  in  pleadings    and   memoranda       are 



insufficient   for   denial   of   a   motion   for   summary   judgment."15 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."16 



                We apply "the deferential 'reasonable basis' standard of review . . . where 



a question of law implicates [an] agency's expertise as to complex matters or as to the 

formulation of fundamental policy."17        "[W]here an agency interprets its own regulation 



. . . a deferential standard of review properly recognizes that the agency is best able to 

discern its intent in promulgating the regulation at issue."18 



        13      See Yost v. State, Div. of Corps., Bus. & Prof'l Licensing, 234 P.3d 1264, 



1272 (Alaska 2010). 



        14      Wright v. State, 824 P.2d 718, 720 (Alaska 1992). 



        15      State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska 1978). 



        16      Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006). 



        17      Rose    v.  Commercial      Fisheries    Entry    Comm'n ,     647   P.2d   154,   161 



(Alaska 1982). 



        18      Id. 



                                                 -18-                                           6737
 


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

                We will not reverse an award of attorney's fees,19  a denial of a Rule 60(b) 



motion for relief from judgment,20  a decision regarding the admissibility of evidence,21 



or a superior court's entry of a voluntary dismissal22 absent an abuse of discretion.  "An 



abuse of discretion exists when we are left with a definite and firm conviction that an 

error has been made."23 



IV.     DISCUSSION 



                These two appeals   encompass   a total of 12 primary issues.            Rude first 



brings six claims relating to CIRI's conduct of the election for the board of directors. 



The next two claims concern CIRI's refusal to turn over to Rude information about CIRI 



shareholders.     Rude   then   argues   that   the   superior   court   erred   in   granting   summary 



judgment on CIRI's claims that the New Alliance proxy materials contained material 



misrepresentations.     In his second appeal, Rude argues that the superior court erred by 



awarding   CIRI   attorney's   fees.    Finally,   Rude   brings   three   procedural   claims.   We 



address these arguments in turn. 



        19      See Valdez Fisheries Dev. Ass'n, Inc. v. Alyeska Pipeline Serv. Co., 45 P.3d 



657, 672 (Alaska 2002). 



        20      See Cook v. Cook, 249 P.3d 1070, 1077 (Alaska 2011). 



        21      See Carroll v. Carroll, 903 P.2d 579, 582 n.7 (Alaska 1995). 



        22      See Dome Labs. v. Farrell, 599 P.2d 152, 155-56 (Alaska 1979). 



        23      Marsingill v. O'Malley , 128 P.3d 151, 155 (Alaska 2006). 



                                                -19-                                           6737
 


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

        A.	     Rude's Counterclaims 



                1.	     Most of Rude's claims are technically moot and reviewable only 

                        for the purpose of determining prevailing party status for an 

                        award of attorney's fees. 



                CIRI argues that nearly all of Rude's election claims are moot because, 



owing to numerous delays in this case, the seats up for election in 2008 have since come 



up for election again.     Consequently, Rude's requested remedy - that CIRI's proxies 



for the 2008 election be voided - can no longer provide him any relief. 



                "A   claim   is moot where . . . it has lost its character as a present,   live 



controversy,  that is, where a party bringing the action would not be entitled to any relief 

even if he or she prevailed."24     In O'Callaghan v. State, the appellant sought to overturn 



the 1990 governor's election and have the State hold a new election.25               By the time the 



appeal   reached   this   court,   the   terms   of   office   of   the   candidates   elected   in   the   1990 

election had already run, and we therefore held that the appeal was moot.26 



                As we have recognized, though, an exception to the mootness doctrine 



exists through which technically moot claims can be reviewed if there is a strong public 



interest reason for doing so.  In order to determine whether the public interest exception 



applies, we ask 



                (1) whether the disputed issues are capable of repetition, (2) 

                whether the mootness   doctrine, if applied, may repeatedly 

                circumvent review of the issues and, (3) whether the issues 



        24      Clark v. State, Dep't of Corr., 156 P.3d 384, 387 (Alaska 2007) (internal 



quotation marks and citations omitted). 



        25      920 P.2d 1387 (Alaska 1996). 



        26      Id. at 1388-89. 



                                                 -20-	                                           6737
 


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

                presented are so important to the public interest as to justify 

                overriding the mootness doctrine.[27] 



                In Rude's case, because CIRI holds elections every year, his claims are at 



least capable of repetition.     Further, we may assume without deciding that the public 



interest in open, fully informed corporate democracy is so great as to justify overriding 



the mootness doctrine.   However, in this case the public interest doctrine does not apply 

because, like in O'Callaghan, "a timely election challenge [was] possible."28 



                The superior court granted summary judgment to CIRI on most of Rude's 



election counterclaims in May 2009. On July 17, 2009, the superior court held a hearing 



concerning the issues remaining following Judge Christen's initial summary judgment 



orders; Rude did not appear at this hearing, nor did he respond to the superior court's 



order compelling him to identify remaining counterclaims.              Accordingly, CIRI filed a 



motion to dismiss in October 2009.  Only then did Rude respond, but the superior court 



dismissed Rude's remaining claims in November 2009.                 Rude then filed a motion for 



reconsideration, and the superior court agreed to convert the motion to dismiss into a 



motion for summary judgment and give the parties time to brief the matter appropriately. 



On January 21, 2010, the superior court granted summary judgment on Rude's remaining 



counterclaims and a final judgment was entered on February 25.  On March 26, 2010 - 



when the candidates elected at the 2008 shareholder meeting still had more than one full 



year left in their terms - Rude filed a statement of points on appeal.             However, Rude 



filed repeated motions requesting more time, many of which were filed after due dates 



had run.   He ultimately filed his corrected brief on July 13, 2011, ten months after his 



brief was initially due and more than a month after the 2011 CIRI shareholders meeting. 



        27      Id. at 1389 (quoting Peloza v. Freas , 871 P.2d 687, 688 (Alaska 1994)). 



        28      Id. 



                                                 -21-                                             6737 


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

In short, Rude had ample time to contest the election results, and so the second prong of 

the public interest exception does not apply.29 



                Nonetheless, we have held that "where the outcome of an otherwise moot 



claim may 'change[] the status of the prevailing party and thus an award of attorneys' 

fees,' we reach the merits of that claim."30        Because in this case there has been an entry 



of   judgment   against   Rude   consisting   of   attorney's   fees   and   costs,   we   are   bound   to 



consider the merits of Rude's claims, though the only relief he seeks (aside from setting 



aside attorney's fees in his second appeal) is that CIRI's proxies be voided, his own 

counted, and the 2008 election results recounted.31          We review Rude's claims, however, 



        29      See Mullins v. Local Boundary Comm'n, 226 P.3d 1012, 1019 (Alaska 



2010) (comparing "the time it takes to bring the appeal with the time it takes for the 

appeal to become moot," and determining that the second prong of the public interest 

exception was not met because the time between the filing of a petition for incorporation 

and the incorporation election was not "insufficient to permit judicial review") (internal 

quotations and citations omitted). 



        30      Gold Country Estates Pres. Grp., Inc. v. Fairbanks N. Star Borough, 270 



P.3d 787, 795 (Alaska 2012) (quoting Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 

773, 777 (Alaska 2001)); see also Smallwood v. Cent. Peninsula Gen. Hosp., Inc., 227 

P.3d 457, 461 (Alaska 2010); Lamoureaux v. Totem Ocean Trailer Express, Inc. , 651 

P.2d 839, 840 n.1 (Alaska 1982). 



        31      In one line in his brief, without any citation to any legal authority, Rude 



asserts that he is owed either two or three years of unpaid director's fees for the time he 

was unfairly denied a seat on the board (pursuant to the superior court's order voiding 

Rude's proxies).       However, "where a point is given only a cursory statement in the 

argument portion of a brief, the point will not be considered on appeal." Adamson v. 

Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).               Rude also suggests, in a single 

clause in his brief and without any legal citation, that a further remedy is "to enjoin 

CIRI's     inequitable    election   practices   from   continuation."      Again,    such   a  cursory 

treatment of an issue is not considered on appeal.  Finally, Rude argues for the first time 

on appeal that an appropriate remedy "is to remove the entrenched directors and officers 

                                                                                        (continued...) 



                                                  -22-                                            6737
 


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

only to the extent that they may change the prevailing party determination.32 



                2.	     CIRI was not required to list the   names of the New Alliance 

                        candidates in its proxy materials. 



                Rude first argues that the superior court erred by determining that CIRI was 



not obligated to include the names of the New Alliance candidates in its proxy materials. 



Rude     points   to  two    federal   cases   from   outside    Alaska    for  the  proposition     that 



corporations bear the obligation to use their proxy materials to inform shareholders of 

non-board-endorsed candidates that the board knows to be running.33                He argues that by 



failing to disclose the names of the opposition candidates the board gave the impression 



that its candidates were unopposed and discouraged shareholders from voting. 



                CIRI responds that Alaska law does not require CIRI to list non-board- 



recommended candidates in its   proxy   materials.            CIRI also points out that under its 



election procedures Rude had the opportunity to appear in CIRI's proxy materials but 



        31(...continued) 



who have devised and implemented these schemes intended to maintain their grip on 

corporate control."  But we have said we "will not address for the first time on appeal an 

issue the appellant failed to raise below," and so this claim for relief is waived.  Alaska 

State Emps. Ass'n/AFSCME Local 52, AFL-CIO v. State, 74 P.3d 881, 886 (Alaska 

2003).    In   his   second   appeal,   aside   from   seeking   to   have   his   attorney's   fees   award 

reversed, Rude seeks to have the case remanded back to the superior court to have his 

Rule 60(b) motion reconsidered, to have his previously denied exhibits admitted, and to 

have New Alliance reinstated as a party.   But these remedies all relate to a claim that is 

now moot and so will not be considered by this court. 



        32      See Schweitzer v. Salamatof Air Park Subdivision Owners, Inc., 278 P.3d 



1267, 1273 (Alaska 2012) ("To determine the prevailing party and resolve the attorney's 

fees issue we need only review the superior court's holding on what we determine is the 

'main issue.' "). 



        33      Chambers v. Briggs & Stratton Corp., 863 F. Supp. 900 (E.D. Wis. 1994); 



Bertoglio v. Texas Intern. Co. , 488 F. Supp. 630 (D. Del. 1980). 



                                                  -23-	                                           6737
 


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

that   Rude   declined   the   offer   and   "cannot   now   complain   that   his   candidacy   was   not 



included." 

                 Rude relies primarily on Chambers v. Briggs & Stratton,34  a case from the 



Eastern District of Wisconsin, for his claim that CIRI was obligated to include the names 



of the New Alliance directors in its proxy materials. In Chambers, a corporation omitted 



the   name   of   a   duly   nominated   candidate   for   the   board   of   directors   from   its   proxy 



materials, and a shareholder sued, claiming the omission of the opposition candidate's 

information   was   a   material   misrepresentation.35        The   court,   interpreting   the   Federal 



Securities Exchange Act, agreed, finding that "opposition to the election of directors is 



a material fact" because "there is a substantial likelihood that a reasonable shareholder 



would regard the existence of opposition to the board's nominees for director important 

in deciding how to vote."36        CIRI replies that this case is not binding in Alaska and that 



"Alaska's      proxy    regulations    specifically    address    what   must    be  included     in  board 



solicitations" and do not require the inclusion of non-board-nominated candidates.  The 



superior court agreed, granting summary judgment to CIRI. 



                 As CIRI and the superior court point out, 3 AAC 08.345, which governs 



the contents of proxy materials, provides: 



                 (b)     The solicitation of proxies on behalf of the board must 

                 be   preceded     or  accompanied        by  a  dated,   written    proxy 

                 statement including, but not limited to, the following: 



                         (1)     if   action   is  to  be   taken   on   the  election    of 

                 directors, a description of each nominee of the board who has 



        34       863 F. Supp. 900 (E.D. Wis. 1994). 



        35      Id. at 902. 



        36      Id. at 905. 



                                                   -24-                                                 6737 


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

                consented to act if elected and of each director whose term of 

                office will continue after the shareholders' meeting. 



3 AAC 08.335, which governs the contents of proxies, provides: 



                (c)     The proxy must 



                        (1)     indicate that the proxy is solicited on behalf of 

                the board or, if solicited other than by the board, indicate the 

                identity   of   the   persons   on   whose   behalf   the   solicitation   is 

                made; 



                        (2)     provide a specifically designated blank space for 

                dating the proxy; and 



                        (3)     provide a means for the shareholder to specify 

                by boxes a choice between approval or disapproval of each 

                matter or group of related matters identified in the proxy as 

                intended to be acted upon, other than the election of directors. 



                . . . . 



                (e)     A proxy that provides for the election of directors must 



                        (1)      set out the names of the nominees for whom the 

                proxy is solicited; and 



                        (2)     clearly provide one of the following: 



                                (A)      a box opposite the name of each nominee 

                which may be marked to indicate that authority to vote for 

                that nominee is withheld; 



                                (B)      an instruction that the shareholder may 

                withhold authority to vote for a nominee by lining through or 

                otherwise striking out the name of that nominee; 



                                (C)      a "ballot" type of selection in which the 

                shareholder is permitted to award votes to selected nominees 

                of the shareholder's choosing. 



                The superior court is correct that 3 AAC 08.335, the section governing the 



proxies themselves, does not require CIRI to include non-board-nominated candidates 



like Rude in its proxies.   Subsection (e)(1) specifically requires that the proxy must "set 



                                                  -25-                                             6737
 


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

out the names of the nominees for whom the proxy is solicited."  (Emphasis added.)  The 



rule   contemplates   that   each   proxy   solicitor   will   only   solicit   its   own   proxies,   only 



requiring a solicitor to include its own candidates. Accordingly, CIRI should not be held 



to an obligation to solicit proxies on behalf of others. 



                As    to  3  AAC     08.345,    the  section    governing     the  contents    of  proxy 



statements, we addressed this exact issue last year and held that corporations are not 



required     to  include   in  their  proxy    statements    the  names     of  non-board-nominated 

candidates or non-continuing directors.37 



                Further, as both CIRI and the superior court note, CIRI in fact provided 



Rude and the other New Alliance candidates an opportunity to be included in the proxy 



statement, but they chose not to be included.            Rude now argues that they should have 



been included despite this previous refusal. But surely CIRI cannot be required to solicit 



a candidate's proxies against that candidate's will.  The superior court did not err by 



granting summary judgment to CIRI on this point. 



                3.	     CIRI's   selection   of   board-recommended   candidates   was   not 

                        improper. 



                Rude   next   argues   that   it   was   improper   for   the   board   to   hold   "a   closed 



primary   election"   in   which   a   board-endorsed   slate   was   chosen   without   shareholder 



participation.    To support his argument he cites to cases concluding that shareholders 



        37      Henrichs v. Chugach Alaska Corp. , 260 P.3d 1036, 1044 (Alaska 2011) 



("Chugach   was   not   required   to   include   the   former   directors   in   the   proxy   statement 

because the board did not nominate them.              And although Henrichs and Tabios were 

incumbent directors, Chugach was not required to include their names because their 

terms were scheduled to expire and therefore would not 'continue after the shareholders' 

meeting.' "). 



                                                  -26-	                                            6737
 


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

must be allowed to nominate candidates to oppose board-nominated slates.38  Here Rude 



and the New Alliance candidates were able to do just that, running as an independent 



slate opposed to CIRI's board-nominated candidates.                Rude cites no authority for the 



proposition that it is impermissible for a corporate board to recommend a slate, even 



while allowing an opportunity for other candidates to be nominated and to run.  Indeed, 



Alaska's proxy regulations, noting that a proxy may be solicited "on behalf of the board 

or . . . solicited other than by the board,"39 seem to assume that boards will be soliciting 



proxies for their recommended candidates.            CIRI's selection of a board-recommended 



slate was not impermissible. 



                4.	     CIRI     did   not   improperly      remove     Rude    from    the   board    of 

                        directors. 



                Rude   next   argues   that   CIRI   improperly   removed   him   as   a   director   by 



"taking him off the list of its current directors" in its statement.   This, he argues, violated 



CIRI's duty to disclose the names of its directors, exceeded CIRI's powers to punish a 



sitting director, violated common law rules of disclosure and candor, violated common 

law proxy rules, and amounted to common law fraud.40 



                The superior court correctly granted summary judgment on these claims. 



The fundamental flaw in Rude's contention is that his name was not removed from 



        38	     Goldstein v. Lincoln Nat'l Convertible Sec. Fund, Inc., 140 F. Supp. 2d 424 



(E.D.  Pa.   2001),  vacated   in   part,   appeal   dismissed   by   Goldstein   v.   Lincoln   Nat'l 

Convertible Sec. Fund, Inc., 2003 WL 1846095 (3d Cir. Apr. 2, 2003); Durkin v. Nat'l 

Bank of Olyphant , 772 F.2d 55 (3d Cir. 1985). 



        39      3 AAC 08.335(c)(1). 



        40      Rude   never   argued   common   law   fraud   in   the   superior   court,   and   we 



accordingly do not consider this argument.             See Alaska State Emps. Ass'n/AFSCME 

Local 52, AFL-CIO v. State , 74 P.3d 881, 886 (Alaska 2003) ("We will not address for 

the first time on appeal an issue the appellant failed to raise below."). 



                                                  -27-	                                           6737
 


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

CIRI's proxy statement.        As discussed above, CIRI was not required to list Rude as a 



candidate in its proxy statement, and so the omission of his name as a candidate cannot 

be considered removal.41        The proxy statement did, though, contain numerous sections 



in which all current directors were listed, and in each of those sections Rude's name was 



included   with   equal   prominence   as   his   fellow   directors.      In   the   section   discussing 



directors' compensation, Rude's name was listed in alphabetical order.                   In the section 



discussing committee assignments, Rude is listed as a member of two committees.  In 



short,   Rude's   name   was   not   omitted   from   CIRI's   proxy   materials,   and   so   summary 



judgment was appropriate on this point. 



                5.	      CIRI did not impermissibly solicit proxies before distributing its 

                         annual report. 



                Rude   next   argues   that   the   superior   court   erred   when   it   concluded   that 



"[u]nder these circumstances, the law permits CIRI to solicit proxies before issuing its 



2007 annual [financial] report." CIRI's proxy statement and first proxy were mailed 



approximately April 11, 2008.           About one week later, CIRI sent out a second mailer 



including a proxy and the corporation's 2007 annual report.               According to Rude, CIRI 



violated   both   common   law   disclosure   rules   and   Alaska   proxy   regulations   when   it 



solicited    proxies    before   informing     shareholders     about   the  financial   health   of  the 



corporation under its current directors.         To exacerbate the problem, Rude argues, CIRI 



"seduc[ed]" shareholders to vote before they had the financial report by offering "Early- 



Bird Prizes" for the prompt return of proxies. 



                The superior court rejected this argument, relying on 3 AAC 08.345(a). 



That regulation provides: 



        41      See supra Part IV.A.2. 



                                                  -28-	                                              6737 


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

                (a)    The solicitation of proxies on behalf of the board for 

                an annual meeting must be preceded or accompanied by the 

                annual report for the corporation's last fiscal year, unless 



                       (1)     the solicitation is made on behalf of the board 

                before the annual report is available; 



                       (2)     solicitation    is  being    made    at  the  time   in 

                opposition to the board; and 



                       (3)     the    board's    proxy    statement     includes    an 

                undertaking to furnish the annual report to all shareholders 

                being solicited at least 50 days before the date of the annual 

                meeting.   (Emphasis added.) 



The regulation provides an exception to the general rule that a proxy solicitation cannot 



precede a financial report.      Because there was no dispute as to the second and third 



prongs of the exception, the superior court focused on the first. Rude argued, as he does 



now, that the first prong was not satisfied because, although it is undisputed that the 



financial report was not available when CIRI sent out its first proxy mailing, CIRI had 



all the essential information it needed to compile the report well before its first mailing. 



The superior court correctly rejected this argument. 



                CIRI Vice President Barbara Donatelli filed a sworn affidavit stating that 



the report was not available when CIRI sent out its first mailing.             Rude counters that 



CIRI received its independent auditor's report on March 21, 2008, and therefore had 



enough time to produce its final report before   mailing its first proxy solicitation on 



approximately April 11.       But Rude's bare assertion that CIRI could have completed its 



financial report within approximately 20 days of the completion of the independent 



auditor's report does not create a genuine issue of material fact.  Summary judgment was 



therefore properly granted on this point. 



                                                -29-                                           6737
 


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

                6.	     CIRI     was    not  required     to  include    information      about    New 

                        Alliance's proposed special dividend in its proxy materials. 



                Rude next argues that the trial court erred in granting summary judgment 



on his claim that CIRI was required to disclose the New Alliance proposal for a special 



dividend and to allow shareholders a way to vote on it.   Several interlocking provisions 



of the Alaska proxy regulations govern whether board proxy materials must provide 



shareholders with a way to vote on proposals.            As a general matter, 3 AAC 08.335(d) 



provides that proxies can confer authority on proxy holders to vote on proposals only "if 



the proxy discloses how the shares represented by the proxy will be voted in each case." 



In some cases, though, proxies may grant proxy holders discretionary authority to vote 



on certain matters.  3 AAC 08.335(f) provides two potentially relevant circumstances in 



which discretionary authority may be granted. 



                First, 3 AAC 08.335(f)(1) allows for proxies to confer on their holders 



discretionary authority to vote with respect to "matters which the persons making the 



solicitation do not know, a reasonable time before the solicitation, are to be presented at 



the meeting."     CIRI argues, and the superior court agreed, that this exception applies 



because "although Rude and the New Alliance had expressed their intention to include 



the proposal, CIRI could not know whether that plan would indeed be carried out, nor 



could CIRI know the language that would be used." 



                Second, 3 AAC 08.335(f)(4) allows for proxies to confer on their holders 



discretionary   authority   to   vote   with   respect   to   "a   proposal   omitted   from   the   proxy 



statement and proxy, if solicited for an annual meeting by participants other than the 



board."    Relatedly, 3 AAC 08.345(b)(15) requires that proxy statements include, "for 



each matter which is to be submitted to a vote of the shareholders, other than the election 



of directors, a description of the proposal and a statement of the vote required for its 



approval." CIRI argues that 3 AAC 08.345(b)(15) applies "only to those [proposals] the 



                                                 -30-	                                           6737
 


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

board itself intends to present for a vote."  (Emphasis in original.)  Accordingly, argues 



CIRI, 3 AAC 08.335(f)(4) "expressly permits solicitation of discretionary authority to 



vote on non-board proposals." 

                We will focus on the second exception.42           Whether the second exception 



applies hinges on whether 3 AAC 08.345(b)(15) applies only to board proposals or to 



all proposals.     If the clause "for each matter which is to be submitted to a vote of the 



shareholders" implicitly means "submitted by the board to a vote of the shareholders," 



then 3 AAC 08.335(f)(4) excepts CIRI from having to include the proposal in its proxies. 



If not, then CIRI was not entitled to discretionary authority on the proposal under this 



exception. 



                When interpreting an agency regulation for which an agency has provided 



its   own   interpretation,   we   apply   "a  deferential   standard    of  review   [that]   properly 



recognizes that the agency is best able to discern its intent in promulgating the regulation 

at issue."43  In its motion for partial summary judgment, CIRI attached a 2004 letter from 



a   Division    of   Banking     and   Securities    examiner    explaining     that  the   Division's 



interpretation of the regulation was the same as CIRI's. In that letter, written in response 



to a complaint that CIRI was refusing to include a proposed floor resolution in its proxy 



materials,   Securities   Examiner   Ellen   Buchanan   stated   that   "[t]he   regulations   do   not 



require a corporation to include a shareholder's resolutions in its proxy statement and 



proxy."    She explained: 



        42      We conclude that the first exception applies because CIRI, though it had 



general notice of New Alliance's intent, could not have known if the plan would be 

completed      or   what    language     New    Alliance    would     use  in   the  proposal.     See 

3 AAC 08.335(f)(1). 



        43      Handley v. State, Dep't of Revenue , 838 P.2d 1231, 1233 (Alaska 1992) 



(internal quotation marks omitted). 



                                                 -31-                                            6737
 


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

                 The   proxy   regulations   at   3   AAC   08.335(f)(4)   state   that   a 

                 proxy may confer discretionary authority to vote on proposals 

                 omitted   from   the   proxy   statement   and   proxy   materials   if 

                 solicited for an annual meeting by participants other than the 

                 board.  We do not agree . . . that the intent of this section is to 

                 allow discretion only if the promoters of it refuse to allow the 

                 proposal's inclusion in the management proxy.                 We do not 

                 find    that   CIRI's     intent   to   use   discretion     to   vote   on 

                 [shareholder] proposals is a violation of the regulations. 



Rude proposes no alternative interpretation of the regulation except to assert that his 



interpretation is correct.   He makes no argument that the Division's interpretation of the 



regulation lacks a rational basis.         Because an agency is best able to interpret the intent 

of its regulations,44 Rude's failure to articulate how the agency's facially defensible 



interpretation is incorrect means that the agency interpretation controls.                  CIRI was not 



required to include the special dividend proposal in its proxy materials, and summary 



judgment on this point was therefore appropriate. 



                 7.	     CIRI's proxy forms did not improperly contain too few slots for 

                         write-in candidates. 



                 Finally, in the last of his election-fairness claims, Rude argues the superior 



court should have invalidated CIRI's proxies because they "did not contain five . . . 



blanks for write-in candidates, but only one."              According to Rude, this implied that a 



voter could only vote for one write-in candidate.  As the superior court correctly noted, 



however, Rude provides no authority 



                 to support [his] assertion that a proxy must provide space for 

                 shareholders to write in the names of other candidates.               Nor 

                 does   the   format   misrepresent   the   options   available   to   the 

                 shareholder casting a ballot. . . . [A] reasonable shareholder 

                 would      understand      [CIRI's     use   of   the   term]    'write-in 



         44	     Id. 



                                                    -32-	                                                6737 


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

                candidates' to mean that a shareholder is permitted to write-in 

                more than one candidate. 



Because the regulations governing proxies do not require spaces for write-in candidates, 



and    because    even   if  such   a  requirement     were   inferred,   CIRI's    use   of  the  plural 



"candidates" conveys that more than one name may be written in, the superior court 



correctly granted summary judgment on this point. 



                8.	     Rude's      claim    that   CIRI    impermissibly        refused    to  disclose 

                        information to which he was entitled as a director is moot. 



                Rude's next two claims argue that CIRI improperly denied him access to 



corporate information to which he was entitled.            In the first claim, Rude argues that he 



was entitled to the information by virtue of his position as a director.                In the second, 



Rude   argues   that   he   was   entitled   to   the   information   by   virtue   of   his   position   as   a 



shareholder. 



                Rude     argues    that  he   was   denied    access    to  two   types   of   corporate 



information to which he was absolutely entitled as a director.  First, he argues that CIRI 



wrongfully refused to disclose shareholder email addresses and phone numbers. Second, 



he    argues   that   CIRI   wrongfully      refused   to  disclose    "information     related   to  the 



management of the corporation."   Rude argues that as a director he had an absolute right 

to this information under AS 10.06.450(d).45 



        45	     AS 10.06.450(d) provides: 



                A   director   has   the   absolute   right   at   a   reasonable   time   to 

                inspect and copy all books, records, and documents of every 

                kind and to inspect the physical properties of the corporation 

                or   a  domestic     or  foreign   subsidiary     of  the  corporation. 

                Inspection by a director may be made in person or by agent 

                or attorney and the right of inspection includes the right to 

                copy and make extracts. 



                                                  -33-	                                            6737
 


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

                CIRI argues, and the superior court found, that Rude's claim as a director 



is moot because once he lost his seat as a director he was no   longer   entitled to this 



information.  Therefore, even if CIRI's denial was improper, Rude no longer has a right 



to any relief.    Rude concedes mootness but argues that the public interest exception 



applies to his claims.   But, in an unpublished decision, we addressed the public interest 



exception in this context and determined that it does not apply because claims like this 

would not "continually evade review."46 



                Unlike the other claims at issue in this appeal that are technically moot 



though nonetheless justiciable, Rude's claim that he was denied corporate information 



has no bearing on his status as a prevailing party and therefore cannot affect an award 



of attorney's fees.  Rude is seeking to invalidate CIRI's proxies.  Whether Rude prevails 



on this information claim has no bearing on whether CIRI's proxies should have been 



invalidated, but only on whether Rude was entitled to certain information back when he 



was   a   director.   The   appropriate   relief   for   a   denial   of   corporate   information   is   an 

injunction,47 to which, again, Rude is no longer entitled.           Therefore, we do not address 



Rude's moot claim that he was denied corporate information to which he was entitled as 



a director. 



        46      Mielke v. Matanuska Elec. Ass'n , Mem. Op. & J. No. 1047, 2001 WL 



34818260, at *2 (Alaska, Sept. 26, 2001) ("The public interest exception does not apply 

to this case [addressing the same issue] . . . because applying the mootness doctrine 

would not create a circumstance in which the issues in Mielke's claim are subject to 

repetition yet continually evade review. It is possible that the issues disputed in Mielke's 

case    could   be  repeated.    Informational     access   to  a  quasi-public    entity  is  arguably 

important to the public interest.   But it is readily conceivable that another director could 

bring suit to force MEA management to divulge sought-after information, and timely 

judicial review would be possible, assuming the plaintiff remained a director."). 



        47      See Mielke, 2001 WL 34818260, at *3. 



                                                  -34-                                            6737
 


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

                9.	      Rude abandoned his argument that CIRI impermissibly refused 

                         to   disclose     information       to   which     he   was    entitled     as   a 

                         shareholder. 



                Rude's   second   information   claim   argues   that   he   was   denied   access   to 



shareholder email addresses to which he was entitled as a shareholder.                  He argues that 

AS    10.06.430(b)48      required   CIRI    to  provide    him   this  information     for  the  "proper 



purpose" of soliciting proxies.   CIRI responds by arguing first that Rude abandoned this 



argument below, second that no proper shareholder request for information appears in 



the record, and third that AS 10.06.430(b) does not require a corporation to deliver 



corporate information to a shareholder.   The superior court granted summary judgment 



on the first two of these bases and also found that Rude never identified a proper purpose 



for a shareholder inspection. 



                Rude   has   abandoned   his   shareholder   claim   for   information.        Once   the 



superior court had granted summary judgment to CIRI on most of Rude's counterclaims, 



the superior court gave Rude an opportunity to identify remaining counterclaims.  When 



Rude failed to do so CIRI filed a motion to dismiss the remaining counterclaims.  Rude 



        48	     AS 10.06.430(b) provides: 



                A   corporation   organized   under   this   chapter   shall   make   its 

                books and records of account, or certified copies of them, 

                reasonably      available    for   inspection    and   copying     at  the 

                registered office or principal place of business in the state by 

                a   shareholder   of   the   corporation.    Shareholder   inspection 

                shall    be   upon    written    demand     stating   with    reasonable 

                particularity the purpose of the inspection.           The inspection 

                may be in person or by agent or attorney, at a reasonable time 

                and    for   a  proper   purpose.     Only     books   and    records   of 

                account,   minutes,   and   the   record   of   shareholders   directly 

                connected   to   the   stated   purpose   of   the   inspection   may   be 

                inspected or copied. 



                                                   -35-	                                            6737
 


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

opposed CIRI's motion and identified four remaining counterclaims, none of which 



concerned shareholders' rights to information. The superior court then converted CIRI's 



motion to a motion for summary judgment on the four remaining counterclaims exactly 



as delineated by Rude and gave the parties an opportunity to file briefing. Rude's failure 



to identify shareholder information requests as a live issue at this point constitutes an 

abandonment of his claim.49        CIRI was therefore entitled to summary judgment on this 



claim. 



                For the foregoing reasons, CIRI is entitled to summary judgment on all of 



Rude's counterclaims.        We now turn to CIRI's original claims that the New Alliance 



proxy materials contained material misrepresentations. 



        B.      CIRI's Claims 



                The superior court determined that five statements or sets of statements in 



the New Alliance proxy solicitations were materially misleading as a matter of law. 



Rude   responds   that   four   of   these   sets   of   statements   are   true   while   the   fifth   is   not 



misleading because it is aspirational.         CIRI urges us to affirm the superior court and 



further argues that the superior court erred by failing to grant CIRI summary judgment 



on three other allegedly false statements made by New Alliance. 



        49      State   v.   O'Neill   Investigations,   Inc.,   609   P.2d   520,   528   (Alaska   1980) 



(citing Lewis v. State, 469 P.2d 689, 691-92 n.2 (Alaska 1970)) ("Failure to argue a point 

constitutes an abandonment of it."); see also Powercorp Alaska, LLC v. Alaska Energy 

Auth. , ___ P.3d ___, Op. No. 6715 at 24-25, 2012 WL 4840778, at *12 (Alaska, Oct. 12, 

2012) (citing 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) and Adamson 

v.  Univ.   of   Alaska,   819   P.2d   886,   889   n.3   (Alaska   1991))   (holding   that   inadequate 

briefing of a claim constitutes waiver). 



                                                  -36-                                            6737
 


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

                Alaska law prohibits material misrepresentations in proxy solicitations.50 



Alaska's proxy regulations define when a statement or series of statements is misleading: 



                A misrepresentation is a statement that, at the time and under 

                the    circumstances      in  which    it  is  made    (1)  is  false  or 

                misleading with respect to a material fact; (2) omits a material 

                fact   necessary   in   order   to   make   a   statement   made   in   the 

                solicitation not false or misleading; or (3) omits a material 

                fact    necessary     to   correct    a   statement,    in   an   earlier 

                communication regarding the solicitation of a proxy for the 

                same meeting or subject matter, which has become false or 

                misleading.[51] 



The same regulation provides that a "misrepresentation is material if there is substantial 



likelihood that a reasonable shareholder would consider it important in deciding how to 

vote."52   Additionally, the regulation provides that 



                [a] series of statements or omissions that are objectively false 

                or     misleading,      but    which     might     not    be    material 

                misrepresentations if considered separately, might be material 

                misrepresentations if there is a substantial likelihood that a 

                reasonable shareholder would consider the series important 

                in deciding how to vote.[53] 



        50      AS     45.55.160     ("A   person    may    not,   in  a  document      filed  with   the 



[Commissioner of Commerce, Community, and Economic Development or a designee 

of the commissioner] or in a proceeding under this chapter, make or cause to be made an 

untrue statement of a material fact or omit to state a material fact necessary in order to 

make the statements made, in the light of the circumstances under which they are made, 

not     misleading.")       (substituted      language      from     AS     45.55.990(1)       (defining 

"administrator")). 



        51      3 AAC 08.315(a). 



        52      Id. ; see also Meidinger v. Koniag, Inc., 31 P.3d 77, 83 (Alaska 2001). 



        53      3 AAC 08.315(a). 



                                                  -37-                                             6737
 


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

                Alaska applies the "total mix" standard for determining the materiality of 

omitted facts.54   Under this standard, "an omitted fact is material if there is 'a substantial 



likelihood   that   the   disclosure   of   the   omitted   fact   would   have   been   viewed   by   the 



reasonable investor as having significantly altered the 'total mix' of information made 

available.' "55  For affirmative misrepresentations accompanied by accurate information, 



the question is whether the accurate information neutralizes the misleading information.56 



" '[N]ot every mixture with the true will neutralize the deceptive.                 If it would take a 



financial    analyst   to  spot   the  tension   between     the  one   and   the  other,   whatever    is 

misleading will remain materially so, and liability should follow.' "57 



                Although the issue of materiality is generally one of fact, we have held that 



the issue "may be resolved as a matter of law on summary judgment 'if the established 



[misrepresentations] are so obviously important to an investor, that reasonable minds 

cannot differ on the question of materiality.' "58 



                1.	     The superior court did not err by granting summary judgment 

                        to    CIRI    on   New     Alliance's    statements      concerning      CIRI's 

                        liquidation. 



                The first set of statements the superior court found materially misleading 



were found in New Alliance's third mailer: 



        54      Skaflestad v. Huna Totem Corp., 76 P.3d 391, 397 (Alaska 2003). 



        55      Meidinger , 31 P.3d at 84 (quoting TSC Indus., Inc. v. Northway, Inc., 426 



U.S. 438, 449 (1976)). 



        56      Id. 



        57      Id. (quoting  Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1097 



(1991)). 



        58      Id.   at   83  (quoting  TSC     Indus.,   426  U.S.   at   450)  (internal   quotations 



omitted). 



                                                  -38-	                                            6737
 


----------------------- Page 39-----------------------

                Who is liquidating CIRI?  The New Alliance believes CIRI 

                is being liquidated by management.          As of May 2006: CIRI 

                sold    total  ANCSA       land   entitlements     of $336,344,180. 

                Included   in   this   amount   was   the   sale   of   $275,141,211 

                worth of federal surplus properties. 



                The     CIRI   May     1996    newsletter    listed  CIRI's    original 

                ANCSA land entitlement at 1,301,515 acres of surface and 

                2,366,685 acres of subsurface estate.         CIRI traded  602,399 

                acres of surface and subsurface estate for our federal surplus 

                properties . 



                Page 7 of the CIRI 2007 Annual Report lists CIRI's current 

                ANCSA land entitlement at approximately 600,000 acres of 

                surface and 1,300,000 acres of subsurface estate.           Our land 

                entitlements have been reduced by approximately 700,000 

                acres of surface and 1,000,000 acres of subsurface estate. 

                (Emphases in original.) 



                The basis for the superior court's conclusion that these statements, taken 



together,   were    misleading     was   an  affidavit   filed  by  CIRI's   Director   of   Land   and 



Resources Kim Cunningham.            That affidavit stated, in part: 



                        Since CIRI's inception, in no way has CIRI "sold" or 

                "liquidated" anywhere close to 700,000 acres of surface or 

                1,000,000 acres of subsurface lands   that CIRI received as 

                [its] ANCSA entitlement.  The original ANCSA lands made 

                available to CIRI for selection within its region were of little 

                value because they consisted largely of "mountain tops and 

                glaciers."    Through   a   comprehensive   settlement   with   the 

                federal government, followed by a series of land exchanges, 

                CIRI    agreed    to  forego   certain  of  its  original   entitlement 

                acreage in exchange for potentially more valuable land of a 

                lesser acreage outside of the CIRI region.          As stated in the 

                1996 Annual Report at 21, the land CIRI agreed to accept for 

                its ANCSA entitlement consisted of approximately 699,000 

                acres   of   surface   estate   and   1,764,000   acres   of   subsurface 

                estate.    To    date,   CIRI    has   received    over   90%    of   its 

                entitlement, as restructured. . . . 



                                                 -39-                                            6737
 


----------------------- Page 40-----------------------

                         . . . CIRI's business records [attached to the affidavit] 

                 reflect that as of April 2, 2008, CIRI owned 606,057 acres of 

                 surface   estate,   and   had   sold   only   11,755   acres   of   surface 

                 estate,   for   a   total   sales   price   of   $306,139,284.   .   .   .   CIRI 

                 owned   1,559,033   acres   of   subsurface   estate,   and   had   sold 

                 only 118,763 acres for a total sales price of $31,105,256. . . . 



                         CIRI still owns over 90% of the acreage it received 

                 under ANCSA . . . . 



In granting summary judgment, the superior court found that asking "who is liquidating 



CIRI" gave the false impression that its assets were being liquidated or sold off.  The 



superior court rejected the defendants' argument that they had a good-faith basis for 



believing that CIRI was liquidating large landholdings. 



                 On appeal, Rude does not argue that he had a good-faith belief that the New 



Alliance statements were true, but rather that they are true. Rude argues that "[t]he New 



Alliance's third mailer did not state or imply that CIRI had sold or liquidated 700,000 



acres    of  surface    estate   or  1,000,000     acres   of  subsurface     estate,  only   that   CIRI's 



entitlement to this acreage had been traded away for government surplus property, much 



of   which   was   sold   between   1997   and   the   present."      But   taken   together,   the   three 



paragraphs clearly suggest the former.             By titling this section of the mailer "Who is 



liquidating CIRI?" and claiming that CIRI had disposed of vast estates, New Alliance 



suggested that major assets are being sold as part of a total dismantling of CIRI.  This is 



an affirmative misrepresentation.  It is material because, as the superior court noted, "a 



reasonable shareholder would of course consider it important when deciding how to vote 



if  he/she    understood     that   700,000    acres   of  surface    estate  and    1,000,000     acres   of 



subsurface estate had been liquidated without explanation." 



                 By mentioning the $336 million in land sales, along with the reductions in 



CIRI's entitlement, without mentioning that the former was for the sale of only 12,000 



acres of surface estate and 119,000 acres of subsurface estate and that the latter was as 



                                                    -40-                                              6737
 


----------------------- Page 41-----------------------

a result of swapping less valuable (though larger) acreage for more valuable (though 



smaller) acreage, the mailer suggests that more than half of CIRI's original ANCSA 



entitlement has been sold. The omission of any explanation as to the sales and land swap 



is material because "there is 'a substantial likelihood that the disclosure of the omitted 



fact would have been viewed by the reasonable investor as having significantly altered 

the 'total mix' of information made available.' "59            Had a shareholder known that the 



reductions in landholdings came as part of a swap for more valuable holdings, and that 



the $366 million came from selling only a small part of CIRI's estate, this would have 



significantly     altered  the  total   mix  of   information.     CIRI   was   therefore   entitled   to 



summary judgment on its claim that the New Alliance statements concerning CIRI's 



"liquidation" are misleading. 



                2.	     The superior court did not err by granting summary judgment 

                        to CIRI on New Alliance's statements concerning shareholder 

                        rights. 



                The     superior   court   also   found    materially    misleading     the  following 



statements from New Alliance's third mailer: 



                Shareholder participation.          Section 2(b) of ANCSA says 

                 "Natives     shall  have   maximum      participation    in  decisions 

                affecting their rights and property." 



                We     believe   shareholder     participation    is  lacking    in  our 

                corporation. . . . Shareholders do not get to vote on: the sale 

                of large ANCSA land and natural resource properties; large 

                cash donations; the granting of CIRI owned stock to senior 

                executives;     political   donations;    large  payments      made    to 

                lobbyists     and   consultants;    nor   do   they   get  to  vote   on 

                legislation   that   would   affect   their   rights   or   property.  We 

                want to change this! (Emphases in original.) 



        59      Meidinger , 31 P.3d at 84 (quoting TSC Indus., Inc., 426 U.S. at 449). 



                                                  -41-                                              6737 


----------------------- Page 42-----------------------

                The superior court concluded that "[t]he overall message communicated by 



both statements, read together, is that CIRI is depriving shareholders of legal rights and 



that shareholders are entitled to vote on operational decisions."             The court noted that 



Section 2(b) of ANCSA was a congressional declaration as to how the settlement of 



Native claims should be accomplished, not a law concerning the day-to-day operations 

of ANCSA corporations.60        Instead, the court noted, paraphrasing AS 10.06.450(a),61 that 



"under Alaska law, the board of directors, not shareholders[,] has the right to make both 



day-to-day and long-term management and operational decisions."                  The superior court 



rejected New Alliance's argument that the statement only suggested that the law should 



be changed, saying that it was "not at all clear from the statement . . . that [New Alliance] 



was suggesting a change of law." Finally, the superior court noted that in 1997, Superior 



Court Judge Peter A. Michalski had ordered Rude to issue a correction to his proxy 



statement saying, among other things, "Under Alaska law, the Board of Directors, not 



the shareholders, is responsible for managing the business and affairs of the corporation. 



Ordinary business decisions, therefore, are not appropriate matters for a shareholder 



vote." 



                Rude argues on appeal that these statements were not misleading because 



they were "merely aspirational."          "The New Alliance," he argues, "is stating that if 



shareholders elect a majority of New Alliance directors, the directors will consult with 



shareholders   and   seek   advisory   votes   on   certain   large   transactions."   But   the   New 



Alliance materials give the impression that the supposed lack of shareholder participation 



in   CIRI   decisions   is   a   violation   of   Section   2(b)   of   ANCSA. Rude's   after-the-fact 



        60      43 U.S.C.  1601(b) (2006). 



        61      "All corporate powers shall be exercised by or under the authority of, and 



the business and affairs of a corporation shall be managed under the direction of, a board 

of directors except as may be otherwise provided in this chapter."              AS 10.06.450(a). 



                                                 -42-                                              6737 


----------------------- Page 43-----------------------

explanation      -    that  New     Alliance    was   merely    proposing     advisory    votes   -    is 



unpersuasive because New Alliance could easily have said that in the mailer, but chose 

not to.62   Instead, it left shareholders with the impression that their rights were being 



violated by the CIRI board. Writing proxy materials is not and should not be an exercise 



in how much can be insinuated about the other side without outright lying.                      As the 



superior court correctly found, this misrepresentation was material because a reasonable 



shareholder would consider the fact that the CIRI board was denying her rights important 



in considering how to vote.        Summary judgment was therefore appropriate as to these 



statements. 



                3.	     The superior court did not err by granting summary judgment 

                        to CIRI on New Alliance's statements that "a hardcore minority 

                        of 6 directors" controlled CIRI. 



                Third, the superior court found that it was a material misrepresentation for 



New   Alliance   to   say   on   its   website   that   "never   again   will   a   hardcore   minority   of   6 



directors control our corporation." The superior court rejected New Alliance's argument 



that it was referring to the power of six directors to select an executive committee that 



conducted much of CIRI's business.            New Alliance omitted this explanation from the 



statement on its website.        As a result, the total mix of available information suggested 

improper corporate governance.63          The superior court concluded "[a] minimum of eight 



of the fifteen directors is required to command a majority" and that the New Alliance 



statement that a six-member minority was controlling the corporation was therefore false. 



        62      Kodiak   Seafood   Processors   Ass'n   v.   State ,   900   P.2d   1191,   1198   n.10 



(Alaska 1995) (citing Alaska Int'l Constr., Inc. v. Earth Movers of Fairbanks , 697 P.2d 

626, 629 (Alaska 1985)) ("[P]ost hoc rationalizations are suspect and must be viewed 

critically, [although] they still may be considered."). 



        63      See Skaflestad v. Huna Totem Corp., 76 P.3d   391, 397 (Alaska 2003); 



Meidinger , 31 P.3d at 84 (quoting TSC Indus., Inc., 426 U.S. at 449). 



                                                  -43-	                                           6737
 


----------------------- Page 44-----------------------

The superior court further found that the statement suggested that a minority of directors 



is   "somehow      improperly     controlling    the  corporation,"     thus   causing   a  reasonable 



shareholder to consider the statement important in deciding how to vote.  It is significant 



that this statement dovetails with New Alliance's misrepresentation that shareholders are 



being improperly deprived of their rights to participate in corporate governance.  Since 



a reasonable shareholder would consider New Alliance's series of statements concerning 



improper      corporate    governance     important    in  deciding    how    to  vote,  we   conclude 



summary judgment was appropriate as to this statement. 



                4.	     The superior court did not err by granting summary judgment 

                        to CIRI on New Alliance's statements. 



                These      three   misrepresentations       permeated      New     Alliance's     proxy 



solicitation and together gave the materially misleading impression that the CIRI board 



was    improperly     depriving    shareholders     of  the  benefits   of  corporation     ownership. 



Because   these   three   misrepresentations,   taken   together,   are   sufficient   to   justify   the 



superior   court's   decision   to   void   the   New   Alliance   proxies,   we   need   go   no   further. 



Addressing further alleged misrepresentations can have no bearing on CIRI's status as 

the prevailing party.64      We affirm the superior court's grant of summary judgment to 



CIRI and the court's decision to void the New Alliance proxies. 



        C.	     Rude's Second Appeal 



                Rude's second appeal in this case challenges the superior court's fee award 



and three procedural matters.        First, Rude argues that the attorney's fee award to CIRI 



should be reduced to zero based on various alleged forms of misconduct committed by 



        64      Schweitzer v. Salamatof Air Park Subdivision Owners, Inc., 278 P.3d 1267, 



1273 (Alaska 2012) (explaining that the prevailing party is "the one who is successful 

on the main issue of the action and in whose favor the decision or verdict is rendered and 

the judgment entered" (internal quotation marks omitted) (quoting Progressive Corp. v. 

Peter ex rel. Peter , 195 P.3d 1083, 1092 (Alaska 2008))). 



                                                  -44-	                                           6737
 


----------------------- Page 45-----------------------

CIRI.  Second, Rude argues that the court improperly refused to admit the exhibits that 



Rude attached to his Rule 60(b) motion.              Third, Rude argues that the superior court 



wrongly denied his Rule 60(b) motion for relief from judgment on procedural grounds 



and should have reached the substance of his argument.                Finally, Rude argues that the 



court erred in dismissing New Alliance as a party.            None of these arguments has merit, 



and we affirm the superior court on all points. 



                1.	     The   superior   court   did   not   abuse   its   discretion   in   awarding 

                        attorney's fees to CIRI. 



                Following       summary      judgment     on   all  of  CIRI's    claims   and    Rude's 



counterclaims,   the   superior   court   ordered   Rude   to   pay   CIRI   attorney's   fees   totaling 

$43,773.80 and costs totaling $5,441.14.65  Rude challenges this award on several bases. 



                Alaska Civil Rule 82(b)(2) provides that in cases without money judgments, 



the superior court "shall award the prevailing party in a case resolved without trial 20 



percent   of   its   actual   attorney's   fees   which   were   necessarily   incurred."   Here   CIRI 



submitted   evidence   showing   that   it   had   spent   $223,530   in   litigating   the   claims   and 



counterclaims against Rude, and the superior court accordingly awarded attorney's fees 



of slightly below 20%. Rude does not challenge that this was the proper presumptive 

amount under Rule 82.   Instead, he argues that the superior court abused its discretion66 



in failing to vary the presumptive fee award according to the fee variance factors of 

Rule 82(b)(3).67 



        65      Although the heading of this section of Rude's brief mentions costs as well 



as attorney's fees, he makes no arguments about costs in the body of his brief. 



        66      "Application of Rule 82(b)(3) factors is discretionary, not mandatory." 



Rhodes v. Erion , 189 P.3d 1051, 1055 (Alaska 2008). 



        67      Alaska R. Civ. P. 82(b)(3) provides: 



                                                                                         (continued...) 



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----------------------- Page 46-----------------------

                 First, he argues that CIRI's fee award should be reduced because CIRI 



acted in bad faith by: (1) refusing to disclose shareholder email addresses to the New 

Alliance candidates;68 (2) failing to include the New Alliance candidates in its proxy 



materials; (3) soliciting proxies before it sent out its annual report; (4) failing to include 



the New Alliance dividend proposal in its proxy materials; (5) improperly nominating 



a slate of board-endorsed candidates; (6) improperly placing only one line for write-in 



candidates      on   its  proxies;    (7)  paying    the   campaign      expenses     of  board-nominated 



         67(...continued) 



                 The court may vary an attorney's fee award calculated under 

                 subparagraph (b)(1) or (2) of this rule if, upon consideration 

                 of the factors listed below, the court determines a variation is 

                 warranted: 



                 . . . . 



                 (G)       vexatious or bad faith conduct; 



                 . . . . 



                 (I)       the   extent   to  which   a   given   fee   award   may   be   so 

                 onerous      to  the   non-prevailing       party   that  it  would     deter 

                 similarly   situated      litigants   from   the   voluntary    use   of   the 

                 courts; 



                 (J)       the extent to which the fees incurred by the prevailing 

                 party suggest that they had been influenced by considerations 

                 apart   from   the   case   at   bar,  such   as   a   desire   to   discourage 

                 claims by others against the prevailing party or its insurer; 

                 and 



                 (K)       other equitable factors deemed relevant. 



         68      Included   in   this   argument   is   an   allegation   that   CIRI   perjured   itself   by 



"dissembl[ing] and misrepresent[ing] to the [superior] court that it did not use E-mail 

addresses" for campaign purposes. However, Rude did not argue this below and has thus 

waived it. See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) ("A party 

may not raise an issue for the first time on appeal."). 



                                                     -46-                                                6737
 


----------------------- Page 47-----------------------

candidates but not the New Alliance candidates; and (8)  removing Rude from the board 



by failing to list his name in its proxy materials.                But with the exception of the claim 



about   election   expenses,   these   are   just   a   rehash   of   Rude's   counterclaims.            Rude's 



argument       is  basically     that  the   very   conduct     for   which     CIRI    is  not  liable   should 



nonetheless reduce the attorney's fees he owes. Because CIRI is entitled to judgment on 



                                                                                                               , 

Rude's election-fairness claims, it is also entitled to attorney's fees on those claims.69                      70 



                  Further,   with   the   exception   of   the   claim   that   CIRI   refused   to   disclose 



shareholder email addresses, Rude explicitly stated in his opposition to CIRI's motion 



for attorney's fees that neither party had engaged in vexatious or bad-faith conduct.  He 

has therefore waived this argument.71 



                  Rude's second argument, relying on Rule 82(b)(3)(I),72 is that "[t]he fee 



award granted by the trial court is so onerous . . . that it would deter similarly situated 



litigants   from   the   voluntary   use   of   the   courts   to   remedy   any   future   misconduct   of 



ANCSA corporations."             CIRI argues that subsection I does not apply to Rude because 



         69       See    Lentine     v.  State,   282    P.3d    369,   381    (Alaska     2012)     (A   party's 



"characterization of her actions as an 'innocent mistake' involves a question of fact that 

was litigated at trial, and the superior court's failure to consider it again in determining 

attorney's fees was not an abuse of discretion."). 



         70       Rude also argues that the superior court should have applied the equitable 



doctrine   of   unclean   hands   to   reduce   CIRI's   attorney's   fee   award.           But   because   his 

argument that CIRI's hands were unclean is premised on the claims of specific electoral 

misconduct by CIRI - claims that have no merit - his argument must also fail. 



         71       See State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980) 



(citing Lewis v. State , 469 P.2d 689, 691-92 n.2 (Alaska 1970) ("Failure to argue a point 

constitutes an abandonment of it.")). 



         72       See supra note 67. 



                                                      -47-                                                  6737
 


----------------------- Page 48-----------------------

he did not make "voluntary use of the courts," but was instead sued by CIRI.73                   As CIRI 



seems to recognize, though, this rule does apply to Rude's counterclaims.                    As to those 



claims,   Rude   argues   that   "rational   apathy"   discourages   shareholders   from   bringing 



potentially costly claims against corporations in which they can expect little individual 



benefit   (though   systemic   benefits   may   be   great).    As   CIRI   points   out,   though,   here 



"Rude's counterclaims were motivated by private concerns, particularly his personal 



desire to seek election to the CIRI board of directors."              Given that Rude had a strong 



personal stake in the outcome of his counterclaims, the superior court did not abuse its 



discretion in declining to vary from the Rule 82 fee schedule. 



                 Relying on Rule 82(b)(3)(J), Rude next argues that "[t]his [c]ourt should 



vacate CIRI's award of costs and attorney fees because CIRI's decision to bring this case 



was influenced by management's desire to discourage actions by other shareholders to 



reform CIRI."      As CIRI notes, "[n]o factual or legal basis exists for this assertion," and 



Rude cites to no evidence in this portion of his brief.  Given the lack of any support for 



Rude's assertion, it was not an         abuse of discretion for the superior court to decline to 



vary the fee award. 



                 Finally,   Rude   argues   that   the   superior   court   should   have   applied   "the 



equitable doctrine of common benefit" to "protect[] a lone shareholder from bearing the 



burden of litigation that is intended to benefit many shareholders, to promote corporate 



suffrage, and to protect the corporate democracy."  As discussed above, though, Rude's 



        73       See Little Susitna Constr. Co. v. Soil Processing, Inc., 944 P.2d 20, 29 



(Alaska 1997) (noting that a losing party "ha[d] failed to explain, either below or on 

appeal, how [subsection I] might apply to its situation, particularly since [the prevailing 

party]   initiated   the   litigation   and   [the   losing   party]   made   no   'voluntary   use   of   the 

courts' ") (citing Rule 82(b)(3)(I)). 



                                                   -48-                                              6737
 


----------------------- Page 49-----------------------

private interest in bringing his counterclaims was substantial.            The superior court was 



therefore acting within its discretion when it declined to vary the fee award. 



                Because Rude has not shown that the superior court abused its discretion 



in declining to vary from Rules 82's presumptive fee awards, we affirm the superior 



court's fee award. 



                2.	     The superior court did not abuse its discretion by striking from 

                        the record exhibits filed with Rude's Rule 60(b) motion. 



                Rude next argues that the superior court abused its discretion in refusing 



to admit 33 exhibits attached to his Rule 60(b) motion.              Rude's motion for relief from 



judgment, filed   after summary   judgment had   been   granted   on   all of the claims   and 



counterclaims and after Rude had already filed a notice of appeal, contained 33 new 



exhibits. CIRI then filed a motion to strike the exhibits on the grounds that they were 



irrelevant to Rude's Rule 60 motion, that they were filed much too late and were "a 



blatant attempt to inappropriately supplement the record on appeal," and that they were 



not   authenticated.    The   superior   court   granted   CIRI's   motion   for   the   reasons   stated 



therein. 



                On appeal, Rude argues that the motion was brought as a Rule 12(f) motion 



to strike and that Rule 12(f) empowers courts to strike material from pleadings only, and 



not exhibits.  He argues that even if Rule 12(f) were applicable, the exhibits in question 



"were not redundant, immaterial, impertinent, or scandalous" because they were "CIRI's 



own business records."   He further argues that the superior court erred in finding that the 



evidence was not relevant under Alaska Evidence Rules 401 and 403.  He finally argues 



that the superior court erred in finding that the exhibits were not admissible because they 



were not authenticated. 



                The superior court did not abuse its discretion in   refusing to admit the 



exhibits.    As the superior court found, Rude's new exhibits were filed after summary 



                                                 -49-	                                           6737
 


----------------------- Page 50-----------------------

judgment had already been granted on all claims and those judgments had already been 



appealed.  At that point, Rude's delay in filing the exhibits could fairly be called undue, 



and    admitting   the   exhibits   -    i.e.,   giving  Rude  an   opportunity   to   supplement   the 



appellate record after the case had already terminated - would have unfairly prejudiced 

CIRI.74   Notably, Rude did not move for relief from judgment under Civil Rule 60(b)(2). 



That   rule   provides   for   relief   in   cases   of   "newly   discovered   evidence   which   by   due 



diligence     could   not   have   been   discovered    in  time   to  move    for  a  new   trial   under 



Rule 59(b)."     However, even had Rude argued under this rule, there is nothing in the 



record to suggest that the 33 new exhibits were "newly discovered evidence which by 



due diligence could not have been discovered" earlier.  Even under Rule 60(b)(2), then, 



it appears the exhibits would have been properly excluded. 



                3.	      The   superior   court   did     not   abuse   its   discretion   by   denying 

                        Rude's Rule 60(b) motion. 



                Rude next argues that the superior court abused its discretion in denying his 

Rule 60(b) motion for relief from judgment.75              Rude's arguments in his motion were 



essentially identical to those he made in opposing summary judgment.                      Because the 



        74      Evidence   Rule   403   allows   a   court   to   exclude   relevant   evidence   "if   its 



probative value is outweighed by the danger of unfair prejudice . . . or by considerations 

of undue delay." 



        75	     Rule 60(b) provides, in relevant part: 



                On motion and upon such terms as are just, the court may 

                relieve a party or a party's legal representative from a final 

                judgment, order, or proceeding for the following reasons: 



                (1)	    mistake, inadvertence, surprise or excusable neglect; 



                (2)     newly   discovered   evidence   which   by   due   diligence 

                could not have been discovered in time to move for a new 

                trial under Rule 59(b)[.] 



                                                  -50-	                                            6737
 


----------------------- Page 51-----------------------

superior court did   not err in granting summary judgment to CIRI on all claims and 

counterclaims, its denial of the Rule 60(b) motion was not a reversible error.76 



                4.	     The superior court did not abuse its discretion by entering the 

                        stipulated order dismissing New Alliance as a party. 



                Finally, Rude argues that the superior court erred by entering a stipulated 



order dismissing New   Alliance as a party.            On July 6, 2009, following the superior 



court's two main summary judgment rulings, the superior court entered a stipulation and 



order dismissing defendants Anagick, Kiana, Thomas, and New Alliance as parties.  The 



stipulation was signed by CIRI's attorney, Thomas's attorney, Chris Kiana, and Ella 



Anagick, who four days before had filed an entry of appearance as attorney on behalf of 

New Alliance.77      The stipulation was not signed by Rude's attorney, Fred Triem, who 



had filed an entry of appearance on behalf of New Alliance in June 2008. 



                Rude argues that this stipulation was "not effective" with respect to New 



Alliance because Triem was the attorney of record for New Alliance, and he "has never 



withdrawn   or   been     substituted."    Alaska   Civil   Rule   81(c),   on   which    Rude   relies, 



provides: 



                (1)     An attorney who files a pleading or appears in a court 

                proceeding   on   behalf   of   a   party   shall   be   deemed   to   have 

                entered an appearance for all purposes in that case unless the 

                attorney has filed and served a limited entry of appearance 

                under (d) of this rule. 



        76       Further, the disposition of this motion is moot.  Resolving whether Rude's 



Rule 60(b) motion was improperly denied has no bearing on prevailing party status at 

this point. 



        77      Anagick's signature is actually dated June 29, 2009, five days before she 



entered her appearance on behalf of New Alliance.              Rude does not mention this in his 

argument that the superior court abused its discretion in entering the order, and so we 

will assume that the superior court was acting within its discretion to give after-the-fact 

effect to Anagick's signature. 



                                                  -51-	                                           6737
 


----------------------- Page 52-----------------------

                 (2)     Except as otherwise ordered by the court, or except as 

                 provided   in   Rule   81(d)   and   81(e)(1)(D),   a   party   who   has 

                 appeared by an attorney may not thereafter appear or act in 

                 the party's own behalf in any action or proceeding, unless 

                 order of substitution shall have been made by the court after 

                 notice to such attorney. 



According to Rude, this rule required a substitution of counsel before Anagick could act 



on behalf of New Alliance. 



                 CIRI responds that neither Rude nor Triem objected to the dismissal below, 



nor to Anagick's entry of appearance as counsel for New Alliance, and that this point is 



therefore waived.  CIRI is correct.          "A party may not raise an issue for the first time on 

appeal."78     To    be   sure,   as   the   court   of   appeals   has   recognized   in   cases   in   which 



represented   parties   try   to   file   pro   se   pleadings,   allowing   a   party   to   have   multiple 



representatives   who   might   be   working   at   cross-purposes   "could   cause   considerable 

confusion."79     But in situations such as these, the superior court has "the authority" to 



require parties to consolidate their representation; there is no basis for requiring the court 

to do so.80  Further, even in situations in which a late entry of appearance may undermine 



the ability of a precedent attorney to pursue her client's claim effectively, it is up to the 



party or the aggrieved attorney to raise an objection, at the latest, when the conflict 



arises.  Here, Rude and Triem failed to object and have thus forfeited any objection.  The 



superior court was therefore acting within its discretion to enter the stipulated order to 

which no one had objected.81 



        78       Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001). 



        79       Martin v. State , 797 P.2d 1209, 1217 (Alaska App. 1990). 



        80       Id. 



        81       Rude     only   objected     after  summary      judgment      had   been    granted    and 



                                                                                           (continued...) 



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----------------------- Page 53-----------------------

V.     CONCLUSION 



              For the foregoing reasons, we AFFIRM the superior court. 



       81(...continued) 



attorney's fees awarded.    At that point,   the only benefit that could inure to Rude in 

winning on this argument is that some portion of his award of attorney's fees could be 

apportioned to New Alliance. 



                                            -53-                                        6737 

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