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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lucas Borer v. The Eyak Corporation (4/1/2022) sp-7588

Lucas Borer v. The Eyak Corporation (4/1/2022) sp-7588

           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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

LUCAS  BORER,                                                    )  

                                                                 )     Supreme  Court  No.  S-17805  

                                Appellant,                       )  


                                                                 )     Superior Court No. 3AN-19-10107 CI  

           v.                                                    )  


                                                                 )    O P I N I O N  


THE EYAK CORPORATION,                                            )  


                                                                 )    No.7588 - April 1, 2022  

                                Appellee.                        )  




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


                      Judicial District, Anchorage, Gregory A. Miller, Judge.  


                      Appearances: Lucas Borer, pro se, Cordova, Appellant. Matt  




                      Anchorage, for Appellee.  


                      Before:   Winfree, Chief Justice, Maassen, and Borghesan,  


                      Justices.  [Carney, Justice, not participating.]  


                      BORGHESAN, Justice.  



                      A winning candidate for a seat on the board of directors of an Alaska  


NativeCorporationdeclinedto sign thecorporation's confidentialityagreement and code  


of  conduct.           When  the  corporation  denied  him  a  seat  on  the  board,  he  sought  a  


declaratory judgment that these agreements are unlawful and an injunction that he be  


seated on the board.  He argues that the scope of the confidentiality agreement is so  

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

broad, and the code of conduct so apt to be used to suppress dissenting directors, that                                                                                                                   

they are inconsistent with directors' fiduciary duties to the corporation. Because he does                                                                                                               

not challenge the application of these agreements to any concrete factual situations, we                                                                                                                    

conclude that his claims are not ripe for adjudication. We therefore affirm the judgment                                                                                                    

and the award of attorney's fees against him.                                                                  

II.             FACTS AND PROCEEDINGS                

                A.               Facts  

                                 The   Eyak   Corporation   is   the   Alaska   Native   Village   Corporation   for  

                                                                                                                                                                              1   Eyak's board  

Cordova, formed pursuant to the Alaska Native Claims Settlement Act.                                                                                                                                 

is made up of nine members who serve staggered three-year terms; each year, three  


directors are up for election. Eyak's bylaws require several qualifications to serve on the  


board. Only one qualification is in dispute here: "Any person who is elected or selected  


to  be  a  Director  shall  be  seated  as  a  Director  only  after  he  or  she  executes  an  


acknowledgment  agreeing  to  comply  with  the  Corporation's  code  of  conduct  and  


executestheCorporation'sconfidentialityagreement." Therequirementto executethese  


two documents (collectively referred to as the Agreements) has been in place since 2012.  


                                 Lucas Borer previously served on the Eyak board from 1985-1989 and ran  


for the board again unsuccessfully in 2012, 2015, 2017, and 2018.   In 2015 Borer  


corresponded with the chair of Eyak's board of directors, criticizing Eyak's bylaws and  


the Agreements.  Eyak declined to amend its governing documents at that time.  


                                 Borer ran again in 2019.  At the top of the candidate application form, the  


qualifications for directors were clearly stated.  Borer signed the form, right below a  


statement that read:  "I understand that the information set forth above will be relied  




                                 See generally 43 U.S.C. § 1607.  

                                                                                                      -2-                                                                                                       7588  

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


upon  by  The  Eyak  Corporation  in  the  preparation  of  its  election  materials  for  the  


upcoming Annual Meeting of Shareholders."  


                    Borer received enough votes in theelectionto win one of the three available  


seats on the board.  At a board meeting following the election Borer and the two other  


winning candidates were asked to execute the Agreements before they were seated.  


Borer asked for more time to review the Agreements with his counsel before he signed  


them. Because Borer did not execute the Agreements at the meeting, Eyak did not allow  


him to be seated as a director at that time.  


                    Thechair ofEyak's board ofdirectorssent Borer aletter congratulatinghim  


on his election, attaching the Agreements, and advising him that he must execute the  


Agreements to qualify to be seated as a director under the bylaws. The chair emphasized  


that the board wanted "to make sure the shareholders who voted for [Borer] are not  


disenfranchised while timely-seating elected directors and avoiding vacant seats on the  


Board."  The chair requested that Borer execute the Agreements by May 28, 2019, or  


else Eyak would "proceed to fill the vacancy."  


                    Four days before the execution deadline, Borer responded with a letter  


addressed to the board. Borer claimed that he had been pressured to sign the Agreements  


and that, "[h]aving seen . . . a similar document in the past, [he] suspected that this one  


would similarly attempt to take away or reduce [his] rights as a board member."  


                    Borer then outlined numerous issues with the Agreements that he claimed  


would result in breach of fiduciary duty and violation of Alaska law - including many  


that  are  now  the  basis  for  his  appeal.                   Borer  stated  that  although  he  "completely  


underst[ood]  the  need  for  a  reasonable  Code  of  Conduct"  he  claimed  that  the  


Agreements  "effectively  prohibit  any  communication  between  a  director  and  a  

                                                               -3-                                                         7588

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


 shareholder."   He maintained that he was not required to sign the Agreements to qualify                                                                                                                                                                                                                                                                                      

for the board, asserting that he had "legitimate and legal reasons for not signing the                                                                                                                                                                                                                                                                                                          

 [Agreements]" and that executing the Agreements "would represent an abdication of                                                                                                                                                                                                                                                                                                                   

 [his] responsibilities as a director."                                                                         

                                                              Eyak responded in a June 27 letter to Borer stating that it had revised the                                                                                                                                                                                                                                                       

Agreements in response to his concerns.                                                                                                                                                    Eyak gave Borer a new deadline of July 11 to                                                                                                                                                               

execute the revised Agreements and again notified him that if he failed to do so, the                                                                                                                                                                                                                                                                                                           

board would give his seat to someone else.                                                                                                                                      

                                                              Borer did not sign the Agreements prior to the July 11 deadline; it appears                                                                                                                                                                                                                            

that he never responded at all.                                                                                                           On July 17 Eyak notified Borer that it had seated another                                                                                                                                                                         

eligible candidate as director to fill the vacancy.                                                                                                                                 

                                                              Borer's attorney sent a letter to Eyak demanding that Borer be seated on the                                                                                                                                                                                                                                                        

board.   The letter stated that "[i]nviting shareholders to vote for an ineligible candidate                                                                                                                                                                                                                                                                      

is a misleading proxy solicitation" and reiterated many of Borer's concerns from his                                                                                                                                                                                                                                                                                                             

earlier letter to the board.                                                                                           He also proposed further revisions to the Agreements.                                                                                                                                              

                                                              Eyak refused Borer's demand.                                                                                                                   Citing its bylaws, Eyak stated that it had                                                                                                                                      

"been clear with its shareholders and Mr. Borer at every step of the nominations and                                                                                                                                                                                                                                                                                                         

election process that only eligible candidates who execute [the Agreements] will be                                                                                                                                                                                                                                                                                                               

qualified to be seated as directors."                                                                            

                               B.                             Proceedings  

                                                              Borer filed a complaint for declaratory and injunctive relief in the superior  


court.  Borer sought "a declaratory judgment stating he remains a duly elected [Eyak]  


director and an injunction requiring [Eyak] to seat him on its board."  He claimed that  


he was validly elected and that signing the Agreements "would reduce or eliminate his  




                                                              The italics appear in the original document.  

                                                                                                                                                                                                  -4-                                                                                                                                                                                    7588  

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


ability to exercise his fiduciary duty to the corporation."  Borer also took issue with  


various enforcement provisions of the Agreements, including provisions that he claimed  


would "eliminate the director's ability to participate in board meetings and eliminate the  


director's statutory right to inspect corporate information." Borer also filed a motion for  


preliminary injunction directing that Eyak seat him as director.  In that motion, Borer  


stated "he had just been handed [the Agreements] th[e] morning" of the board election.  


                    Eyak opposed the motion for preliminary injunction and disputed Borer's  


characterization of the facts.  Eyak argued that Borer had "full knowledge of the Code  


ofConduct and Confidentiality Agreement'sprovisionsandpurpose,"pointing to several  


pieces of evidence:   a newsletter  issued  to shareholders describing Eyak's director  


confidentiality   agreement;   Borer's   previous   campaigns   for   the   director   seat;  


correspondence between Borer and the chair of the board regarding the Agreements in  


2015; and the fact that Borer had "affirmatively represented his agreement to be bound  


by those documents in the event he was elected when he signed and returned the 2019  


Candidate Application Form."  


                    The superior court denied Borer's motion for preliminary injunction.  The  


court first noted that "[w]hen this court read Mr. Borer's opening motion, this court was  


left with the impression that Mr. Borer had no prior notice of the Code of Conduct, that  


the document was essentially thrust upon him minutes before the vote, and that the  


document may even have been drafted or at least revised specifically to limit him if he  


won," but that Eyak's opposition and attached exhibits "ma[de] clear that that was not  


the case."  The court ruled that Borer had not met his legal burden of demonstrating  


either a "clear showing of probable success on the merits" or "substantial questions  


going to the merits of the case."  It found that "Borer [had] not shown that he will suffer  


irreparable harm, or that [Eyak] won't."  It also found that Eyak could be irreparably  


harmed if Borer were seated without signing the code of conduct because the code  

                                                               -5-                                                         7588

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

 "insures against a director improperly disclosing . . . confidential corporate business                                                                                                                                                                                                                                                                         

 opportunities."   Borer moved for reconsideration, which the superior court denied.                                                                                                                                                                                                                                                                  

                                                              Eyak   then   moved   for   summary   judgment,   arguing   that   Borer   was   not  

 qualified to be seated as a director due to his failure to sign the Agreements and that its                                                                                                                                                                                                                                                                                                 

 code of conduct and confidentiality agreement do not violate Alaska law.                                                                                                                                                                                                                                                                    Eyak argued   

 that Borer "asks for the extraordinary:                                                                                                                                       invalidation of a corporation's bylaws based on                                                                                                                                                               

 a series of hypothetical events and the removal of a qualified, sitting director to seat an                                                                                                                                                                                                                                                                                                 

 unqualified director."   

                                                              The superior court heard oralargumentandsubsequently granted summary                                                                                                                                                                                                                             

judgment to Eyak in a decision on the record.                                                                                                                                                                  The court stated without elaboration that                                                                                                                                

 "[e]verything is ripe" for adjudication.  The court then determined that "[t]here are no  

 disputed material facts," observing that Borer had refused to sign Eyak's Agreements                                                                                                                                                                                                                                                            

 despite   agreeing   to   do   so   on   the   candidate   application   form   and   that   signing   the  

 Agreements was a requirement to become an Eyak director.                                                                                                                                                                                                                     The court also determined,                                           

 pointing generally to "Alaska statutes that permit [corporate] bylaws to define . . . codes                                                                                                                                                                                                                                                                          

 of conduct[] and board governance," that Eyak's requirement to sign the Agreements                                                                                                                                                                                                                                                              

 was "a requirement that squares with the law."                                                                                                                                                                        The court also indicated that it viewed                                                                            

 Borer's challenges as merely hypothetical, referring to decisions of Delaware courts that                                                                                                                                                                                                                                                                                              

 declined to strike down corporate bylaws based on "hypothetical risk of harm."                                                                                                                                                                                                                                                                                           3  

                                                              Eyak  moved  for  20%  of  its  attorney's  fees  under  Alaska  Civil Rule  


  82(b)(2), which the court granted.  Borer appeals the grant of summary judgment, the  


 denial of his motions for summary judgment and preliminary injunction, and the award  


 of attorney's fees.  


                               3                             E.g.,  Stroud  v.  Grace,  606  A.2d  75,  96  (Del.   1992).  

                                                                                                                                                                                               -6-                                                                                                                                                                                                      7588  

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

III.	       STANDARD OF REVIEW               


                       We review a grant of summary judgment de novo.                                                                             

                                                                                                               Whether an issue is ripe  



for adjudication is a legal determination that we consider de novo.                                                 We review an award  


                                                                       and will reverse "only if the award is 'arbitrary,                  

of attorney's fees for abuse of discretion 



capricious, manifestly unreasonable, or stems from improper motive.' " 

IV.	        DISCUSSION  


            A.	        Borer's  Challenge  To  The  Corporation's  Code  Of  Conduct  And  


                       Confidentiality Agreement Is Not Ripe For Adjudication.  


                       Borer's claimthat he was validly elected as a director hinges upon his view  


that the Agreements are unlawful. Eyak's bylaws required Borer to sign the Agreements  



in order to be seated as a director,  and when Borer refused to do so, Eyak in turn refused  


to seat Borer.   Borer argues that because the Agreements are unlawful, the bylaws'  

            4          Parker  v.  Tomera,  89  P.3d  761,  765  (Alaska  2004).  

            5          State  v.  ACLU  of  Alaska ,  204  P.3d  364,  368  (Alaska  2009).  

            6          Nichols  v.  State  Farm  Fire  &  Cas.  Co.,  6  P.3d  300,  303  (Alaska  2000).  

            7          Id.  (quoting  Jones  v.  Jones,  925  P.2d   1339,   1340  (Alaska   1996)).  

            8          Eyak's b        ylaws  mandate:   "Any  person  who  is  elected  or  selected to be  a  

Director  shall  be  seated  as  a  Director  only  after  he  or  she  executes  an  acknowledgment  

agreeing   to   comply   with   the   Corporation's   code   of   conduct   and   executes  the  

Corporation's  confidentiality  agreement."  

                                                                         -7-	                                                                  7588

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


requirement  that  he   sign them cannot lawfully be enforced,                                                                                so Eyak had no valid                  

grounds to refuse to seat Borer as director.                                                   10  

                              A threshold issue in this case is which versions of the Agreements are  


relevant in this dispute:  the versions in effect when Borer was initially elected in May  


2019, or the versions that Eyak revised in June 2019 in response to Borer's concerns.  


Borer argues that the earlier versions of the Agreements are relevant because they were  


in effect when his qualifications as a director were being determined at the May 2019  


board meeting. That is not correct. The board revised the agreements in light of Borer's  


concerns and then gave him an opportunity to be seated as a director if he signed them.  


In other words, Eyak determined Borer was not eligible because he did not sign the  


revised agreements.  We therefore consider the revised Agreements in our analysis.  


                              Borer's argument in a nutshell is that were he to sign the Agreements as a  


condition of being a director of the board, the Agreements would impermissibly burden  


his ability to fulfill his fiduciary duties to the corporation.  Under Alaska law a director  


has a fiduciary duty to act in good faith, to act in a manner he or she reasonably believes  


to be in the best interests of the corporation, and to act with care.11                                                                              Borer identifies six  


               9              A corporation's internal governance rules must not be contrary to law.                                                                                              

AS 10.06.230(e) ("The bylaws may contain any provision, not in conflict with law or the                                                                                                   

articles of incorporation, for the management of the business of the corporation and for                                                                                                  

the conduct of the affairs of the corporation, including . . . the qualifications . . . of                                                                                             


               10             Except  for  the  limited  means  prescribed  by  the  corporations  code,  "a  


director may not be removed before the expiration of the term of office of the director."  


AS 10.06.460(b).  Eyak's bylaws also specify that "[n]o director may be removed from  


office before the expiration of his term except as provided [in the bylaws]," which  


prescribe limited procedures for removal.  


               11             AS 10.06.450(b); Holmes v. Wolf, 243 P.3d 584, 598-99 (Alaska 2010)  



                                                                                             -8-                                                                                     7588

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aspects  of  the  Agreements  he  was  required  to  sign  that,  in  his  view,  would  preclude  him  

from  fulfilling  those  duties:    

                      (1)  the  lack  of  reporting  procedures  for  illegal  activity;   

                      (2)  the  failure  to  provide  for  an  impartial  disciplinary  tribunal;    

                      (3)  the  scope  of  the  confidentiality  agreement;   

                      (4)  the  requirement  to  acknowledge  that  the  Board  acts  "as  a  group  and  not  


                      (5)  the  sanction  of  withholding  travel  funds;  and   

                      (6)  the sanction of restricting a director's access to confidential information.  

                      The  first  two  problems  can  be  addressed  summarily.   Borer's  argument  that  

the  confidentiality  agreement  makes  no  exception  for  reporting  illegal  activity  is  based  

on  the  prior  version  of  the  agreement  that  is  no  longer  in  effect.   In  response  to  Borer's  

concerns,  Eyak  added  language  clarifying  that  its  confidentiality  code  does  not  "limit  [a  

director's]   duty   to  report   a   violation of   law."    As   explained   above,   it   is   the  updated  

version  of  the  Agreements  we  are  reviewing  on  appeal.   Therefore  this  particular  critique  

is  moot,  and  we  decline  to  address  it.12  

                      Borer's second argument is that the corporation's disciplinary process for  


board members does not provide an impartial tribunal and therefore violates the Due  


           11         (...continued)  


(citing  AS  10.06.450(b)  and  describing  director's  statutorily  prescribed  duties  as  

                                                        LETCHER  CYC. C            ORP. § 837.50 (2021) ("[A] director            

"fiduciary dut[ies]"); accord 3A F 

or officer of a corporation owes the corporation complete loyalty, honesty, and good                                           


           12         Ahtna Tene Nené v. State, Dep't  of Fish & Game , 288 P.3d 452, 457  


(Alaska 2012) (explaining that we refrain from deciding moot questions, particularly  


where declaratory relief is sought).  


                                                                     -9-                                                              7588

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


Process Clause of the Fourteenth Amendment.                                                                         But Borer waived this argument                                                       by  


failing to raise it before the superior court.                                                             

                                                                                                                                                                                            15   Borer  

                                The remainder of Borer's challenges are not ripe for adjudication.                                                                                                


asks this court to strike down a corporation's internal governance rules even though  


those rules have not yet been applied to him in a concrete factual scenario.  Eyak, citing  


Delaware law, argues that Borer cannot challenge corporate internal rules based on  


hypothetical abuses.  Although Eyak is correct that Delaware courts "typically decline  


to decide issues . . . that create hypothetical harm,"16  we see no need to adopt Delaware  


                13              McMullen v. Bell                         , 128 P.3d 186, 190 (Alaska 2006) ("Ordinarily 'this court                                                                 

will not consider an issue raised for the first time on appeal.' " (quoting                                                                                                      State v. Nw.   

 Constr., Inc.                , 741 P.2d 235, 239 (Alaska 1987))). Borer argues that Eyak first raised the                                                                                               

due process issue before the superior court, but this is not quite accurate.                                                                                                            Eyak did   

mention "due process" in its opposition to Borer's motion for preliminary injunction, but                                                                                                                

it did so as an analogy to support the validity of its discretionary sanction procedures -                                                                                                                

not to raise due process as a separate issue.                                             

                14              In any event Eyak is a private corporation, not a governmental entity, and  


therefore is not bound by the requirements of due process. See Anderson v. Alaska Hous.  


Fin. Corp., 462 P.3d 19, 26 (Alaska 2020) (explaining that due process clause applies  


only to governmental actors, including government-controlled corporations). Although  


Borer emphasizes that Eyak receives over 90% of its revenue from the government,  


Eyak's board is elected by its shareholders - not the government.  Borer thus cannot  


claimthat Eyak is a government-controlled corporation subject to thedue process clause.  


Id. at 26 (holding that corporation was "wholly controlled by the [s]tate" because "[a]ll  


seven members of [corporation's] board [we]re government officials or appointed by the  



                15              The superior court concluded without analysis that "[e]verything is ripe."  


But because whether a claim is ripe for adjudication is a question of law, we review this  


issue de novo.  State v. ACLU of Alaska, 204 P.3d 364, 368 (Alaska 2009).  


                16              Boilermakers Loc. 154 Ret. Fund v. Chevron Corp., 73 A.3d 934, 940 (Del.


Ch. 2013) (quoting 3 STEPHEN  A. R                                                    ADIN, T           HE  BUSINESS  JUDGMENT  RULE :    FIDUCIARY



                                                                                                   -10-                                                                                             7588

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

rules   here.    Our   ripeness   doctrine   aptly   deals   with   the   question   of   whether   it   is  

appropriate to render declaratory judgment based on hypothetical applications of the                                                            

challenged law.   

                       Alaska'sdeclaratory judgment                         actrequirestherebean "actual controversy"             

                                                                17   This requirement "reflects a general constraint  

for a court to issue declaratory relief.                                                                               

on the power of courts to resolve cases,"18  cautioning that courts should not "resolve  


abstract  questions  of  law."19                       Ripeness  is  an  element  of  the  "actual  controversy"  




                       A ripe suit will present "a substantial controversy, between parties having  


adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a  


declaratory judgment."21   The primary concern of ripeness is "whether the case involves  


uncertain or contingent future events that may not occur as anticipated, or indeed may  


not occur at all."22   The doctrine of ripeness thus "requires a plaintiff to claim that either  


            16         (...continued)

DUTIES OF  CORPORATE  OFFICERS  3498  (6th  ed.  2009)).

            17         ACLU  of  Alaska ,  204  P.3d  at  368.   

            18         Id.  

            19         Id.  at  369  (quoting  Bowers  Office  Prods.,  Inc.  v.  Univ.  of  Alaska ,  755  P.2d  

 1095,   1097-98  (Alaska   1988)).  

           20          Id.   at 368.   Mootness  and   standing  are  the  other  elements  of  the  "actual  

controversy"  requirement.   Id.  

           21          Id. at 369 (quoting Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d  


357, 359 (Alaska 2001)).  


           22          Brause, 21  P.3d  at  359  (quoting  13A CHARLES   ALAN   WRIGHT   ET   AL.,  


FEDERAL  PRACTICE AND  PROCEDURE   §  3532,  at   112  (2d  ed.   1984)).  

                                                                       -11-                                                                 7588

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


a legal injury has been suffered or that one will be suffered in the future."                                                                   There is no      


"set formula" for determining ripeness.                                                                                                                    

                                                                                Instead, we balance "the fitness of the issues  


for   judicial   decision"  with  "the  hardship  to  the  parties  of  withholding  court  

                             25   As a part of this balancing test, we consider whether "concrete factual  


scenarios" would assist in bringing about the "ultimate resolution of the issue before  



                          In State v. ACLU of Alaska the plaintiffs brought a pre-enforcement suit  


challengingtheconstitutionalityofastatestatuteprohibiting marijuanapossession.27  We  


held that the challenge was unripe.28                                  We assessed hardship, which we determined was  


"slight" because the sole hardship alleged - the risk of criminal liability for marijuana  


possession - already existed under federal law prohibiting marijuana possession.29  We  


assessed  fitness  for  decision,  emphasizing  that  our  analysis  about  the  statute's  


constitutionality "could be aided by one or more concrete factual scenarios."30                                                                                We  


discussed the possibility of "cases where . . . the statute could permissibly be applied"  


without constitutional problem, reasoning that adjudication of "an actual case, or several  


             23          Id.

             24          Id.

             25          ACLU of Alaska                  , 204 P.3d at 369 (quoting                         Brause, 21 P.3d at 359).

             26          Id.  at 373.

             27          Id. at 366.  


             28          Id. at 373-74.  


             29          Id.  at 369-71, 374.        

             30          Id.  

                                                                               -12-                                                                         7588

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


actual cases" could cast the issues presented "in a different light."                                                               We concluded that              

given the potential for concrete facts to aid the decision and the limited hardship to the                                                                          


parties of withholding a decision, the case was not ripe for adjudication.                                                                        


                          In this case, too, the risks of making a decision without concrete facts  


outweigh the harm of withholding a decision.  There is no doubt that Borer will suffer  


some hardship if we decline to adjudicate his claims:  he will lose his legal claim to a  


directorship on Eyak's board and the incumbent rights and duties that he would gain as  


a director.  Yet it is worth noting that Borer has contributed to this hardship himself by  


rejecting the Agreements out of hand without waiting to see whether they would actually  


place him in a position of being unable to fulfill his fiduciary duties.  And this hardship  


for Borer must be weighed against the fitness of his claims for adjudication.  


                          Because Borer does not allege any concrete factual scenarios where the  


Agreements are being applied, he fails to show precisely how, and to what degree, the  


Agreements are in tension with a director's fiduciary duties.  Although it is certainly  


possible to imagine overbroad or abusive applications of these Agreements, his "pre- 


enforcement" challenge leaves us uncertain whether the Agreements would actually be  


used in those ways.  Indeed, there is far greater uncertainty about how the relatively  


general terms of these Agreements would be applied to specific factual scenarios than  


there was when we concluded that a pre-enforcement challenge to laws prohibiting  

                                                                 33   Borer's claims require us to decide whether Eyak's  


marijuana possession was unripe. 

Agreements are in irreconcilable tension with a director's fiduciary duties. As explained  


             31           Id.  at 372.   

             32           Id.  at 373-74.   

             33           Id.  

                                                                                 -13-                                                                           7588

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


in detail below, we cannot confidently answer that question without seeing how the  


challenged terms of these agreements are applied to real-world situations.  


                     1.        Scope of the confidentiality agreement  


                     Borer argues that Eyak's confidentiality agreement is overbroad.   The  


agreement states, in relevant part:  


                     1.        I understand and acknowledge that as a director of the  


                     Corporation,   I   will   review  and  consider   a  variety  of  


                     confidential   and   sensitive   information.                          "Confidential  


                     Information" may include any number of different forms, and  


                     includes, but is not limited to business, operation, finance,  


                     strategic, personnel, litigation, executive session, and other  


                    proprietary  information  of  The  Eyak  Corporation  and  its  


                     subsidiaries and affiliates. . . . Confidential Information does  


                    not include information that has been made public by the  


                     Corporation.  I agree that if I am unsure whether information  


                     is confidential, I will treat it as confidential.  


                               . . . .  


                     3.        I will keep all Confidential Information private and  


                     confidential,   and  will  use  my  best  efforts  to  prevent  


                     inadvertent or unauthorized disclosure.  I will not, without  


                    prior       written       consent        of     the     Corporation,            disclose  


                     Confidential  Information  to  anyone.                           I  will  only  use  


                     Confidential Information in furtherance of my duties as a  



Borer claims that the expansive definition of "confidential information" in the agreement  


would  render "literally anything" confidential, so that signing the agreement could  


prevent him from discussing even innocuous matters like "the outlook for the coming  


fiscal year" with shareholders.  He argues that this will prevent him from representing  


and advocating for shareholders on the board.  


                    At the outset we observe that a board of directors has a duty of "complete  


candor to its shareholders to disclose all germane or material information," and this duty  

                                                               -14-                                                          7588

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


"applies to matters of corporate governance as well as to corporate transactions."                                                                                                We  

presume Eyak's board is aware of this general fiduciary duty and that the confidentiality                                                                  

agreement will be construed and applied in light of this duty.                                                           

                             Borer's argument relies on                                 Pederson v. Arctic Slope Regional Corp.                                                    , in   

which we determined that a corporate confidentiality agreement was "unreasonably                                                                           

                                                                                                                                                             35     When the  

broad" as               applied to a shareholder's request for corporate documents.                                                                                                

shareholder  refused  to  sign  a  confidentiality  agreement,  the  corporation  withheld  


requested documents fromtheshareholder.36  Werecognizedaconfidentialityagreement  


may be appropriate if it "reasonably defines the scope of what is confidential information  


subject to the agreement" and has provisions "that are not unreasonably restrictive in  


light of the shareholder's proper purpose and the corporation's legitimate confidentiality  


                       37     Applying  those standards to  the specific documents requested  by  the  


shareholder,  we  concluded  that  the  confidentiality  provisions  were  "unreasonably  


restrictive,  at  least  as  they  related  to  executive  compensation  and  stock  interests"  


especially taking into account the burden these restrictions placed on the shareholder's  


purpose of "making use of disclosed information to organize his fellow shareholders to  


restrict" certain types of transactions by the corporation's executives.38  


              34             3A  FLETCHER  CYC.  CORP.  §  837.70  (2021).  

              35             331  P.3d  384,  403  (Alaska  2014).  Under  Alaska  law,  a  corporation  "shall  

make its  books  and  records  of  account  .  .  .  reasonably  available  for  inspection  .  .  . by a  

shareholder  of  the  corporation."   AS   10.06.430(b).  

              36            Pederson, 331 P.3d at 388-90.  


              37            Id. at 402.  


              38            Id. at 403.  


                                                                                         -15-                                                                                  7588

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

                                                       Pederson   is   distinguishable   because   we   could   determine   in   that   case  

whether the confidentiality provisions were reasonableas applied to specificinformation                                                                                                                                                                                                                                 

 sought for a particular purpose.                                                                                                    We do not have those concrete facts here.                                                                                                                                          Instead we   

have a range of information                                                                                                 that might be deemed                                                                               confidential.     According  to   the  

confidentiality agreement, confidential information "may include" information from                                                                                                                                                                                                                                                                 

various categories such as "business, operation, finance, strategic, personnel, litigation,                                                                                                                                                                                                                                     

executive   session,   and   other   proprietary   information,"   but   the   agreement   does  not  

 suggest that all information within these categories will be deemed confidential.                                                                                                                                                                                                                                                               Each  

category covers a wide range of information, and the justification for treating particular                                                                                                                                                                                                                                      

types of information within each category will vary significantly.                                                                                                                                                                                                                         For example, the   

category   of   "litigation"   information   includes   attorney-client   confidences   as   well   as  

information stated in documents filed in court.  It is unquestionably proper to treat the   

former type of information as confidential, and unquestionably improper to treat the                                                                                                                                                                                                                                                                      

latter as confidential (as court-filed documents have already been publicly disclosed).                                                                                                                                                                                                                                                                                      

Because we are not presented with a situation in which Eyak has deemed specific pieces                                                                                                                                                                                                                                                         

of information confidential, it is difficult to assess the justification for that label, or how                                                                                                                                                                                                                                                       

treating that information as confidential affects a director's exercise of fiduciary duties.                                                                                                                                                                                                                                                                                 

                                                        This difficulty is compounded by the fact that a director's fiduciary duties                                                                                                                                                                                                            

are   themselves   general   maxims:     to   act   in   good   faith,   for   the   best   interests   of   the  

                                                                                                                                  39         Determining a director's adherence to these duties is  

corporation, and with due care.                                                                                                                                                                                                                                                                                                                                  

a  highly  fact-specific  inquiry.40                                                                                                            Accordingly,  whether  having  to  keep  information  


confidential is compatible with a director's fiduciary duties depends not only on what  


                            39                          AS 10.06.450(b).   



                                                        See 3A FLETCHER  CYC. C                                                                                      ORP. § 837.50 (2021) ("Generally, any alleged                                                                                                                        

breach of a fiduciary duty is a question for the trier of fact after examination of all the                                                                                                                                                                                                                                                                


                                                                                                                                                                            -16-                                                                                                                                                                    7588

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


information is at issue, but also the specific factual circumstances that arguably require  


the director to disclose this information.  Trying to decide whether the confidentiality  


agreement is compatible with a director's fiduciary duties when we do not know what  


information has been deemed confidential and why the director believes it should be  


disclosed would substantially elevate the risk of an erroneous decision.  For that reason,  


the  question  whether  Eyak's  confidentiality  agreement  may  in  some  instances  be  


inconsistent  with  a  director's  fiduciary  duties  to  the  corporation  is  not  ripe  for  




                    2.	       Director's   duty   to   acknowledge   that   director   "shall   not  


                               undermine public or shareholder confidence in the board"  


                    Borer challenges a provision in the code of conduct that requires directors  


to acknowledge that the Board acts "as a group and not individuals."   The relevant  


language reads:  


                     [E]ach director shall: . . . acknowledge that the Board acts as  


                    a group and not individuals, and once the Board has acted, a  


                    director may seek change through Board action, but shall not  


                    undermine public or shareholder confidence in the Board or  


                    the Corporation.  


Borer argues that the requirement is unlawfully restrictive because it would prohibit  


directors frompublicly expressing dissent to shareholders, in contravention of directors'  


fiduciary duties.  


                    Without concrete facts, it is difficult to assess the degree of tension between  


the somewhat vague rule that a director may not "undermine public or shareholder  


confidence" in the board or corporation and the scope of a director's fiduciary duties  


when the director disagrees with the action being taken. Under Alaska law a director has  


a fiduciary duty to act in good faith, to act in a manner the director reasonably believes  

                                                               -17-	                                                        7588

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


to be in the best interests of the corporation, and to act with care.                                                                Alaska law also          

recognizes a director's "right to dissent" from corporate action, which may be recorded                                                              

                                                                                                                                                          42  But  

in the minutes of a board meeting or filed in writing immediately after the meeting.                                                                           

there is ample room for a director to register dissent from corporate action without  


undermining confidence in the board.  No facts in the record suggest that this proviso  


would be used to "muzzle [the] minority" as Borer, quoting a Delaware case, asserts.43  


And we can envision circumstances in which enforcing this provision might be justified.  


The Delaware case Borer quotes provides one example:  acting on one's disagreement  


with  a  particular  corporate  action  by  trying  to  persuade  investors  to  abandon  the  


corporation would seem contrary to a directory's duty of loyalty to the corporation.44   In  


these circumstances, the corporation might be justified in finding that the director has  


violated this proviso and sanctioning the director accordingly. We decline to adjudicate  


the lawfulness of this proviso absent its application to concrete facts that can help us  


accurately resolve whether it is inconsistent with a director's fiduciary duties to the  



             41           AS   10.06.450(b).  

             42           AS   10.06.450(e).   

             43           Shocking  Techs., Inc.  v.  Michael,  No.  7164-VCN,  2012  WL  4482838,  at  

*11  (Del.  Ch.  Oct.  1,  2012),  vacated  on  other  grounds,  Shocking  Techs.,  Inc.  v.  Michael,  

No.  7164-VCN,  2015  WL  3455210  (Del.  Ch.  May  29,  2015).   

             44           See id. at *1, *9-11 (holding that director who had disclosed company's  


confidential  information  to  "dissuade  the  only  remaining  potential  investor  from  


investing in the [c]ompany" in order to further the director's personal goals had breached  


duty of loyalty).  


                                                                               -18-                                                                         7588

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

                         3.	         Board's   authority   to   sanction   director   by   withholding travel  



                         A  director  has  a  fiduciary  duty  of  care,                          and  habitual  failure  to  attend  board  


meetings  may violate that duty.                                                                                                      

                                                                Invoking this duty, Borer challenges two provisions  


in Eyak's code of conduct that authorize withholding a director's compensation and  


travel expenses if the director violates the code:  


                         [A]  director   who   is   found   through   the   [disciplinary]  


                         procedure  to  have  violated  the provisions  of this  Code  of  


                         Conduct  shall  be  subject  to  any  or  all  of  the  following  


                         sanctions:   .  .  . cessation  of  eligibility to  receive  all  other  


                         forms of compensation including travel expenses.  


                         . . .  


                         [A]  director  who  fails  to  (1)  comply  with  all  disclosure  


                         requirements . . . , (2) execute an acknowledgment agreeing  


                         to  comply  with  this  Code  of  Conduct,  (3)  execute  the  


                         Corporation's  Confidentiality Agreement,  or  (4)  swear  an  


                         oath of allegiance to the Corporation . . . , shall be ineligible  


                         to receive meeting  fees, and other forms of compensation,  


                         including travel  expenses.   Once the  director's  failure has  


                         been rectified, he or she shall become eligible to receive all  


                         forms  of  compensation  to  which  he  or  she  is  otherwise  


                         entitled as a director.  


Borer argues that withholding travel reimbursement is an unlawful sanction because it  


would cause the sanctioned director to miss board meetings and therefore violate the  


director's fiduciary duty.  

            45           AS 10.06.450(b).   

            46           3A F      LETCHER   CYC. C               ORP. § 1049 (2021) ("Mere failure of a director to                                          

attend a meeting of the board is not necessarily an actionable breach of the director's                                                         

duty of care . . . [but] a director habitually missing meetings may be a basis for breach                                                             

of the duty of care.")         

                                                                             -19-	                                                                      7588

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

                                                  The only fact that Borer has alleged to support this challenge involves a                                                                                                                                                             

former director who told Borer he was "denied travel to board meetings and had to attend                                                                                                                                                                                                                 

telephonically because of a dispute over his compliance with the code of conduct." The                                                                                                                                                                                                                          

fact of telephonic participation itself does not establish that the director's ability to                                                                                                                                                                                                                              

participate in board meetings was meaningfully hindered.                                                                                                                                                                   Although Borer asserts in                                                                   

conclusory   fashion   that   having   to   attend   a   meeting   telephonically   or   virtually   puts  

sanctioned directors at a disadvantage by reducing opportunities for participation, that                                                                                                                                                        

is not an inevitable result of remote participation.                                                                                                                                      And even if remote participation is                                                                                           

somewhat less effective or unwieldy, it does not follow that these minor disadvantages                                                                                                                                                                                     

                                                                                                                                                                                    47        Absent concrete facts that illustrate  

result in a violation of the director's duty of care.                                                                                                                                                                                                                                          

precisely how remote participation in a meeting of the board of directors might impair  


a director's fiduciary duty, we decline to adjudicate the lawfulness of withholding travel  


expenses as a sanction for noncompliance with the corporation's rules for directors.  


                                                 4.	                      Board's  authority  to  sanction  director  by  barring  access  to  


                                                                          corporate information  


                                                 Borer challenges a provision in the code of conduct that permits the board  


to sanction directors by barring them from reviewing any proprietary or confidential  


information.  The relevant provision reads:  


                                                  [A] director who breaches the Confidentiality Agreement . . .  


                                                  (demonstrated by a 2/3 vote of the remaining directors) shall  


                                                 not  be  entitled  to  review  any  proprietary  or  confidential  


                         47                      Borer hypothesizes certain scenarios, like a telephone or internet outage,                                                                                                                                                                         

that would result in a director attempting to participate remotely being unable to attend                                                                                                                                                                                                                

the meeting at all. But the possibility of logistical problems is always present, even if the                                                                                                                                                                                                                       

corporation is paying a director's travel expenses.                                                                                                                                         A director might miss the meeting                                                                    

because bad weather prevents the plane from flying.                                                                                                                                                We do not think a director in this                                                                             

situation has failed to uphold fiduciary duties to the corporation.                                                                                                                              

                                                                                                                                                         -20-	                                                                                                                                               7588

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

                                   information unless and until the Board determines the breach                                                                                

                                   has been rectified.      

Borer argues that this sanction would violate directors' statutorily protected "absolute                                                                                                                 

right" to inspect corporate documents.                                                              48  

                                   Although we have not addressed whether this right is truly "absolute,"49  


Borer himself suggests that it is not.   He argues that access to information may be  


restricted in some circumstances, such as when a director has "clear intent to use the  


documents  to  commit  an  egregious  tort"  against  the  corporation.                                                                                                                   His  position  is  


consistent with case law interpreting California's virtually identical statute.50   California  


                  48               AS10.06.450(d) providesdirectors                                                            with an "absoluteright"to"inspect                                                         and  

copy all books, records, and documents . . . of the corporation."                                                                   

                  49               We have addressed various aspects of the director inspection statute, but  


not this precise question.  See, e.g., Henrichs v. Chugach Alaska Corp., 260 P.3d 1036,  


 1041 (Alaska 2011) (concluding that while directors were permitted to "inspect and  


copy" records there was no attendant right for the corporation to "actively deliver the  


shareholder records to directors or shareholders who request them"); Rude v. Cook Inlet  


Region, Inc., 294 P.3d 76, 93 (Alaska 2012) (rejecting as moot a former director's claim  


of  absolute  entitlement  to  inspect  "information  related  to  the  management  of  the  


corporation" because he was no longer a director).  


                  50               Alaska's director inspection statute is essentially identical to California's,  


which differs from the current Model Business Corporation Act and the statutes of most  


other states.  Compare AS 10.06.450 ("A director has the absolute right at a reasonable  


time to inspect and copy all books, records, and documents . . . of the corporation."), and  


Cal. Corp. Code § 1602 (1975) ("Every director shall have the absolute right at any  


reasonable  time  to  inspect  and  copy  all  books,  records  and  documents  .  .  .  of  the  


corporation of which such person is a director . . . ."), with MODEL   BUS. C                                                                                                                            ORP. A            CT  


 § 16.05 (AM. BAR ASS'N 2016) ("A director of a corporation is entitled to inspect and   


copy the books, records and documents of the corporation at any reasonable time to the                                                                                                                                     

extent reasonably related to the performance of the director's duties as a director . . . ."),                                                                                                                         

and  Del. Code Ann. tit. 8, § 220(d) (2010) ("Any director shall have the right to examine                                                                                                                   

the corporation's stock ledger, a list of its stockholders and its other books and records                                                                                                                     


                                                                                                            -21-                                                                                                     7588

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

courts have construed a director's statutory "absolute" right to inspect corporate records                                                  


to contain certain limitations.                                                                                                      

                                                           California courts have held that "[t]o be entitled to  


inspect corporate records, directors must remain disinterested and independent in the  

                                                                   52   Therefore "[t]he absolute right . . . is subject to  



performance of their fiduciary duties." 

exceptions  and  may  be  denied  where  a  disgruntled  director  announces  his  or  her  


intention to violate his or her fiduciary duties to the corporation, such as using inspection  


rights to learn trade secrets to compete with the corporation."53  


                       We decline to decide in a factual vacuum whether Alaska's similar statute  


contains similar  exceptions and  whether  this proviso  of Eyak's code  of  conduct is  


consistent with any such exceptions.   In ACLU of Alaska  we reasoned that the law  


prohibiting possession of marijuana might be subject to a "narrowing construction" that  


would "uphold[] the statute in cases directly involving the health and safety goals on  


which the statute is based."54                        In answering the question of how the statute should be  


construed, we concluded that "[a]llowing the normal processes of adjudication to take  


                                                   55   The same is true here, when determining whether this  

place may be of assistance."                                                                                                                      


corporate proviso may be lawful requires us to first construe the scope of the statutory  


            50          (...continued)  

for  a  purpose  reasonably  related  to  the  director's  position  as  a  director.").   

            51          9   WITKIN,   SUMMARY   OF   CALIFORNIA   LAW   §   94   (11th   ed.   2021)  (in  

California  a  director's  "absolute  right  to  inspect  does  not  mean  unlimited  access").  

            52          Wolf  v.  CDS  Devco,   110  Cal.  Rptr.  3d  850,  862  (2010).  

            53          Tritek  Telecom,  Inc.  v.  Superior  Ct.,  87  Cal.  Rptr.  3d  455,  459  (2009).  

            54         204  P.3d  364,  373  (Alaska  2009).    

            55         Id .    

                                                                        -22-                                                                   7588

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

right to inspection.               Attempting to define those contours "in the absence of actual facts"                                         


would elevate the risk of erroneous decision.                                       

                        And as was true of the arguments in favor of deciding a preenforcement  


challenge in ACLU of Alaska , Borer's fear that this proviso will be applied to him "may  


be speculative and overstated."57   Borer offers little reason to think that his concern is of  


"sufficient immediacy and reality to warrant the issuance of a declaratory judgment."58  


Borer has submitted the affidavit of Jason Barnes, who served as a director from 2010 - 


2013.   Barnes stated that his efforts to obtain corporate records to "substantiate the  


annually reported financial figures of [Eyak] subsidiaries" was improperly denied by the  


Board's chairman under the guise of a breach-of-confidentiality sanction.   Barnes's  


affidavit, taken as true, indicates that the chairman abused the sanction to hinder Barnes's  


                                                         59   But the assertion of one instance of abuse almost a  

performance of fiduciary duties.                                                                                                                        


decade ago gives little support for us to conclude that there is substantial risk that two- 


thirds  of  the  Eyak  Board  will  vote,  under  false  pretenses,  to  deny  other  directors'  


statutory right to inspect corporate documents.  


                        In sum, Borer's challenges to Eyak's corporate governance documents are  


not ripe for decision.  Absent concrete facts, it is uncertain how they will be applied and  


whether these hypothetical applications would beunlawful. Borer's positionis, in effect,  


            56         Id .; see also Sands ex rel. Sands v. Green                                 , 156 P.3d 1130, 1134 (Alaska            

2007) ("[I]t is not surprising that a concrete case involving a concrete factual scenario  


has uncovered a previously unanswered question.").  



                        204 P.3d at 371.  



                       Id . at 369 (quoting Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d  


357, 359 (Alaska 2001)).  

            59          Barnes's affidavit suggests that he and other board members believed there  


was no "breach" of confidentiality to properly trigger the sanction.  


                                                                         -23-                                                                    7588

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

 that   any   person   elected   to   be   a   director   of   a   corporation   may   obtain   a   declaratory  

judgment that particular corporate governance rules are invalid because they might be  

 abused in specific factual situations that have not occurred yet and may not occur at all.                                                                                                                                                           

 The ripeness doctrine cautions against precisely this approach because deciding cases in                                                                                                                                                                

 a factual vacuum creates risks of erroneous decisions and devotes judicial resources to                                                                                                                                                                 

                                                                                                                   60        We  therefore  decline  Borer's  invitation  to  

 problems   that   may   never   materialize.                                                                                                                                                                                                           

 adjudicate these claims and affirm the superior court's judgment for Eyak.61  


                    B.	                 It   Was   Not   An   Abuse   Of   Discretion   To   Award   Eyak   20%   Of   Its  

                                        Attorney's Fees Under Civil Rule 82.                                                                      

                                        The superior court deemed Eyak the prevailing party and awarded it 20%                                                                                                                                   

 of   its   attorney's   fees,   totaling   $17,780.    Borer   appeals   this   decision.     He does                                                                                                                                              not  

 challenge the superior court's prevailing party designation, but instead challenges the                                                                                                                                                             

 decision to award fees and the amount awarded.                                                                    

                                        A trial court has "broad discretion to award fees and to alter the amount it                                                                                                                                       

                                                      62   When "the prevailing party recovers no money judgment," Alaska  


 intends to award." 

 Civil Rule 82(b)(2) instructs courts to "award the prevailing party in a case resolved  


 without trial 20 percent of its actual attorney's fees which were necessarily incurred."  


                    60	                 Brause, 21 P.3d at 359-60.                                                       

                    61                  Because  we  affirm  the  grant  of  summary  judgment  to  Eyak,  Borer's  


 preliminary injunction argument - that the superior court erred in denying his request  


 to require Eyak to seat him as a director - is moot.  See Roach v. First Nat'l. Bank of  


Anchorage , 643 P.2d690,690-91 (Alaska1982) (agreeing preliminaryinjunctionshould  


 be dissolved after underlying claims dismissed).  


                    62                  Boiko v. Kapolchok, 426 P.3d 868, 876 (Alaska 2018) (quoting Cizek v.  


 Concerned Citizens of Eagle River Valley, Inc., 71 P.3d 845, 851 (Alaska 2003)).  


                                                                                                                          -24-	                                                                                                                 7588

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


Any award made pursuant to Rule 82 is "presumptively correct"                                                                          but "may be set aside            


for 'compelling reasons.' "                                  

                           None of the reasons Borer offers for why the court should have reduced or  


eliminated  the  fee  award  is  compelling.                                               First,  Borer  claims  that  Eyak's  attorney  


"expressly threatened Borer regarding the fee award prior to this litigation." But the only  


evidence in the record of a "threat" is the attorney's letter notifying Borer that Eyak  


would not seat him as director.  The letter alludes to the possibility of an adverse fee  


award, stating that Eyak was "confident that a court will not view Mr. Borer as a 'public  


interest litigant.' "  This statement was not improper:  advising the opposing party of a  


financial cost of litigation, without more, is not some improper tactic warranting a  


reduction in attorney's fees.65  


                            Second, Borer appears to invoke Alaska Civil Rule 82(b)(3)'s subsection  


(I), which allows trial courts to consider "the extent to which a given fee award may be  


so onerous to the non-prevailing party that it would deter similarly situated litigants from  


                                                                   66     Borer challenges the fee award because "[Alaska]  

the voluntary use of the courts."                                                                                                                             


Natives are an economically disadvantaged group and a large fee award would seriously  


              63           Dickson v. State, Dep't of Nat. Res.                                      , 433 P.3d 1075, 1089 (Alaska 2018)                              

("[A]wards of attorney's fees made pursuant to the schedule set out in Rule 82 are                                                                                          

presumptively correct, and the superior court need not make any findings in support of                                                                                        

the award." (alteration in original) (quoting                                             Greene v. Tinker                    , 332 P.3d 21, 41 (Alaska            


              64           Id. (quoting Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010)).  


              65           See Alaska R. Prof. Conduct 4.1(a) (prohibiting only "false statement[s] of  


material fact or law to a third person").  


              66           Alaska R. Civ. P. 82(b)(3)(I).  


                                                                                     -25-                                                                               7588

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


discourage    similarly    situated    litigants"                                                                                          and    because    "[f]ew,    if    any    individual  

shareholders have the means or will to challenge the board."                                                                                                                                  We are not persuaded that                                               

the 20% fee award here, totaling $17,780, was "so onerous" that it would deter similarly                                                                                                                                                             

situated litigants from bringing meritorious claims against a corporation.                                                                                                                  

                                          Third, Borer invokes subsection (H), which allows trial courts to consider                                                                                                                                   

"the relationship between the amount of work performed and the significance of the                                                                                                                                                                                     

                                                            68            Borer  essentially  claims  that  Eyak's  litigation  costs  were  

matters   at   stake."                                                                                                                                                                                                                    

disproportionately high given the low stakes for Eyak in this case, indicating that Eyak  


prolonged  litigation  because  of  "motivation  beyond  the  case  at  hand."                                                                                                                                                                  But  Borer  


downplays what was at stake for Eyak in this case.  Had Borer prevailed, Eyak's ability  


to protect its interests through the confidentiality agreement and code of conduct for  


directors might have been impaired, making its confidences vulnerable.  Given those  


stakes, we are not persuaded that Eyak inappropriately prolonged litigation to increase  


attorney's fees.  


                                          Fourth,Borer appearstoinvokefinancialhardshipas an "equitablefactor[]"  


under subsection (K).69                                                        Borer's only assertion about his financial hardship is that he  


"lack[ed] [the] funds" to hire counsel for his appeal.   Borer has not shown that this  


hardship was so compelling that the superior court abused its discretion in granting Rule  


                     67                   Eyak argues that this argument is waived because "Borer did not raise [this]                                                                                                                                           

argument at the superior court, nor present any supporting evidence that the Rule 82                                                                                                                                                                                     

award was 'so onerous' that it would discourage other plaintiffs from raising claims                                                                                                                                                                        

against Alaska Native Corporations."                                                                                    This waiver argument is plainly contradicted by                                                                                                  

the record, because Borer discusses this precise issue in his opposition to Eyak's motion                                                                                                                                                                  

for attorney's fees.                         

                     68                   Alaska R. Civ. P. 82(b)(3)(H).  


                     69                   Alaska R. Civ. P. 82(b)(3)(K).  


                                                                                                                                  -26-                                                                                                                            7588

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


82's default award.                                    Borer could afford to and did hire counsel in the proceedings                                                                  

below.   As the party filing the lawsuit, Borer should have been aware of the burdens of                                                                                                                        

litigation and its attendant expenses.                                                     And Borer's extensive motion practice increased                                                    

the amount of time spent on this case by both parties.                                                                                        We decline to find that the                        

superior court abused its discretion based on Borer's financial hardship.                                                                                                          

                                                                                                                                        71  and argues that fees should be  

                                 Fifth, Borer again appears to invoke equity                                                                                                                                   

reduced because he "gains no personal benefit regardless of the outcome."  But this is  


incorrect.  Had he prevailed, Borer would have personally benefitted:  he would have  


gained a seat on the board along with the attendant powers and compensation of a  


director, unburdened by the Agreements to which he objects.  


                                 Sixth, Borer argues that he should be "indemnified against legal fees"  


because  had  he  won,  he  "would  clearly  be  entitled  to  indemnification"  under  


AS 10.06.490(c), which we have noted requires that "a corporation must indemnify a  


director who 'has been successful on the merits or otherwise' in defense of certain  


                        72     But Borer was not "successful on the merits or otherwise" in his lawsuit;  


besides, he never raised this argument before the superior court, so it is waived.73  


                70               See   Israel   v.   Dep't   of   Corr.,   460   P.3d   777,   779,   786   (Alaska   2020)  

(declining to find trial court abused its discretion awarding attorney's fees to Department                                                                                             

of Corrections when pro se litigant was incarcerated and had financial hardship).                                                                                             

                71               See Alaska R. Civ. P. 82(b)(3)(K) (allowing variation of attorney's fee  


award upon consideration of "equitable factors").  


                72               Holmes v. Wolf, 243 P.3d 584, 590 (Alaska 2010) (emphasis omitted)  


(quoting AS 10.06.490(c), which mandates indemnity for directors).  


                73               McMullen v. Bell, 128 P.3d 186, 190 (Alaska 2006) ("[T]his court will not  


consider an issue raised for the first time on appeal.' " (quoting State v. Nw. Constr., Inc.,  


741 P.2d 235, 239 (Alaska 1987))).  


                                                                                                     -27-                                                                                               7588

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

                   BecauseBorer has not presented acompellingreasontoreversethesuperior  


court's grant of attorney's fees, we uphold the award.  



                  We AFFIRM the superior court's judgment and award of attorney's fees  


for Eyak.  


                                                         -28-                                                    7588

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