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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pederson v. Arctic Slope Regional Corporation (4/13/2018) sp-7236

Pederson v. Arctic Slope Regional Corporation (4/13/2018) sp-7236

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



RODNEY  S.  PEDERSON,                                               )  

                                                                    )  Supreme  Court  No.  S-16386  

                              Appellant,                            )  

                                                                                                                               

                                                                    )  Superior Court No. 3AN-14-05525 CI  

          v.                                                        )  

                                                                    )                      

                                                                       O P I N I O N  

                             

ARCTIC SLOPE REGIONAL                                               )  

CORPORATION,                                                        )                                    

                                                                       No. 7236 - April  13, 2018  

                                                                    )
  

                              Appellee.                             )
  

                                                                    )
  



                                                                                                        

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

                                                                                         

                    Judicial District, Anchorage, Paul E. Olson, Judge.  



                                                                                              

                    Appearances:             Rodney  S.  Pederson,  pro  se,  Anchorage,  

                                                                                                       

                    Appellant.             James       E.    Torgerson,          Stoel   Rives          LLP,  

                                                                                                           

                    Anchorage, and C. Robert Boldt, Kirkland & Ellis LLP, Los  

                                                          

                    Angeles, California, for Appellee.  



                                                                                                     

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                         

                    and Carney, Justices.  



                                        

                    WINFREE, Justice.  



I.        INTRODUCTION  



                                                                                                                   

                    A corporate shareholder sought a shareholder list to mail proxy solicitations  



                                                                                                              

for  an  annual  director  election.                 The  corporation  required  a  signed  confidentiality  



                                                                                                                                

agreement in exchange for releasing the  list.   After  obtaining and using the  list, the  



                                                                                                                                

shareholder later declared the agreement unenforceable, refused to return or destroy the  


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

 list, and invited the corporation to file suit. The corporation obliged, seeking to establish                                                                                                                                                                                                                                                                                                                                                                          



that the shareholder had breached the confidentiality agreement and that the corporation                                                                                                                                                                                                                                                                                                                                                               



was not obligated to provide the shareholder access to its confidential information for                                                                                                                                                                                                                                                                                                                                                                                                                 



two years.   



                                                                              After the superior court refused to continue trial or issue written rulings on                                                                                                                                                                                                                                                                                                                                                



theshareholder'stwopendingsummaryjudgmentmotions -which thecourt effectively                                                                                                                                                                                                                                                                                                                                                                                 



 denied at the start of trial - the shareholder declined to participate in the trial. The court                                                                                                                                                                                                                                                                                                                                                                                             



proceeded with trial, ruled in favor of the corporation, and denied the shareholder's                                                                                                                                                                                                                                                                                                                                                    



 subsequent disqualification motion.                                                                                                                                                                               The shareholder appeals.                                                                               



                                                                               Because the superior court did not err in determining the shareholder had                                                                                                                                                                                                                                                                                                                                             



materially breached a valid, enforceable contract and did not err or abuse its discretion                                                                                                                                                                                                                                                                                                                                                                       



in its pretrial decisions or in denying the post-trial disqualification motion, we affirm                                                                                                                                                                                                                                                                                                                                                                                            



those aspects of the decision.                                                                                                                                             But because the declaratory relief granted by the superior                                                                                                                                                                                                                                     



 court regarding the shareholder's statutory right to seek corporate information no longer                                                                                                                                                                                                                                                                                                                                                                                           



pertains to a live controversy, we vacate it as moot without considering its merits.                                                                                                                                                                                                                                                                                                                                                                  



II.                                    FACTS AND PROCEEDINGS                                                                 



                                       A.                                      Facts  



                                                                               Rodney   Pederson   is   an   Arctic   Slope   Regional   Corporation   (ASRC)  



 shareholder.     Pederson,    an    attorney,    has    had    disputes    with    ASRC    about    both  



 (1)   corporate books and records access requests and (2) materials he has sent ASRC                                                                                                                                                                                                                                                                                                                                                                                              



 shareholders in proxy solicitations and other mailings.                                                                                                                                                                                                                                                                                We decided one such dispute                                                                                                            



regarding Pederson's requests to                                                                                                                                                             reviewcertain                                                                       corporatebooks andrecords in                                                                                                                                                      Pederson  

v.  Arctic Slope Regional Corp.                                                                                                                                                      1  



                                        1                                      331  P.3d  384  (Alaska  2014).  



                                                                                                                                                                                                                                                      -2-                                                                                                                                                                                                                                      7236  


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

                                                                                                                               

                    In  late  April  2013  Pederson  requested  an  ASRC  shareholder  list  for  



                                                                                               

soliciting proxies in that year's annual directors election.  He agreed to "complete and  



                                                                                                             

sign  ASRC's  standard  shareholder  address  list  request."                                 A  week  later  Pederson  



                                                                                                                            

submitted the standard request form, stating that his purpose was "[t]o distribute a proxy  



                                                                                                                                 

solicitation  to  selected  ASRC  shareholders  for  the  2013  ASRC  annual  meeting  &  



                                                                                         

election of [d]irectors."  The form included the following provisions:  



                                                                                                    

                    I understand that I may, at my own expense, use the services  

                                                                                                           

                    of a third-party mailing house designated by ASRC who will  

                                                                                                            

                    have access to the shareholder list.  I acknowledge that the  

                                                                                                           

                    information contained in the list is ASRC proprietary and  

                                                                                                             

                    confidential information,  and  may  not be (i)  disclosed  or  

                                                                                                            

                    disseminated by me to any other party or (ii) reproduced (in  

                                                                                                            

                    physical or electronic format) or used in any manner by me  

                                                                             

                    except for the above stated purpose.  



                                                                                                                                 

The form also included the following clause:  "I understand that any unauthorized or  



                                                                                                                                 

improper use of the shareholder records, including this list, will, among other things, be  



                                                                                                                     

cause for the Corporation to deny future records requests I may make . . . ."  



                                                                                                                    

                    ASRC also required Pederson to sign a separate confidentiality agreement,  



                                                                                                                              

which he did in May, approximately one month before the 2013 annual election.  That  



                                                                        

agreement included the following provisions:  



                                                                                              

                     [I]n consideration of the Recitals and receipt of Confidential  

                                                                                                     

                    Information   and   the   covenants   and   conditions   herein  

                                                                                  

                    contained, the parties agree as follows:  



                                                                                              

                               . . . Pederson agrees that the Confidential Information  

                                                                                                           

                    shall  be  used  solely  for  the  purposes  described  in  the  

                                                          

                    Inspection Requests. . . .  



                                                                                                

                               Consistent with the stated purpose in the Inspection  

                                                                                             

                    Requests,  if  Pederson  chooses  to  copy  any  Confidential  

                                                                                                             

                    Information in whole or in part, Pederson agrees to return all  

                                                                          

                    written or electronic copies of the Confidential Information  

                                                                                                       

                    on or before June 24, 2013, together with a statement signed  



                                                                -3-                                                         7236
  


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

                                                                                                      

                    under penalty of perjury that Pederson has returned all copies  

                                                                       

                    of the Confidential Information.  



                                                                                                                          

The agreement was limited in scope to information not otherwise part of the public  



                                                                                                                              

domain  or  available  to  Pederson  on  a  non-confidential  basis,  and  it  included  the  



                                                                                                                              

following clause:  "Pederson understands that the Company may use any breach of this  



                                                                                                                   

Agreement by Pederson as a basis to deny any future inspection requests."  



                                                                                                                               

                    Pederson  created  a  spreadsheet  from the  shareholder  list  and  sent  the  



                                                                                                                                

information to a commercial printing company that mailed his proxy solicitation to  



                                                                                             

approximately 6,000 ASRC shareholders.  Pederson did not return the shareholder list  



                                                                                                                              

by the deadline contained in the confidentiality agreement. In July an ASRC officer sent  



                                                                                                                              

Pederson  an  email  requesting  he  return  any  copies  of  the  shareholder  list  in  his  



                                                                                                                      

possession and comply with all other terms of the confidentiality agreement.  Pederson  



                           

did not respond.  



                                                                                                                       

                    In October, after submitting another request to inspect and copy ASRC's  



                                                                                                                           

shareholder list, Pederson sent ASRC's counsel an email asserting that he had spent  



                                                                                                                      

about  100  hours  inputting  the  hard  copy  of  the  earlier  shareholder  list  into  his  



                          

spreadsheet and stating:  



                                                                                                           

                    [T]he electronic version ASRC forced me to produce on my  

                                                                                                                 

                    own [is] my work product, and not the "property" of ASRC.  

                                                                                                              

                    I am reasonable though, and may be willing to negotiate a  

                                                                                                

                    reasonable rate for the work to convert the list, if they want  

                                                                                                    

                    my work product as opposed to what they provided me.  



                                                                                                                                  

In another email sent the same day Pederson asserted he had never been "provided a  



                                                                                                                       

legible copy of the 'agreement' . . . so I could not comply with 'terms' that I was not  



                                                                                                                               

aware of.  Further, it was made clear . . . that I would not be allowed to inspect the list  



                                                                                                                               

unless I first signed the 'agreement' in the exact form that ASRC demanded."   He  



                                                                                                                                 

continued,  "ASRC  was  well  aware  that  annual  meeting  time  constraints  made  it  



                                                               -4-                                                         7236
  


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

                                                                                                                            

impossible for me to object to the highly unreasonable terms . . . or to file a court action  



                                                                                                                             

to compel production."  Pederson asserted for the first time that many addresses were  



                                                                                                                                      

unreadable or intentionally misprinted to sabotage his mailing, and he threatened suit.  



                                                                                                                  

                    In November Pederson sent ASRC's counsel another email, stating:  



                                                                                                   

                     [I]f  your  client  thinks  they  are  in  such  a  great  position  

                                                                                           

                    regarding the "agreement" they forced me to sign to get the  

                                                                                                           

                    addresses to distribute my proxies, then why don't they just  

                                                                                                              

                    sue me?  Lets [sic] have a judge decide if the agreement is  

                                                                                                          

                    enforceable   under   the   circumstances   under   which   my  

                                                          

                    signature was obtained.  



                                                                                                                           

                    In  spring  2014  Pederson  used  the  information  to  distribute  a  proxy  



                                                                                                                       

solicitation to ASRC shareholders for the 2014 annual  director election.   Pederson  



                                                                                    

returned a paper copy of the shareholder list to ASRC in 2015, but never returned any  



                                                            

electronic information he had created.  



          B.        Proceedings  



                                                                                                               

                    ASRC brought suit in March 2014, primarily seeking: (1) a determination  



                                                                                                                                

that Pederson had breached the confidentiality agreement; (2) injunctive relief for the  



                                                                                                                                

return of its confidential information; and (3) declaratory judgment that ASRC was not  



                                                                                                                               

obligated to provide Pederson access to its confidential information for two years.  The  



                                                                                                                    

superior court issued a routine pretrial order in May, setting the deadline for dispositive  



                                                                                                                                  

motions in late June 2015, a trial call in early September 2015, and trial in the middle of  



                   

that month.  



                                                                                                                          

                    Pederson filed a summary judgment motion in February 2015.  He argued  



                                                                                              

that there was "no actual controversy or harm" for the court to decide, and that ASRC  



                                                                                                                                

had no affirmative right to seek declaratory judgment.  ASRC filed an opposition the  



                                                                                                                          

following month, pointing to what it contended wereanumber offactual disputes barring  



                                                                                                                                 

summary judgment.   In June, Pederson was elected as an ASRC director.   Late in  



                                                                -5-                                                         7236
  


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

                                                                                                                        

August,  a  week  before  the  trial  call  and  well  beyond  the  June  dispositive  motion  



                                                                                                                             

deadline,  Pederson  filed  a  second  summary  judgment  motion.                                         He  argued  that  



                                                                                                                               

"Pederson's [recent] election to the Board of Directors of the Plaintiff ASRC and his  



                                                                                                                             

return of the 'confidential' shareholder list to ASRC render[ed] this action moot."  This  



                                                                                                                  

argument referenced Pederson'srecent return ofthepaper copyoftheASRCshareholder  



                                                                                                                               

list; Pederson also stated that he had destroyed all electronic and disc copies of the  



                    

shareholder information.  



                                                                                                                       

                    Pederson attended the early September trial call telephonically; ASRC's  



                                                                                                                                 

counsel attended in person.  ASRC requested "discovery specifically on and limited to  



                                                                                                                                     

the representations made in support of Mr. Pederson's new[summary judgment] motion.  



                                                                                                                                 

We can then . . . decide how to respond . . . ."  The court later restated this request to  



                                                                                                                                 

ensure Pederson understood it: "[ASRC's counsel] is saying he wants an opportunity to  



                                                                                                                              

do some discovery to find out whether all these things are true . . . .   And I'm not  



                                                                                                                    

speaking for him, but it sounds like the only way there's some possibility this might  



                                                                                                                              

resolve is if they can verify all this information."  The court confirmed Pederson had  



                                                                             

heard and understood the request, repeating "[s]o that sounds like do a deposition and  



                                                                                                            

get all their information, . . . they want to make sure that you have the time and ability  



                                                                                                                               

to do this."  After Pederson confirmed he had no objection, the court set a deadline for  



                                                                                      

ASRC's reply and rescheduled trial for mid-November.  



                                                                                                                            

                    About two weeks later Pederson filed a motion "request[ing] that the court  



                                                                                                                     

[deny] ASRC's request to re-open discovery [to] depose Pederson prior to opposing  



                                                                                                                              

Pederson's Second Motion for Summary Judgment."   Pederson asserted he had not  



                                                                                                                                 

agreed to re-open discovery at the trial call, he had "heard no request or a motion to  



                                                                                                                                 

reopen discovery," he "certainly was NOT asked or properly given an opportunity to  



                                                                                                                          

oppose the request," and he "learned a long time ago not to agree to anything that ASRC  



                 

requests."  



                                                               -6-                                                         7236
  


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

                                                                                                                      

                    At theendofSeptember thesuperior court stayedPederson's first summary  



                                                                                                                             

judgment motion because in his second summary judgment motion he asserted the case  



                                                                                                                                     

was moot.  Pederson moved for reconsideration of the stay less than two weeks later.  



                                                                                                                  

Pederson  continued  refusing  to  be  deposed,  and  ASRC  requested  a  scheduling  



                                                                                                                  

conference for the end of October.  Pederson did not attend that scheduling conference,  



                                                                                                                          

later explaining he had fallen behind in checking his mail.  At the conference ASRC  



                                                                                                                               

represented to the court that Pederson had continued to stymie its efforts to take his  



                         

deposition; the court reviewed the trial-call transcript and confirmed its understanding  



                                                                                                                        

that Pederson had agreed to the discovery.  The court gave ASRC the option of moving  



                                                                                    

to compel discovery or proceeding to trial as planned.  



                                                                                                                               

                    In early November ASRC requested to proceed with trial as scheduled and  



                                                                                                                    

the court so ordered. Six days before trial Pederson requested the trial date be continued;  



                                                                                                                               

he argued that the court should rule on his two summary judgment motions and that the  



                                                                                                                             

parties should be granted time to consider and respond to those rulings before trial  



                     

commenced.  



                                                                                                                       

                     On  the  first  trial  day  Pederson  again  raised  his  continuance  request,  



objecting to trial proceeding before the court ruled on the pending summary judgment  



                                                                                                                              

motions.  The court denied the continuance, rejecting Pederson's argument that he had  



                                                                                                               

not agreed to discovery at the earlier trial call.  The court noted that the case had been  



                                                                                                                     

ready  for  trial  since  September  and  that  "there  are  facts  in  dispute  and  summary  



                                                                                                                         

judgment would have been denied anyway, frankly."  Pederson objected to the court's  



                                                                                                                           

rulings, informing the court that he was "going to decline to participate in the trial,"  



                                                                                                                                     

although he did not "see any reason why [ASRC's counsel] can't put on his case."  



                                                                                                                       

Despite  the  court  verbally  instructing  Pederson  to  remain  as  a  party  and  witness,  



                                                                                             

Pederson left the courtroom, and the trial continued without him.  



                                                                -7-                                                        7236
  


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

                                                                                                                               

                    After the first day of trial the court emailed Pederson an order giving him  



                                                                                                                             

"an opportunity to present evidence," which Pederson allegedly did not receive until  



                                                                                                                                

after trial had concluded. ASRC filed an affidavit on the second day of trial stating it had  



                                                                                                                             

a courier deliver the order to Pederson's residence following the first day of trial; when  



                                                                                                                               

no one answered, the courier posted the order on the door. Trial continued that day, and  



                                                                       

ASRC concluded the presentation of its case.  



                                                                                                                                

                    Over the next month Pederson filed a number of post-trial motions.  He  



                                                                                                                                

requested  reconsideration  of  the  continuance  denial  and  of  the  order  providing  an  



                                                                                                                      

opportunity to present evidence, requested that the court rule on his summary judgment  



                                                                                                                                      

motions, and sought disqualification of the superior court judge adjudicating the case.  



                                                                                                       

The court denied all of Pederson's post-trial motions; in the order denying Pederson's  



                                                                                                                          

request to rule on his summary judgment motions, the court found that it had denied  



                                                                                                                              

those  motions  at  trial  on  factual  grounds.                     The  order  denying  disqualification  was  



                                                                                      

reviewed and affirmed by another superior court judge.  



                                                                                                                                      

                    The court issued its findings of fact and conclusions of law in March 2016.  



                                                                                                                               

The court ruled that the confidentiality agreement was a valid, enforceable contract and  



                                                                                                   

Pederson had materially breached it; that ASRC was entitled to declaratory judgments  



                                                                                                                                

that Pederson had "offered for sale a list of shareholders" (by referring to negotations for  



                                                                                                                  

a "reasonable rate" for his "work product" in making the spreadsheets) and "improperly  



                                                                                                                                

used" the shareholder list (by using it for the 2014 director elections in addition to the  



                                                                                                                               

2013 elections) as those terms are employed in AS 10.06.430(c); and that ASRC was  



                                                                                                                   

entitled  to  injunctive  relief  regarding  the  confidential  information  in  Pederson's  



                                                                  

possession, as well as costs and attorney's fees.  



                                    

                    Pederson appeals.  



                                                                -8-                                                         7236
  


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

III.         STANDARD OF REVIEW
                 



                         "We review procedural decisions of the superior court for an abuse of                                                                  



                      2                                                                                                                        3  

discretion."                                                                                                              

                          "Discovery rulings are also reviewed for abuse of discretion." 



                                                                                                                                                                      

                         "Contract interpretation is a question of law subject to de novo review.  



                                                                                                                                                                 

When applying the de novo standard of review, we apply our 'independent judgment to  



                                                                                                                                                      

questions of law, adopting the rule of law most persuasive in light of precedent, reason,  



                          4                                                                                                                5  

                                                                                                                                 

and policy.' "                We likewise review the interpretation of statutes de novo. 



                                                                                                                                                                 

                         "A judge's decision that he is actually capable of conducting a fair trial is  



                                                                                                                                            

reviewed for abuse of discretion.  The separate question whether a judge's participation  



                                                                                                                                                                

in a case would lead reasonable people to question his ability to be fair is a question of  



                                             6  

                                 

law reviewed de novo." 



             2            Willoya v. State, Dep't of Corr.                          , 53 P.3d 1115, 1119 (Alaska 2002) (citing                          



Dougan v. Aurora Elec., Inc.                           , 50 P.3d 789, 793 (Alaska 2002)).                   



             3           Id. (citing Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998)).  

                                                                                                                                                      



             4            ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d  

                                                                                                                                                           

 114, 122 (Alaska 2014) (footnote omitted) (first citing Villars v. Villars, 277 P.3d 763,  

                                                                                                                                                            

768 (Alaska 2012); then quoting Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 802  

                                                                                                                                                            

(Alaska 2011)).  

                 



             5           L.D.G., Inc. v. Brown, 211 P.3d 1110, 1118 (Alaska 2009) (citing Alaskans  

                                                                                                                                                   

For Efficient Gov't, Inc. v. Knowles, 91 P.3d 273, 275 (Alaska 2004)).  

                                                                                                                        



             6           Heber v. Heber, 330 P.3d 926, 934 (Alaska 2014) (footnote omitted) (first  

                                                                                                                                                           

citing Hymes v. DeRamus, 222 P.3d 874, 880 (Alaska 2010); Phillips v. State, 271 P.3d  

                                                                                                                                                            

457, 459 (Alaska App. 2012); then citing Griswold v. Homer City Council, 310 P.3d 938,  

                                                                                                                                                            

941 (Alaska 2013); Phillips, 271 P.3d at 468).  

                                                                              



                                                                               -9-                                                                        7236
  


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

IV.	      DISCUSSION  



                                                                                                                

          A.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Re-opening  

                                                                                                                      

                    Discovery After Pederson's Late-Filed Summary Judgment Motion.  



                                                                                                                             

                    Pederson argues the superior court erred by "grant[ing] the Plaintiff's oral  



                                                                                                                      

motion to re-open discovery, long after discovery had closed."   Pederson's primary  



                                                                                                                              

argument is that he had not "heard a motion being made, much less 'agreed' to it."  But  



                                                                                                                                

the hearing transcript provides clear evidence supporting the superior court's ruling to  



                                                                                                                

the contrary.  The court ensured Pederson could hear and understand the proceedings  



                                                                                                                         

throughout the hearing, because Pederson participated telephonically.   When ASRC  



                                                                                                                        

requested  the opportunity  to  conduct discovery  regarding  the recently filed  second  



                                                                                                                     

summary  judgment  motion,  the  court  expressly  repeated  to  Pederson  that  ASRC's  



                                                                                                                       

counsel was "saying he wants an opportunity to do some discovery to find out whether  



                                                                                                                            

all these things are true." Moments later the court again confirmed Pederson could hear  



                                                                                                                              

and asked if ASRC's proposal worked for him.  Pederson responded affirmatively.  



                                                                                                                            

                    It is unclear from Pederson's briefing what harm he alleges resulted from  



                                                                                                                    

the decision to re-open discovery in this limited fashion. Additional discovery obviously  



                                                                                                                              

was necessary:  Pederson filed a summary judgment motion well after the deadline for  



                                                                                                                         

dispositive motions and about two weeks before the scheduled trial date, claiming events  



                                                                     

after the close of discovery had rendered the case moot.  Because that claim depended  



                                                                                                                               

in part on Pederson's own assertions about the return or destruction of his copies of  



                                                                                                                  

ASRC's shareholder list, in all forms, ASRC's counsel asked for "discovery specifically  



                                                                                                                           

on and limited to the representations made in support of" Pederson's motion.  The court  



                                                                                                                             

granted that request because "it sounds like the only way there's some possibility this  



                                                                                                                       

might resolve is if they can verify all this information." But Pederson refused to provide  



                                                                                                                       

therequireddeposition, andthecourtaccordingly deniedthesummaryjudgmentmotions  



                                                        

on the ground that facts remained in dispute.  



                                                              -10-	                                                       7236
  


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

                          Pederson seems to argue he was prejudiced because ASRC never had to                                                                        



respond to his second summary judgment motion as a consequence of the discovery                                                                       



issue.    But the motion was denied on the ground that facts remained in dispute;                                                                                 the  



requested deposition could only have helped resolve those disputed facts.                                                                           The court   



would have been well within its discretion to strike the summary judgment motion as                                                                                  

                   7  it did not abuse its discretion by re-opening discovery and delaying the trial  

untimely;                                                                                                                                                        



- with Pederson's initial agreement - when the purpose was to facilitate its ability to  

                                                                                                                                                                     



rule on Pederson's late-filed summary judgment motion and potentially resolve the  

                                                                                                                                                                  



litigation in Pederson's favor.  As discussed below, Pederson's later disagreement with  

                                                                                                                                                                



this decision and refusal to cooperate with discovery led directly to the denial of his  

                                                                                                                                                                   



summary judgment motion.  

                                        



             B.	          The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Denying  

                                                                                                                                                      

                          Pederson's Summary Judgment Motions At The Beginning Of Trial.  

                                                                                                                                                             



                          Pederson argues it was not "proper for the court to proceed to trial without  

                                                                                                                                                          



first ruling on [his] [first] Motion for Summary Judgment," which he contends would  

                                                                                                                                                            



have "narrow[ed] the issues prior to trial." Related to this argument, Pederson claims the  

                                                                                                                                                                   



court erred by "rely[ing] upon and us[ing] the supposed 'agreement' by [Pederson] to  

                                                                                                                                                                     



reopen discovery as justification for denying Pederson the benefit of his factual and legal  

                                                                                                                                                                



arguments  presented  in  his  two  Motions  for  Summary  Judgment."                                                                       He  asserts  the  

                                                                                                                                                                  



superior court " 'disposed' of [his] motions for summary judgment by finding that he  

                                                                                                                                                                    



'agreed' to reopening of discovery" and imposed "the extreme sanction of completely  

                                            



eliminating, wiping out his motions for summary judgment and the evidence and legal  

                                                                                                                                                                



arguments provided in them from Pederson's defense."  But Pederson misconstrues the  

                                                                                                                                                                   



function and effect of a summary judgment motion.  

                                                                                      



             7  

                                                                                                                                                         

                          See Prentzel v. State, Dep't of Pub. Safety, 169 P.3d 573, 593 (Alaska  

2007).  



                                                                                -11-	                                                                                7236  


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

                                Pedersonargues                          that "[i]t iscommon                            practicein Alaskacourtsfor summary                                



judgment orders to rule on numerous legal and factual issues prior to trial or to resolve                                                                                                     



 cases completely. The orders routinely dispose of the legal or factual issues decided and                                                                                                             



 only those remaining are specified and the trial is conducted accordingly."  But courts                                                           



 do not decide factual issues on summary judgment; they "ascertain what material facts                                                                                                              



 exist without substantial controversy and what material facts are actually and in good                                                                                                            

                                               8    After Pederson's second summary judgment motion the superior  

 faith controverted."                                                                                                                                                                      



 court could not "practicabl[y] ascertain what material facts exist[ed] without substantial  

                                                                                                                                                                                      

 controversy"9  because Pederson refused to submit to a deposition that might establish  

                                                                                                                                                                                          



 that consensus.  

                                       



                                The court did not fail to consider Pederson's summary judgment motions,  

                                                                                                                                                                                          



 nor did it dispose of them as a sanction for the discovery issue.  At the start of trial the  

                                                                                                                                                                                                        



 court stated it had stayed Pederson's first motion at the September status conference  

                                                                                                                                                                                    



 "because there was no reason to go forward, to have any further discussion or argument  

                                                                                                                                                                                         



 or ruling on the first motion for summary judgment on legal issues because [Pederson's  

                                                                                                                                                                                   



 second motion for summary judgment] deemed it was moot." The court then explained:  

                                                                                                                                                                                                                 



 "The case has been ready for trial since September, and there are facts in dispute and  

                                                                                                                                                                                                      



 summary judgment would have been denied anyway, frankly."  By denying Pederson's  

                                                                                                                                                                                     



 continuance motion and proceeding to trial, any ambiguity in therulingshould have been  

                                                                                                                                                                                                    

 made clear.10                      Finally, in a post-trial order denying Pederson's post-trial motion for  

                                                                                                                                                                                                       



                8               Alaska  R.  Civ.  P.  56(d);  see  also  Alaska  R.  Civ.  P.  56(c)  ("There  must  also  



be  served  and  filed  with  each  motion a memorandum  showing  that  there  is  no  genuine  

 issue  as  to  any  material  fact  .  .  .  ."  (emphasis  added)).  



                9               Alaska R. Civ. P. 56(d).  

                                                                            



                 10             See Bridges v. Banner Health, 201 P.3d 484, 493 (Alaska 2008) (quoting  

                                                                                                                                                                                           

                                                                                                                                                                               (continued...)  



                                                                                                   -12-                                                                                            7236
  


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

decisions   on   his   summary   judgment   motions,   the   court   "f[ou]nd   it   [had]   denied  



                                                                                                               11  

Pederson's [summary judgment] motions at trial on factual grounds."                                                 



                      Thus it is clear that the court considered the summary judgment motions  

                                                                                                                               



before trial, determined that genuine issues of fact were disputed, and reserved for trial  

                                                                                                                                     



the opportunity for the parties to resolve those disputes in their favor. The superior court  

                                                                                                                                    



did not abuse its discretion in handling Pederson's summary judgment motions, nor did  

                                                                                                                                       



it eliminate or otherwise deny Pederson the legal defenses contained in those motions.  

                                                                                                                                             



Pederson had the opportunity to present those defenses at trial, but he chose not to do so.  

                                                                                                                                       



                      To the extent Pederson  asks  us to review the denials of his summary  

                                                                                                                            



judgment motions, our case law is clear that "post-trial review of orders denying motions  

                                                                                                                               



for summary judgment - at least when the 'motions are denied on the basis that there  

                                                                                                                                    

                                                                                       12   In short, "the order becomes  

are genuine issues of material fact' " - is precluded.                                                                       

                                                                       

unreviewable after a trial on the merits."13                         Accordingly, the superior court's denials of  

                                                                                                                                        



Pederson's summary judgment motions on "factual grounds" are unreviewable.  

                                                                                                          



           10         (...continued)  



                                                                                                                                      

Brandon v. Corr. Corp. of Am., 28 P.3d 269, 274 (Alaska 2001)) ("[A] ruling on one  

                                                                                                    

motion is an implicit denial of another contradictory pending motion.").  



           11         See Del Rosario v. Clare, 378 P.3d 380, 383-84 (Alaska 2016) (noting "the  

                                                                                                                                     

court that entered the original order is in the best position to interpret its own order" and  

                                                                                                                                      

holding we review court's "interpretation of its own order for abuse of discretion").  

                                                                                                                   



           12          Larson v. Benediktsson, 152 P.3d 1159, 1169 (Alaska 2007) (quoting  

                                                                                                                             

 Ondrusek v. Murphy, 120 P.3d 1053, 1056 n.2 (Alaska 2005)).  

                                                                                          



           13         See id.  

                             



                                                                  -13-                                                             7236
  


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

                                        C.	                                   The Superior Court Did Not Abuse Its Discretion By Proceeding With                                                                                                                                                                                                                                                                                                                                  

                                                                              Trial After Pederson Chose To Leave.                                                                                                                                                           



                                                                              Pederson argues that "[i]t was error and an abuse of discretion to proceed                                                                                                                                                                                                                                                                                                          



 with trial" and allow ASRC to present its case, witnesses, and "arguments with no                                                                                                                                                                                                                                                                                                                                                                                                             



  opportunity for [Pederson] to cross examine the witnesses or object to the presentation                                                                                                                                                                                                                                                                                                                                                



  of evidence or arguments; basically to allow one side to present its case with no defense                                                                                                                                                                                                                                                                                                                                                                          



  or opportunity for the other side to present a case."                                                                                                                                                                                                                                                           But the superior court provided                                                                                                          



 Pederson an opportunity to present his case at trial.                                                                                                                                                                                                                                                      Pederson voluntarily, on his own                                                                                                                                          



  initiative, and against the court's advice "decline[d] to participate in the trial." He stated                                                                                                                                                                                                                                                                                                                                                                               



 before leaving the courtroom that he did not "see any reason why [ASRC's counsel]                                                                                                                                                                                                                                                                                                                                                                            



  can't put on his case."                                                                                                         



                                                                              Pedersonjustifieshis                                                                                                    decision not to participateon                                                                                                                                     the ground that thecourt                                                                                    



  improperly proceeded to trial without deciding his summary judgment motions. But, as                                                                                                                                                                                                                                                                                                                                                                                                              



  explained above, the court did not abuse its discretion in handling Pederson's summary                                                                                                                                                                                                                                                                                                                                                                   



judgment motions. And it is not an abuse of discretion to proceed with trial when a party                                                                                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                 14  The superior court did not abuse its discretion by proceeding  

 voluntarily is not present.                                                                                                                                                                                                                                                                                                                                                                                                                     



 with trial after Pederson chose to depart.  

                                                                                                                                                                                                 



                                        14                                    We note that a court may go so far as to enter default against a non-                                                                                                                                                                                                                                                                                                                                



 participating party.                                                                                           Alaska R. Civ. P. 55(c)(1) ("[I]f the party fails to appear for trial . . .                                                                                                                                                                                                                                                                                                        

 the court may proceed ex parte upon any motion for default or default judgment.");                                                                                                                                                                                                                                                                                                                                                                                                          see  

 also Snyder v. Am. Legion Spenard Post No. 28                                                                                                                                                                                                                                    , 119 P.3d 996, 1001-02 (Alaska 2005)                                                                                                                                                       

  ("Entry of default would unquestionably have been proper [where defendant did not                                                                                                                                                                                                                                                                                                                                                                                                         

  appear for trial], for the 'fails to appear for trial' language of the rule was specifically                                                                                                                                                                                                                                                                                                                                               

  designed to end . . . uncertainty as to a trial court's power in cases like this.").                                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                                              -14-	                                                                                                                                                                                                                                  7236
  


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

                   D.	                The   Superior   Court   Did   Not   Err   By  Determining   Pederson   Had  

                                      Materially Breached A Valid, Enforceable Contract.                                                                                 



                                       1.	               Pederson received valuable consideration.                                            



                                      After trial the superior court ruled that the confidentiality agreement was   



"a valid, enforceable contract."  Pederson argues on appeal that "ASRC gave nothing,                                                                                                     



in return for Pederson's signature, that he was not already entitled to receive, pursuant                                                                                                                                      



to [AS 10.06.430], and that ASRC was [not] already required to provide.                                                                                                                                               Absolutely  

                                                                                                                 15         The  confidentiality  agreement  stated  that  

nothing   was   given   in   consideration."                                                                                                                                                                                               



Pederson's receipt of the requested information was consideration for his assent to the  

                                                                                                                                                                                                                                               



agreement's terms.  Although this consideration appears to be facially valid, Pederson  

                                                                                                                                                                                                                             



argues that "as a matter of law, ASRC did not have a right to" condition his receipt of the  

                                                                                                                                                                                                                                                



information on his assent to the confidentiality agreement, making the agreement an  

                                                                                                                                                                                                                                                 



invalid form of consideration.  

                                                                                        



                                       Alaska Statute 10.06.430 entitles Pederson to the information he requested  

                                                                                                                                                                                                                             



and received.  But in Pederson v. Arctic Slope Regional Corp. we made clear the right  

                                                                                                                                                                                                                                          



to that information is not absolute when we held "a corporation may unilaterally demand  

                                                                                                                                                                                                                                  



a reasonable confidentiality agreement because there is no indication that AS 10.06.430  

                                                                                                                                                                                                                           

prohibits such a demand."16                                                         We explained:  "If the shareholder refuses to sign such a  

                                                                                                                                                                                                                                                     



confidentiality  agreement,  the  corporation  may  then  refuse  to  release  confidential  

                                                                                                                                                                                                                    



information and either institute a declaratory action seeking a court order containing  

                                                                                                                                                                                                                         



                   15                 See  AS 10.06.430(a)-(b) (requiring a corporation to maintain "a record of                                                                                                                                  



its shareholders, containing the names and addresses of all shareholders and the number                                                                                                                                           

and class of the shares held by each" and to allow shareholders to inspect and make                                                                                                                                                     

copies of that record).                  



                   16                 331 P.3d 384, 402 n.54 (Alaska 2014).  

                                                                                                                                   



                                                                                                                      -15-	                                                                                                               7236
  


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

reasonable   confidentiality   protections   or   await   the   shareholder's  exercise   of   legal  

options."17  



                               Regardless whether ASRC would have succeeded in such an action, it had  

                                                                                                                                                                                              



a right to "challenge the inspectability of the information" or seek in court a "reasonable  

                                                                                                                                                                           



protective order[] safeguarding the use and dissemination of sensitive information to  

                                                                                                                                                                                                  



ensure that the information to which a shareholder has a right is used only for the  

                                                                                                                                                                                               

shareholder's proper purpose . . . and does not do damage to the company."18  Forbearing  

                                                                                                                                                                              



from  exercising  those  options  and  delivering  the  requested  information  constitute  

                                                                                                                                                                                

bargained-for performance and valuable consideration.19  

                                                                                               



                               2.             The agreement is not unenforceable as a matter of law.  

                                                                                                                                                                           



                               Pederson also asks us to conclude that the confidentiality agreement was  



improper because: (1) the requested information was not confidential; (2) the agreement  

                                                                                                                                                                                



was   overly                     restrictive;                 and          (3)   the   legislative   history                                       relied           upon   for                  the  

                                                                                                                                                                                             



Pederson holding authorizing a confidentiality agreement does not apply to requests for  

                                                                                                                                                                                                 



the shareholder list.  

                                               



                17             Id.  at 402 (footnote omitted) (citing                                          Bank of Heflin v. Miles                            , 318 So.2d 697,           



699 (Ala. 1975)).       



                18             Id.   at   400-01   (citing   5A   WILLIAM                                                    MEADE                FLETCHER,                    FLETCHER  

                                                                                                  

CYCLOPEDIA OF THE LAW OF CORPORATIONS   2220, 2255, at 286, 449 (2012); M                                                                                                                ODEL  

                                                                   

BUSINESS  CORPORATIONS  ACT   16.04(d);                                                         Pershing Square, L.P. v. Ceridian Corp.                                                    , 923   

A.2d 810, 820 (Del. Ch. 2007)).                           



                19             See RESTATEMENT  (SECOND)  OF  CONTRACTS   71 (A                                                                         M. L      AW  INST . 1981)   

                                         

("The performance may consist of . . . a forbearance . . . .");                                                                        cf. id.      at  73 ("Performance        

of a legal duty owed to a promisor which is                                                            neither doubtful nor the subject of honest                                       

dispute  is not consideration; but a similar performance is consideration if it differs from                                                                                                

what was required by the duty in a way which reflects more than a pretense of bargain."                                                                                           

(emphasis added)).   



                                                                                               -16-                                                                                        7236
  


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

                                                                                                                  

                               a.	       The      superior          court's       finding         that      the     requested  

                                                                                                               

                                         information was confidential is not clearly erroneous.  



                                                                                                                                

                    The superior court found that "[m]aintaining the confidentiality of the  



                                                                                                                         

Confidential Information is important to ASRC and its shareholders," and in support  



                                                                                                                          

cited trial testimony to that effect by ASRC officers and employees.  The court further  



                                       

found that Pederson had agreed the requested information was confidential, citing not  



                                                                                                                   

only the confidentiality agreement itself - in which Pederson agreed the information  



                                                                                                                          

was confidential and he would maintain its confidentiality - but also the initial request  



                                                                                                                       

for shareholder access that Pederson voluntarily submitted. In his request formPederson  



                                                                                                                               

"acknowledge[d] that the information contained in the list is ASRC proprietary and  



                                                                                                                       

confidential  information."                  And,  in  direct  contradiction  of  his  argument  that  the  



                                                                                                                                 

information should not be considered confidential, Pederson states on appeal that he  



                                                                                                                               

"should  .  .  .  be  held  to  the  requirements  and  terms  of  the  standard  Request  for  



                                                                                                                      

Shareholder  Addresses  form  that  he  signed."                               Pederson  points  to  no  evidence  



                                                                                         

contradicting the court's finding that the information was confidential.  



                                                                                                                               

                    Pederson contends the information is not confidential as a matter of law  



                                                                                                                               

because  "AS  10.06.413  provides  shareholders  with  nearly  unfettered  access  to  the  



                                                                                                                         

shareholder list" and "this [c]ourt made it apparent [in Pederson] that when another  



                                                                                                                   

statute or regulation establishes a clear right to records or information, a corporation  



                                                                                                                                  

cannot  claim  that  those  records  are  confidential  for  purposes  of  demanding  a  



                                                                                                                    

confidentiality  agreement  prior  to  allowing  inspection."                               But  this  is  an  overbroad  



                                 

interpretation of our holding.  



                                                                                                                                

                    In Pederson  we stated that "[i]n particular, it would be difficult for the  



                                                                                                                                  

Corporation to argue that it has a confidentiality interest in the compensation it pays to  



                                                                                                                    

its  five  most  highly  compensated  officials  in  light  of  the  mandatory  disclosure  



                                                               -17-	                                                        7236
  


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

                                                                           20  

requirements of the pertinent state regulation."                               The referenced regulation required that                   



                                                             21  

Alaska Native Claims Settlement Act                                                                                                          

                                                                 corporations include in all proxy solicitations a  

                                                                                                                                 22   That  

                                                                                                                                      

                                                                                                                         

statement detailing executive remuneration during the preceding fiscal year. 



requirement has important differences from AS 10.06.413.  A written statement of five  

                                                                                                                                        



employees' remuneration mailed to all shareholders in effect makes that information  

                                                                                                                           



public. In contrast, although AS 10.06.413 requires corporations to make a shareholder  

                                                                                                                            



list  available  for  shareholder  inspection  at  corporate  offices  for  20  days  prior  to  

                                                                                                                                          



shareholder meetings, the statute says nothing about giving shareholders copies of the  

                                                                                                                                         



shareholder list. Instead, shareholders seeking copies of the list must submit shareholder  

                                                                                                                            



requests under AS 10.06.430. And in Pederson we made clear that under AS 10.06.430  

                                                                                                                              



"a corporation may request a confidentiality agreement as a prerequisite to distributing  

                                                                                                                            

                                                         23  When copies of the shareholder list are distributed  

otherwise-inspectable documents."                                                                                            

                                      



on a by-request basis only after receipt of shareholder requests containing confidentiality  

                                                                                                                       



clauses - which Pederson concedes are appropriate - that information does not enter  

                                                                                                                                      



the public domain like an annual statement of executive remuneration mailed to all  

                                                                                                                                          



shareholders. Pederson's argument that as a matter of law the shareholder list could not  

                                                                                                                                         



be confidential fails.  

                          



                                 b.         The agreement was not overly restrictive.  

                                                                                                  



                      Pedersonnext argues theagreement was "overly restrictiveand would have  

                                                                                                                                       



prevented [him] from making use of the list efficiently and effectively for his intended  

                                                                                                                          



           20         331      P.3d       at    403      (citing       3    Alaska         Administrative             Code        (AAC)  



08.345(b)(2)(A) (2014)).   



           21         See 43 U.S.C.  161601-29 (2017).  

                                                                       



           22         3 AAC 08.345(b)(2)(A).  

                                    



           23         331 P.3d at 387.  

                                          



                                                                    -18-                                                              7236
  


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

purpose." This argument relies on our                            Pederson  holding that aconfidentialityagreement                   



may   be   appropriate   if   "it   (1)   reasonably   defines   the   scope   of   what   is   confidential  



information subject to the agreement and (2) contains confidentiality provisions that are                                                       



not   unreasonably   restrictive   in   light   of   the   shareholder's   proper   purpose   and   the  

                                                                                       24   This argument also fails.  

corporation's legitimate confidentiality concerns."                                                                           



                       Pederson's  professed  purpose  in  requesting  the  information  was  "[t]o  

                                                                                                                                    



distribute a proxy solicitation to selected ASRC shareholders for the 2013 ASRC annual  

                                                                                                                                          



meeting  &  election  of  [d]irectors."                            But  Pederson  indisputably  accomplished  that  

                                                                                                                                              



purpose, because the confidentiality agreement permitted him to make an electronic  

                                                                                                                                    



spreadsheet to distribute his solicitation.  ASRC brought suit for breach not because of  

                                                                                                                                                  



Pederson's use, but because he refused to comply with his agreement to return all copies  

                                                                                                                                           



of the information.   To the extent Pederson argues that the agreement unreasonably  

                                                                                                                              



restricted him from relying on others to help generate a spreadsheet containing the  

                                                                                                                                                



information, he also asserted to the superior court that he never accepted any offered  

                                                                                                                                         



assistance, so help apparently was not necessary for him to accomplish his purpose. And  

                                                                                                                                               



although he argues that "[t]he agreement prohibited showing the list to anyone, which  



was impossible given that the printer had to have access," the agreement in fact permitted  

                                                                                                                                     



him to use a specific printing company that had a confidentiality agreement with ASRC.  

                                                                                                                                                       



                       Pederson   also   argues   that   "[t]he   agreement   attempted   to   classify  

                                                                                                                                      



information that should not have been considered confidential to shareholders and is  

                                                                                                                                                  



generally freely made available for Pederson's intended purpose," apparently in reliance  

                                                                                                                                        



on  our  Pederson  holding  that  "it  is  unreasonable  to  designate  as  confidential  all  

                                                                                                                         



information subject to an inspection request without differentiating between confidential  

                                                                                                                                 



and  non-confidential  portions  of  the  requested  information  or  explaining  why  the  

                                                                                                                                               



            24  

                                  

                       Id. at 402.  



                                                                       -19-                                                                      7236  


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

                                                                                                                                           25  

corporation has good cause to believe that all of the information sought is confidential."                                                      



                                                                                                                                           

But in Pederson "the proffered confidentiality agreements purported to subject '[a]ll' of  



                                                                                                                                         

the information to be released to the terms of the confidentiality agreement, without any  

                                                                                                                                   26  The  

                                                                                                                                        

                                                                                                              

attempt to differentiate between confidential and non-confidential information." 



confidentiality agreement here explicitly exempted from its restrictions any information  

                                                                                                                           



that was or became "part of the public domain other than as a result of disclosure by  

                                                                                                                                          



[Pederson] or his agents," any information Pederson could show was otherwise available  

                                                                                                                                



to him on a non-confidential basis, and any information Pederson received from a third  

                                                                                                                                       



party on a non-confidential basis, "provided that [Pederson], after reasonable inquiry,  

                                                                                                                                 



ha[d]  no  reason  to  believe  that  the  third  party  [was]  otherwise  prohibited  from  

                                                                                                                                     

transmitting  the  information  to  [him]."27                              Contrary  to  Pederson's  assertions,  the  

                                                                                                                                        



agreement  did  not  "attempt[]  to  classify  information  that  should  not  have  been  

                                                                                                                                     



considered confidential to shareholders and is . . . freely available."  

                                                                                                                 



                      Finally,Pedersonarguesthat"[t]hemostonerous and patentlyunreasonable  

                                                                                                                         



provision was that if [he] 'violated' any of the terms, ASRC could deny any future  

                                                                                                                                    



requests."  Pederson affirmatively asserts that the standard shareholder request form -  

                                                                                                                                           



which he voluntarily submitted when initially making his request - is appropriate and  

                                                                                                                                         



that he should be bound by its strictures.  Yet that request form contains virtually all of  

                                                                                                                                           



the clauses he contends are unreasonable in the confidentiality agreement, including the  

                                                                                                                                          



enforcement  clause:                  "I  understand  that  any  unauthorized  or  improper  use  of  the  

                                                                                                                                         



           25         Id.  



           26         Id.  (alteration  in  original).  



           27         Had  Pederson  participated  at  trial  perhaps  he  could  have  demonstrated  that  



any   copies   he   kept   contained   only   information   already   available   to   him   on  a   non- 

confidential  basis.   But  he  elected  not  to  present  a  case  at  trial,  so  we  cannot  on  that  basis  

rule  in  his  favor.  



                                                                    -20-                                                              7236
  


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

 shareholder   records,   including   this   list,   will,   among   other   things,   be   cause   for   the  



 Corporation to deny future records requests . . . ."                                                                                         



                                      Although such relief initially was sought in the complaint, ASRC did not                                                                                                                            



 obtain any prospective judicial relief against Pederson based on the contract provision.                                                                                                                                                             



 ASRC obtained judgment that Pederson had materially breached the confidentiality                                                                                                                        



 agreement, injunctive relief requiring Pederson to return shareholder list documents, and                                                                                                                                               



 declaratory judgment that Pederson had "offered for sale a list of shareholders" and                                                                                                                                                   



                                                                                                                                                                                                                                               28  

 "improperly used" the shareholder list as those terms are employed in AS 10.06.430.                                                                                                                                                                  



 We do not know whether ASRC will seek to enforce its putative contract remedy despite  

                                                                                                                                                                                                                                



 the shareholder rights established in AS 10.06.430.  ASRC did not seek a declaratory  

                                                                                                                                                                                                                 



judgment that,based onPederson'sbreachoftheconfidentiality agreement, ASRCcould  

                                                                                                                                                                                                                                    



 deny any further records requests under AS 10.06.430.  If Pederson makes a further  

                                                                                                                                                                                                                             



 AS 10.06.430 records request, ASRC will have the options set out in Pederson :  "either  

                                                                                                                                                                                                                                



 institute a declaratory action seeking a court order containing reasonable confidentiality  

                                                                                                                                                                                                           

 protections or await the shareholder's exercise of legal options."29  

                                                                                                                                                            



                                                         c.	               The  Pederson  holding  is  not  dependent  on  legislative  

                                                                                                                                                                                                                    

                                                                           history.  



                                      Pederson argues the legislative history that "this [c]ourt relied upon in  

                                                                                                                                                                                                                                             



Pederson  for  authorizing the right to  a confidentiality  agreement in  the books and  

                                                                                                                                                                                                                                        



 records of account context" does not apply to requests for the shareholder list. Pederson  

                                                                                                                                                                                                                         



 refers  to  a  Pederson  footnote  stating,  in  reference  to  reasonable  confidentiality  

                                                                                                                                                                                                        



                   28                 See   AS 10.06.430(c) (providing "a defense to an action for                                                                                                                     penalties"  



 brought for denying shareholder access to books and records if the person suing has in                                                                                                                                                       

 the preceding two years "offered for sale a list of shareholders" or "improperly used                                                                                                                                                

 information secured through a prior examination of the . . . record of shareholders").                                                                                                            



                   29                 Pederson, 331 P.3d at 402 (footnote omitted) (citing Bank of Heflin v.  

                                                                                                                                                                                                                                             

Miles, 318 So.2d 697, 699 (Ala. 1975)).  

                                                                                             



                                                                                                                    -21-	                                                                                                            7236
  


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

agreements, "the legislative history indicates that the legislature may have intended to                                                      



                                                                 30  

give corporations just such a tool."                                                                                                                           

                                                                      Regardless of the merits of Pederson's analysis of  



                                                                                                                                                               

the legislative history's distinction between shareholder lists and books and records of  



                                                                                                                                                     

account,  our  holding  in  Pederson  was  not  dependent  on  that  history.                                                               We  instead  



                                                                                                                                       

concluded "that a corporation may unilaterally demand a reasonable confidentiality  



                                                                                                                                                               31  

                                                                                                                                                                     

agreement because there is no indication that AS 10.06.430 prohibits such a demand." 



There  is  no  suggestion  in  Pederson  that  confidentiality  agreements  should  not  be  

                                                                                                                                                              



available when the request is for a shareholder list.  

                                                                                         



                         3.           Pederson failed to establish affirmative defenses at trial.  

                                                                                                                                             



                         Throughout Pederson's appeal briefs he raises arguments pertaining to  

                                                                                                                                          



affirmative defenses against contract enforceability, such as duress, unconscionability,  

                                                                                                                                



fraud, and impossibility, as well as to ASRC's alleged breach of the agreement.  He  

                                                                                                                                                             



argues, for instance:  "the 'agreement' . . . was certainly not the result of fair and arms- 

                                                                                                                                                        



length negotiations . . . . Pederson was forced to sign the 'agreement' because he would  

                                                                                                                                                       



not have been allowed to inspect and copy the list unless he signed"; "[t]he agreement  

                                                                                                



contained terms that Pederson could not reasonably comply with to accomplish his  

                                                                                                                                                             



purpose"; and "[t]he list provided . . . was so darkened grey in the background . . . that  

                                                                                                                                                           



Pederson's copies were nearly unreadable . . . . ASRC had an obligation under the statute  

                                                                                                                                                       



to provide a list usable for Pederson's purpose and intentionally failed to do so."  

                                                                                                                                                         



                         ASRC responds that "the trial record contains no evidence to support any  

                                                                                                                                                            



of these assertions" and that Pederson points to none; it contends "the court's findings  

                                                                                                                                                    



and  the admitted evidence directly  contradict them."                                                     (Emphasis in original.)                         The  

                                                                                                                                                           



             30          Id.  at 402 n.54 (citing Legislative Counsel, Sectional Analysis of Proposed                                             



Code Revision Bills Revising the Corporations Code, 15th Leg., 1st Sess. at 88 (May 7,                                                                          

 1987)).  



             31          Id.  



                                                                             -22-                                                                        7236
  


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

 superior court found Pederson received and signed a legible copy of the confidentiality                                                                                                                                                                                                                                                                                                                              



agreement without proposing any changes to it, received a legible copy of the requested                                                                                                                                                                                                                                                                                                                                                            



information, used that information for his stated purpose, and, as ASRC summarizes on                                                                                                                                                                                                                                                                                                                                                                                                      



appeal, found "that only after receiving those benefits did [Pederson] make a                                                                                                                                                                                                                                                                                                                                                                           post hoc  



claim that the agreement was somehow invalid."  The superior court's conclusion that                                                                                                                                                                                                                                                                                  



"[t]he [a]greement is a valid, enforceable contract" is supported by evidence presented                                                                                                                                                                                                                                                                                                                                                           



at trial.                                   Pederson points to no evidence supporting his allegations, and we will not                                                                                                                                                                                                                                                                                                                                                               



entertain his fact-based claims that the agreement is unenforceable when he chose to                                                                                                                                                                                                                                                                                                                                                                                                         



walk out of the courtroom rather than attempt to establish those facts at trial.                                                                                                                                                                                                                                                                                                                                                                    



                                      E.	                                   Whether ASRC Is                                                                                                     Entitled To An AS 10.06.430(c)                                                                                                                                                                                  Defense In An                                                       

                                                                            Action For Penalties Is Moot.                                                                                                               



                                                                            In   its   complaint   ASRC   requested  declaratory   judgment   that   under  



AS 10.06.430 it was "not required to provide Pederson with access to its shareholder                                                                                                                                                                                                                                                                                                                                                  



records" as a consequence of his breach of the confidentiality agreement.                                                                                                                                                                                                                                                                                                                                                             But at trial                               



ASRC sought more specific declaratory relief, that Pederson had "offered for sale" and                                                                                                                                                                                                                                                                                                                                                                                               



"improperly   used"   the   shareholder   list   he   received   as   those   terms   are   used  in  

                                                                                                 32  The superior court granted ASRCthe requested relief, finding -and  

AS 10.06.430(c).                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



                                      32	                                   The statute provides:                                           



                                                                            An officer or agent who, or a corporation that, refuses to                                                                                                                                                                                                                                                                           

                                                                            allow    a    shareholder,    or    the    agent    or    attorney    of    the  

                                                                            shareholder, to examine and make copies from its books and                                                                                                                                                                                                                                                                   

                                                                            records of account, minutes, and record of shareholders, for                                                                                                                                                                                     

                                                                            a proper purpose, is liable to the shareholder for a penalty in                                                                                                                                                                                                                                                                       

                                                                            the amount of 10 percent of the value of the shares owned by                                                                                                                                                                                                                                                                        

                                                                            the shareholder or $5,000, whichever is greater, in addition                                                                                                                                                                                                                                      

                                                                            to other damages or remedy given the shareholder by law.                                                                                                                                                                                                                                                                               It  

                                                                            is a defense to an action for penalties under this section that                                                                                                                                                                                                                 

                                                                            the person suing has within two years sold or offered for sale                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                                                                                                                                               (continued...)  



                                                                                                                                                                                                                                          -23-	                                                                                                                                                                                                                                7236
  


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

entering declaratory judgment - that Pederson " 'improperly used' the Confidential                                                                           



Information in spring 2014 for purposes other than those he agreed to in the Agreement,"                                                                     



and " 'offered for sale a list of shareholders' of ASRC" as those terms are used in                                                                                                 



AS 10.06.430(c).                       



                            The parties present countervailing arguments regarding the validity of the                                                                            

                                                                                        33   Pederson's "offer[] for sale" email was sent  

court's rulings. But these issues are moot.                                                                                                                                     



in October 2013, more than two years before the court's decision was issued, at which  

                                                                                                                                                                           



point  it  could  no  longer  provide  ASRC a  defense  to  an  action  for  penalties  under  

                                                                                                                                                                           



AS 10.06.430(c).   The spring 2014 proxy mailing was possibly still a defense to an  

                                                                                                                                                                                   



action for penalties when the court issued its decision, but that no longer is the case. We  

                                                                                                                                                                                 



have no indication that Pederson has again sued ASRC for violation and penalties under  

                                                                                                                                                                             



AS 10.06.430(c); a Courtview search reveals no such pending litigation.  Given that the  

                                                                                                                                                                                  



court's declaratory judgment no longer can provide ASRC a defense to an action for  

                                                                                                                                                                                  



              32	            (...continued)  



                                                                                                                             

                             a  list  of  shareholders  of  the  corporation  or  any  other  

                                                                                                                                                          

                             corporation or has aided or abetted a person in procuring a  

                                                                                                                                                  

                            list of shareholders for this purpose, or has improperly used  

                                                                                                                                                

                            information secured through a prior examination ofthebooks  

                                                                                                                                                        

                             and records of account, minutes, or record of shareholders of  

                                                                                                                                                        

                            the corporation or any other corporation, or was not acting in  

                                                                                                                                          

                            good faith or for a proper purpose in making the person's  

                             demand.  



         

AS 10.06.430(c).  



              33            See Ahtna Tene Nene v. State, Dep't of Fish & Game, 288 P.3d 452, 457  

                                                                                                                  

(Alaska 2012) (citing  Ulmer v. Alaska Rest.  & Beverage Ass'n, 33 P.3d 773, 776,  

                                                                                                                                                                              

(Alaska 2001) ("We have previously recognized that we must be especially careful while  

                                                                                                                                                                             

reviewing requests for a declaratory judgment because those cases may easily become  

                                                                                                                                                                        

advisory opinions if the controversy is moot.")); Cochrane v. State, 629 P.2d 512, 512  

                                                                                                                                                                                

(Alaska 1980) (Mem.) (dismissing sua sponte petition for bail review as moot).  

                                                                                                                                                           



                                                                                        -24-	                                                                                7236
  


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

penalties under AS 10.06.430(c), whether Pederson "offered for sale" or "improperly                                                           



                                                                                                                                                           34  

used" the shareholder list as contemplated by the statute is now a moot issue;                                                                                  we  



                                                                                                                                                35  

                                                                                                                                    

therefore vacate the superior court's declaratory judgments on these points. 



             34          Ahtna Tene Nene                   , 288 P.3d at 457 (quoting                         Ulmer, 33 P.3d at 776) ("[A]                  



case is moot if the party bringing the action would not be entitled to any relief even if it                                                                       

prevails.").  



             35           We nonetheless note some concerns about the declaratory judgments.  

                                                                                                                                          



                         ASRC originally sought a "[d]eclar[ation] that ASRC has no obligation to  

                                                                                                                                                                  

provide Pederson access to  ASRC's Confidential Information  for  two  years."                                                                                But  

                                                                                                                                                              

AS 10.06.430(c) provides only "a defense to an action for penalties," not an unfettered  

                                                                                                                                                   

license to refuse future proper records requests.  See also AS 10.06.430(d) ("Nothing in  

                                                                                                                                                                  

this chapter impairs the power of a court, upon proof by a shareholder of a demand  

                                                                                                                                                      

properly made and for a proper purpose, to compel the production for examination by  

                                                                                                                                                                 

the shareholder of the . . . record of shareholders of a corporation."). And it is not readily  

                                                                                                                                                         

apparent that ASRC was entitled to the defense AS 10.06.430(c) provides.  

                                                                                                                                                 



                         ASRC asserted that Pederson's demand for compensation in exchange for  

                                                                                                                                                                 

turning over  the spreadsheet constituted  an  "offer  for  sale" of the shareholder  list.  

                                                                                                                                                                       

Pederson's  compensation  demand  may  have  been  both  unnecessarily  hostile  and  

                                                                                                                                                              

frivolous given the clear language of the confidentiality agreement. But we are skeptical  

                                                                                                                                                     

that his behavior falls within the purview of a provision that appears intended to deter  

                                           

the sale of confidential information to third parties in competition with or otherwise  

                                                                                                                                                   

adverse to a corporation.  

                         



                         Nor do we see evidence in the record that Pederson "improperly used" the  

                                                                                                                                                                

confidential information.  The only "improper[] use" identified in the superior court's  

                                                                                                                                                        

order was the spring 2014 proxy solicitation; that mailing was not among the purposes  

                                                                                                                                                     

Pederson listed in his access request, which covered only solicitations for the 2013  

                                                                                                                                                            

election.  But a proxy solicitation is not an "improper[] use" under AS 10.06.430(c); it  

                                                                                                                                                                   

is the archetypal purpose of shareholder access requests.  ASRC and the superior court  

                                                                                                                                                            

appear to have mistakenly conflated a contract violation with a statutory violation.  

                                                                                                                                            



                                                                               -25-                                                                         7236
  


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

               F.	             There Was No Error In The Denial of Pederson's Disqualification                                                                

                              Motion.  



                               1.	           Actual bias   



                              Pederson   argues   the   superior  court   "exhibited   bias   against   [him]   or  



partiality in favor of [ASRC] or [ASRC's] counsel," citing unsubstantiated allegations                                                                                      



of partiality and collusion.                                  "A judicial officer must disqualify himself if he 'feels that,                                                               



                                                                                                                                               36  

for any reason, a fair and impartial decision cannot be given.' "                                                                                                                       

                                                                                                                                                     We review for abuse  



                                                                                                                                                                                            

of discretion the superior court's denial of Pederson's disqualification motion on bias  



                    37  

grounds.                  



                              Pederson cannot rely solely on the court's adverse rulings as evidence of  

                                                                                                                                                   

bias;  he  must  point  to  specific  words  or  actions  showing  the  court  was  partial.38  

                                                                                                                                                                                                       



Pederson otherwise must show the court "formed an opinion of [him] from extrajudicial  

                                                                                                                                                                         

sources, resulting in an opinion other than on the merits."39                                                                                  He has not made these  

                                                                                                                                                                                         



showings.  

                          



                              As discussed earlier the court's rulings are supported by the record, and  

                                                                                                                                                                                             



Pederson  demonstrates  no  extrajudicial  source  of  bias.                                                                          Although  Pederson  claims  

                                                                                                                                                                                     



"[e]very single decision and anything requiring discretion of any kind went in favor of  

                                                                                                                                                                                                



[ASRC]," "the fact that the [superior court] frequently ruled against [Pederson] does not,  

                                                                                                                                                                                             



               36             Heber              v.       Heber,               330           P.3d           926,           933           (Alaska               2014)             (quoting  



AS 22.20.020(a)(9)).   



               37             Id. at 934; see also Snider v. Snider, 357 P.3d 1180, 1184 (Alaska 2015).  

                                                                                                                                                                                      



               38             See Williams v. Williams, 252 P.3d 998, 1010 (Alaska 2011).  

                                                                                                                                                           



               39             Id.  



                                                                                              -26-	                                                                                      7236
  


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

                                                                                                            40  

by itself, demonstrate that recusal was required."                                                               Disqualification "was never intended                            



to enable a discontented litigant to oust a judge because of adverse rulings made," and                                                                                                     



"[m]ere evidence that a judge has exercised his judicial discretion in a particular way is                                                                                                      

                                                                                            41   The baseless allegations Pederson advances  

not sufficient to require disqualification."                                                                                                                                    



do not suggest the court's interactions with Pederson were influenced by anything other  

                                                                                                                                                                                         



than "the facts adduced [and] the events occurring at trial," and they  were not "so  

                                                                                                                                                                                            

extreme  as  to  display  clear  inability  to  render  fair  judgment."42                                                                                     Pederson's  bias  

                                                                                                                                                                                          



allegations have no merit, and the superior court did not abuse its discretion in declining  

                                                                                                                                                                               



to disqualify itself.  

                               



                              2.             Appearance of bias  

                                                                                   



                              Pederson also claims recusal was required because the superior court's  

                                                                                                                                                                                    



alleged  advocacy  on  behalf  of  ASRC  gave  rise  to  a  reasonable  appearance  of  

                                                                                                                                                                                              



impartiality.                    "[W]hether  [the  superior  court]'s  participation  in  a  case  would  lead  

                                                                                                                                                                                          



reasonable people to question [its] ability to be fair is a question of law reviewed de  

                                                                                                                                                                                              

novo,"43                                                                                                                                44  

                                                                                                                                                                               

                     and requires "a 'greater showing' . . . for recusal."                                                                     We conclude Pederson  



                                                                                                                                                                                          

does not make that "greater showing" because he does not present - and the record does  



                                                                                                  

not reveal -  evidence to substantiate this claim.  



               40             Patterson v. Cox                      , 323 P.3d 1118, 1123 (Alaska 2014).                                                   



               41             Luker v. Sykes                   , 357 P.3d 1191, 1199 (Alaska 2015) (alteration in original)                                                      



(quoting  Sagers v. Sackinger                                     , 318 P.3d 860, 867 (Alaska 2014)).                              



               42             See Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001) (quoting Liteky  

                                                                                                                                                                                       

v. United States, 510 U.S. 540, 551 (1994)).  

                                                                                  



               43             Heber v. Heber, 330 P.3d 926, 934 (Alaska 2014); see also Snider v.  

                                                                                                                                                                                               

Snider, 357 P.3d 1180, 1184 (Alaska 2015).  

                                                                                      



               44             Patterson, 323 P.3d at 1123 (quoting Greenway v. Heathcott, 294 P.3d  

                                                                                                                                                                                         

 1056, 1063 (Alaska 2013)).  

                                               



                                                                                             -27-                                                                                        7236
  


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

                                                                  The "advocacy" Pederson cites in support of his appearance of impropriety                                                                                                                                                                                                                                     



claim includes the superior court's recounting of Pederson's agreement to participate in                                                                                                                                                                                                                                                                                                                                        



limited discovery at the September trial call, the court's discussion with ASRC at the                                                                                                                                                                                                                                                                                                                       



October status conference scheduled to address Pederson's refusal to participate                                                                                                                                                                                                                                                                                                                                              in  



discovery, which Pederson did not attend, and the court's advice to Pederson that as a   



named party and witness he needed to be present at trial.                                                                                                                                                                                                                                                  Pederson accuses "[t]he                                                                         



 [superior]   court  [of   having]   absolutely   no   concern   for   protecting   the   rights   of   the  



defendant to be represented during the trial [when it advised Pederson to remain at trial                                                                                                                                                                                                                                                                                                                             



due to his status as a party and witness]; only to get an additional factual basis for [its]                                                                                                                                                                                                                                                                                                                          



impending ruling" in ASRC's favor.                                                                                                                                                     



                                                                  ContrarytoPederson'scharacterizations,thesuperiorcourt                                                                                                                                                                                                                                    took affirmative   



measures to ensure Pederson - an attorney - understood the ramifications of his                                                                                                                                                                                                                                                                                                                                           



actions:   (1) the court confirmed Pederson's assent to reopen limited discovery at the                                                                                                                                                                                                                                                                                                                                   



 September trial call; (2) the court informed Pederson at the start of trial that as a party                                                                                                                                                                                                                                                                                                                   



and witness he needed to be present; and (3) once Pederson walked out of trial, the court                                                                                                                                                                                                                                                                                                                       



emailed   an   order   giving   Pederson   an   opportunity   to   present   evidence   at   trial   the  



following day. We conclude that the court's actions would not cause reasonable people                                                                                                                                                                                                                                                                                                                    

to doubt the court's ability and willingness to be fair.                                                                                                                                                                                                              45  



V.                               CONCLUSION  



                                                                  The superior court's declaratory judgments regarding AS 10.06.430(c) are  

                                                                                                                                                                                                                                                                                                                                                                                                                           



VACATED as moot, but its decision is AFFIRMED in all other respects.  

                                                                                                                                                                                                                                                                                                                              



                                 45                               Cf. Olivit v. City &Borough of Juneau                                                                                                                                                   , 171 P.3d 1137, 1147 (Alaska 2007)                                                                                                                



(noting superior court's "exemplary efforts in instructing and advising" pro se litigant   

on how to                                              proceed   in   analysis when                                                                                                            determining  court was not biased                                                                                                                                                in   granting  

 summary judgment).   



                                                                                                                                                                                                            -28-                                                                                                                                                                                                   7236
  

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