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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Monzingo v. Alaska Air Group (05/06/2005) sp-5894

Monzingo v. Alaska Air Group (05/06/2005) sp-5894

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


TONY ED MONZINGO,             )
individually and on behalf of all       )    Supreme Court No. S-
others similarly situated,              )
                              )    Superior Court No.
             Appellant,            )    3AN-02-04670 CI
     v.                       )    O P I N I O N
ALASKA AIR GROUP, INC., a          )    [No. 5894 - May 6, 2005]
Delaware Corporation, d/b/a        )
Alaska Airlines and Horizon Air         )
Industries, Inc., and ALASKA       )
AIRLINES, INC., an Alaska          )
Corporation,                                      )
             Appellees.            )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:  Dan K. Coffey, Law  Offices  of
          Dan  K. Coffey, Anchorage, Gilbert W. Gordon,
          Marks,   Marks,  &  Kaplan,  Ltd.,   Chicago,
          Illinois, and Michael B. Hyman, Much  Shelist
          Freed  Denenberg  Ament &  Rubenstein,  P.C.,
          Chicago, Illinois, for Appellants.  Robert C.
          Bundy  and  Jahna  M.  Lindemuth,  Dorsey   &
          Whitney LLP, for Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Fabe,  and  Carpeneti, Justices.   [Eastaugh,
          Justice, not participating.]

          FABE, Justice.

          A  frequent  flyer  customer  brought  a  class  action

lawsuit  against Alaska Airlines seeking damages for  changes  to

Alaska  Airliness frequent flyer program that affected the  value

of  his  previously  earned miles.  The  superior  court  granted

summary  judgment in favor of Alaska Airlines and awarded  twenty

percent of actual attorneys fees to the airline.   We affirm  the

decision of the superior court and hold that:  (1) this breach of

contract claim is not preempted by the Airline Deregulation  Act;

(2)  the  plain  language  of  the Mileage  Plan  and  reasonable

expectations of the parties indicate the intent to allow  changes

to  all  aspects of the plan with reasonable notice; and (3)  the

parties  course  of dealing supports the understanding  that  the

airline  has the ability to make changes it deems necessary.   We

reverse  the  superior  courts award of  attorneys  fees  against

Monzingo related to the litigation of class certification issues.


     A.   Factual History

          This  case  arises  from an uncertified  class  action,

filed  by  Tony  Ed  Monzingo, on behalf of   3.9  million  class

members, seeking over $1 billion in damages.  The relevant  facts

of  the  case  are  undisputed.  Monzingo is a member  of  Alaska

Airliness  frequent  flyer program, the Alaska  Airlines  Mileage

Plan  (Mileage Plan).  The program permits passengers  flying  on

Alaska  Airlines to accumulate mileage credit that can  later  be

redeemed  for free travel or other awards.  Monzingo has  been  a

member  of the Mileage Plan since April 23, 1992.  From his  date

of  entry  into the program on April 23, 1992 until  April  2002,

Monzingo had accumulated a total of 542,484 miles, most of  which

had not been redeemed for free travel or other benefits.

          Alaska Airlines implemented a number of changes to  the

Mileage  Plan on September 1, 2001.  These changes increased  the

number  of miles necessary to redeem peak, first class, and  some

international  travel awards; redemption of awards  for  off-peak

coach travel remained unchanged.  Alaska Airlines maintains  that

this  adjustment affected only 16.4% of air travel award  levels,

accounting  for  only 21% of all awards redeemed  in  2000.   The

Mileage  Plans  changes applied prospectively,  to  miles  to  be

accrued in the future, as well as retroactively, to miles already

accrued  but  not  yet redeemed.  Mileage Plan  members  received

their  first notice that a change would take place on  March  30,

2001.  Alaska Airlines issued a press release, posted information

about the changes on their website, and sent members notification

by  e-mail in April 2001.  Members were also sent a newsletter in

late  May  2001 announcing that the changes would go into  effect

beginning  September  1,  2001.  In these  various  publications,

Alaska  Airlines  alerted members that they  could  redeem  their

accumulated miles under the old award structure as long  as  they

booked  their  airline ticket in the subsequent five  months,  by

September 1, 2001, for travel prior to August 1, 2002.

          It  is undisputed that the Terms and Conditions of  the

Mileage  Plan specifically reserved the right to make prospective

changes to the plan.  The parties disagreement centers instead on

whether  Alaska  Airlines reserved the right to make  retroactive

changes  to  the plan.  The Terms and Conditions of  the  Mileage

Plan,  dated January 1991, were sent to every new member  of  the

frequent flyer program, including Monzingo, who received them  in

1992  when  he  became  a  member of the  plan.   The  Terms  and

Conditions contained the following warnings:

          Alaska  Airlines reserves the right to change
          the Mileage Plan terms, conditions, partners,
          mileage  credits and/or award  levels.   This
          means  with prior notice Alaska Airlines  may
          raise  award levels or lower mileage  levels,
          add an unlimited number of blackout dates  or
          limit the number of seats available on any or
          all  flights.  Also, certain destinations may
          be   restricted  to  members.    Furthermore,
          Alaska   Airlines  reserves  the   right   to
          terminate  the  Mileage  Plan  with   advance
          notice.  (Emphasis added.)
          . . . .

          Subject  to additions, deletions or revisions
          at anytime.
          . . . .

          Accrued mileage and award certificates do not
          constitute property of the member.
          . . . .

          Alaska  Airlines and/or Travel  Partners  are
          the  final  authority on qualifying mileages.
          Alaska Airlines may, at its discretion, elect
          to   authorize   additional  mileage   credit
          between any two points on its route system.
At  the  end  of  a section of its Terms and Conditions  entitled

Important  Reminders,  Alaska  Airlines  includes  an  additional

warning printed in bold type:

          All  terms  and  conditions on  Mileage  Plan
          awards are subject to change, and the Mileage
          Plan  program  is subject to cancellation  at
          any time by Alaska Airlines.
Although there is no plan language that specifically reserves  to

Alaska  Airlines  the  right  to devalue  previously  accumulated

miles, the Mileage Plan does include a term concerning previously

accumulated mileage.  This provision states:

          Alaska   Airlines  reserves  the   right   to
          disqualify persons from further participation
          in   the  Mileage  Plan  and  to  cancel  all
          previously accumulated mileage if  in  Alaska
          Airlines[s] sole judgement such persons  have
          violated  any  of  the  eligibility,  mileage
          accumulation,  award  usage  or  other  terms
          governing the Alaska Airlines Mileage Plan.
     B.   Procedural History

          On  February  11,  2002, Monzingo  filed  this  lawsuit

alleging breach of contract and breach of the implied covenant of

good  faith and fair dealing.  He sought certification of a class

of  persons  who had accumulated miles through the  Mileage  Plan

prior  to  September  1,  2001.  Monzingo amended  his  complaint

twice:  on  April  4, 2002, his first amended complaint  included

additional  claims for unconscionability and conversion,  and  on

November  12,  2002,  his second amended  complaint  limited  the

action to only one claim for breach of contract.1

          Alaska  Airlines moved for summary judgment on  October

15,  2002. Superior Court Judge Sen K. Tan granted the motion and

entered judgment for the airline on September 2, 2003.  Following

          the superior courts order, Alaska Airlines brought a motion for

attorneys  fees, which was granted on December 17, 2003.   Alaska

Airlines was awarded $36,877.15; this amount includes $28,226.40,

twenty percent of actual attorneys fees, and costs of $8,650.75.

          A  motion for class certification was filed by Monzingo

but  was  rendered moot by the superior courts grant  of  summary

judgment.  The superior courts attorneys fees award included fees

for  time  spent on class certification issues.  Alaska  Airlines

states  that  a substantial percentage, if not the  majority,  of

time  spent  by Alaska Airliness attorneys . . . was  devoted  to

class  certification  issues.  Monzingo appeals  both  the  order

granting summary judgment and the Alaska Civil Rule 82 fee award.


          [A]  grant  of  summary judgment  based  upon  contract

interpretation   is   subject   to   de   novo   review   because

interpretation  of  contract language  is  a  question  of  law.2

Drawing  all  reasonable  inferences in favor  of  the  nonmoving

party,  we  will uphold summary judgment if no genuine  issue  of

material fact exists and the moving party is entitled to judgment

as  a matter of law.3  The intent of the parties when entering  a

contract  is,  however,  reviewed  under  the  clearly  erroneous

standard.4   [S]ummary  judgment is improper  when  the  evidence

before the superior court establishes a factual dispute as to the

intent of the contracting parties.5

          Trial  courts  have broad latitude in  their  award  of

attorneys fees and costs.6  We review such awards under the abuse

of  discretion  standard.7   Abuse of discretion  exists  if  the

award  is arbitrary, capricious, manifestly unreasonable, or  the

result of an improper motive.8


     A.   Alaska  Airlines  Did  Not  Breach  Its  Contract  with
          Monzingo  Because It Reserved the Right To  Change  the
          Mileage Plan Retroactively.
          1.   The  breach of contract claim is not preempted  by
               the Airline Deregulation Act.
          We  consider  first the threshold question whether  all

issues in this case are preempted by the Airline Deregulation Act

(ADA).9  The ADA provides that a state may not enact or enforce a

law,  regulation, or other provision having the force and  effect

of law related to a price, route, or service of an air carrier.10

The  United States Supreme Court has addressed whether state  law

claims  are  preempted  by the ADA on two  occasions:  first,  in

Morales v. Trans World Airlines, Inc., where the Court held  that

[s]tate enforcement actions having a connection with or reference

to  airline  rates, routes, or services are preempted  under  the

ADA,11 and three years later in American Airlines, Inc. v. Wolens.12

Wolens  was  similar  to this case in that  it  involved  a  suit

against  American  Airlines for retroactive modification  of  its

frequent flyer program.  The Wolens Court held that the  ADA  did

preempt  the  plaintiffs claims that were based on  the  Illinois

Consumer Fraud and Deceptive Business Practices Act but  did  not

preempt a state law breach of contract claim.13  The Wolens Court

explained that it did not read the ADAs preemption clause .  .  .

to  shelter airlines from suits . . . seeking recovery solely for

the   airlines   alleged   breach  of   its   own,   self-imposed

undertakings.14  Although Wolens was almost identical on its facts

to  the  instant  case,  the Wolens Court  did  not  address  the

contract  claim  on  the  merits, noting  that  the  question  of

contract  interpretation has not yet had a full  airing,  and  we

intimate no view on its resolution.15

          Alaska  Airlines contends that state law principles  of

contract  interpretation  should not  be  applied  in  this  case

because they would enlarge or enhance [Monzingos] rights  .  .  .

based  on  state laws or policies external to the  agreement,  as

expressly  prohibited  by  Wolens.   While  Wolens  does   forbid

enlargement  or  enhancement of rights based  on  state  laws  or

policies,  this  prohibition does not  extend  to  such  contract

construction issues as whether an airline has reserved the  right

to retroactively change rules governing frequent flyer credits.16

          The Wolens Court concluded only that state-law principles should

be  preempted  to the extent they seek to effectuate  the  States

public  policies,  rather  than  the  intent  of  the  parties.17

Subsequent decisions have interpreted this language to mean  that

contract actions seeking invalidation of express contract terms,18

enforcement  of equitable remedies,19 or punitive  damages20  are

preempted, because they would impermissibly enlarge[]  the  scope

of  the proceedings beyond the parties agreement.21   But if  the

parties  seek to enforce a term implied in fact in the  agreement

based  upon  the parties reasonable expectations,  no  preemption

problem is presented.22

          Here,  the  superior court was asked to  interpret  the

meaning of the words of the Mileage Plan in order to give  effect

to  the  reasonable expectations of the parties.  Rules governing

contract interpretation  such as the use of extrinsic evidence to

ascertain the meaning of the parties  only attempt to divine  the

parties  intent  and are permissibly applied in  resolving  state

contract claims.  Thus, we examine this contract to determine  if

there was a breach of Alaska Airliness self-imposed undertakings.23

          2.   The mileage plan as a whole reflects the intent to
               allow  Alaska Airlines the ability to  change  the
               plan retroactively.
          When  interpreting contracts, the trial courts goal  is

to  give  effect to the reasonable expectations of the parties.24

Courts  look  to  the language of the contract as  a  whole,  the

objects   sought  to  be  accomplished  by  the   contract,   the

circumstances surrounding its adoption, and case law interpreting

its  provisions to ascertain the reasonable expectations  of  the

parties.25   While extrinsic evidence should be consulted,  after

the transaction has been shown in all its length and breadth, the

words  of  an  integrated  agreement remain  the  most  important

evidence of intention.26  The parties to this dispute agree  that

the  Mileage  Plan is a contract.27  We must therefore  begin  by

examining  the  plain language of the Mileage Plan  to  determine

whether  the  terms  and conditions of the  plan  reserve  Alaska

          Airliness right to make retroactive changes.  Next, we analyze

the  reasonable  expectations of the parties  at  the  time  that

Monzingo  agreed  to the terms of the Mileage Plan.   We  finally

turn  to  the  parties course of dealing as further  evidence  of

their reasonable expectations of the Mileage Plan.

               a.   The   plain  language  of  the  Mileage  Plan
                    reserves  Alaska  Airliness  right  to   make
                    retroactive changes to the plan.
          Courts  examine the contract as a whole when  assessing

the  intent of the parties.28  In this case, we must examine  the

nature  of restrictions that Alaska Airlines informed its members

would  apply to the Mileage Plan.  The inside front cover of  the

Terms and Conditions brochure that is mailed to every new Mileage

Plan member contains the following language to warn members about

possible changes to the plan: Alaska Airlines reserves the  right

to  change the Mileage Plan terms, conditions, partners,  mileage

credits  and/or award levels.  Additional warnings run throughout

the  Terms  and Conditions, including: Alaska Airlines may  raise

award levels or lower mileage levels, and [s]ubject to additions,

deletions,  or revisions at any time.  Bold text in the  brochure

reiterates that [a]ll terms and conditions on Mileage Plan awards

are subject to change . . . .

          Monzingo contends that these terms give Alaska Airlines

the  right to change award levels, as long as the changes do  not

apply  to  previously accumulated miles.  But, as Alaska Airlines

points  out,  it  has also informed Mileage Plan members  in  its

Terms   and   Conditions  that  [a]ccrued   mileage   and   award

certificates do not constitute property of the member,  and  that

Alaska Airlines reserves the right to terminate the Mileage  Plan

with  advance notice.  We conclude that these provisions manifest

an  intent to clarify that members have no ownership right in the

miles  they have earned and thus cannot expect that the value  of

these miles will not diminish due to changes in the award levels.

Because  these  provisions informed members  that  they  have  no

vested  right in their previously accumulated mileage, when  read

          in conjunction with the other provisions of the plan, these terms

appear to be an additional way of saying that Alaska Airlines has

the power to alter or change the value of miles.29

               b.   The  parties reasonably expected the  Mileage
                    Plan  to  allow Alaska Airlines the right  to
                    retroactively change all aspects of the plan.
          In   interpreting  contracts,  we  also  look  at   the

reasonable expectations of the parties.  We aim to give effect to

the  meaning of the words which the party . . . should reasonably

have apprehended . . . would be understood by the other party.30

          In support of his argument that Alaska Airlines did not

reserve the right to retroactively devalue previously accumulated

miles, Monzingo relies principally on the Illinois Supreme Courts

decision in Wolens.31  There, the court remarked:  American chose

to  retroactively alter the terms of the frequent flyer  program.

This  action  constituted  a breach of  contract  which  entitled

plaintiffs  to  pursue  an  available remedy.32   But  as  Alaska

Airlines  points out, this language is dicta.33  And  the  United

States  Supreme Court did not reach this issue when  it  reviewed

that decision.34

          Alaska  Airlines relies on Benway v. American Airlines,

Inc.35 and Grossman v. USAir, Inc.36 to support its argument that

it  reserved  the right to make both prospective and  retroactive

changes  to  the  Mileage Plan.  In Benway, a Texas  trial  court

judge  granted  American Airliness motion  for  summary  judgment

based on the reservation of rights language in Americans frequent

flyer program.  Contract interpretation was the only issue raised

on  summary  judgment.   American  Airliness  AAdvantage  Program


          American  Airlines may find it  necessary  to
          change AAdvantage program rules, regulations,
          travel awards and special offers at any time.
          This means that American may initiate changes
          impacting,     for    example,    participant
          affiliations,   rules  for  earning   mileage
          credit, mileage levels and rules for the  use
          of travel awards . . . .
Monzingo  complains  that  American  Airliness  terms  are   more

explicit than Alaska Airliness.  We disagree.  The reservation of

rights language in American Airliness program is less clear  than

Alaska  Airliness.   Alaska  Airlines uses  unequivocal  language

stating it reserves the right to change the Mileage Plan,  rather

than American Airliness language: may find it necessary to change

AAdvantage program rules.

          In  Grossman,  a  Pennsylvania trial  court  granted  a

motion  for summary judgment in favor of USAir, finding that  the

terms  of  the  contract unambiguously permitted USAir  to  raise

mileage  levels in a manner that reduced the value of  previously

accrued miles.37  USAirs reservation of rights language was almost

identical  to  the  language used by Alaska  Airlines,  informing

program members:

          USAir  reserves  the  right  to  change   the
          Frequent Traveler Program rules, regulations,
          partners,  mileage credits, or award  levels.
          This means that, with notice, USAir may raise
          award  or  mileage levels, add  an  unlimited
          number  of blackout days, or limit the number
          of seats available to any or all destinations
          . . . .
          The  Grossman  court found it significant  that  USAirs

contract  language followed the National Association of Attorneys

General  (NAAG)  Guidelines.38  NAAG,  an  organization  that  is

composed  of  the attorneys general of all fifty states,  adopted

Air  Travel  Industry Enforcement Guidelines  in  1987.39   These

guidelines were drafted following the deregulation of the airline

industry  and  were  designed to explain in detail  how  existing

state  laws  apply  to air fare advertising  and  frequent  flyer

programs.40  The guidelines provided detailed standards governing

the  content and format of airline advertising and addressing the

recommended structure and advertising of frequent flyer programs.

The reservation of rights language in USAirs and Alaska Airliness

frequent  flyer programs is modeled on the language of  the  NAAG

Guidelines.41  Although the Grossman court noted this similarity,

its decision was also based on state law interpretation of USAirs

contract  language.   The  Grossman  court  concluded  that  this

          language was susceptible to only one reasonable interpretation:

that  USAir could devalue accumulated miles by increasing  levels

needed to obtain free travel.42

          Relying  on  Morales,  Monzingo argues  that  the  NAAG

Guidelines are preempted by the ADA.  But in concluding that  the

fare advertising provisions of the NAAG Guidelines are pre-empted

by   the  ADA,43  the  Morales  Court  was  careful  to  narrowly

circumscribe   the  preempted  portion  to  include   only   fare

advertising  provisions of the NAAG Guidelines  not the  language

addressing  frequent flyer programs.44  More importantly,  Alaska

Airlines does not argue that the NAAG Guidelines are enforceable,

and  indeed, the task force did not appear to intend them  to  be

enforceable.45   Alaska Airlines maintains that its  adoption  of

language  nearly  identical to that suggested by  the  guidelines

provided  members  with additional notice  that  modification  of

award   levels  could  affect  previously  accumulated   miles.46

Although  we  are reluctant to conclude that the NAAG  Guidelines

provided  any  notice  to members, we agree that  the  guidelines

offer  some indication that it was reasonable for Alaska Airlines

to  expect  that  they were reserving the right to  retroactively

devalue previously accumulated miles.

          When read as a whole, the contract does not envision  a

plan  in which members redeem awards based on the award structure

in  place at the time that particular miles were accrued  by  the

customer.   As Alaska Airlines argues, it would not be reasonable

for  a  customer  to  expect  this because  it  would  create  an

administrative  nightmare for the airline  and  the  customer  to

track  the value of miles relative to the status of the  plan  at

the time of a particular flight.  And there are no provisions  in

the detailed language of the plans terms that would lead a member

to  believe that Alaska Airlines or the member would be  required

to  track award amounts with each modification.  Read as a whole,

the  Mileage Plan is structured to give Alaska Airlines the power

to  make changes with adequate prior notice.  Here, Monzingo  was

          given notice of the changes in late March 2001.  He had sixteen

months  following  the  date of this announcement  to  travel  on

previously  accrued miles, and five months after the announcement

to  book  this  travel.47  Moreover, the NAAG Guidelines  provide

evidence  that it was reasonable for Alaska Airlines  to  believe

the contract language was specific enough to convey the intent to

reserve the right to make retroactive changes.  We conclude  that

the  contract  was  sufficiently  unambiguous  on  the  issue  of

previously accumulated miles to warrant summary judgment.

               c.   The  course  of dealing between  the  parties
                    indicates  Monzingo  understood  that  Alaska
                    Airlines  reserved the right to make  changes
                    to accumulated miles.
          We  next turn to the course of dealing between Monzingo

and  Alaska  Airlines and consider whether the  parties  previous

dealings   supply   additional  evidence  of   their   reasonable

expectations  of the Mileage Plan.  Alaska Airlines  argues  that

the  frequent unilateral changes made by Alaska Airlines  to  the

plan during Monzingos membership indicate Monzingo understood the

plan   was  subject  to  retroactive  changes.   Alaska  Airlines

maintains  that  award levels were increased twelve  times  since

Monzingo  joined  the  plan,  and  thirteen  travel  awards  were

discontinued  during his membership.  At no point prior  to  this

lawsuit did Monzingo call to complain about the changes, although

he was admittedly aware of them.

          Alaska Statute 45.01.205 provides that express terms of

an  agreement  and an applicable course of dealing  or  usage  of

trade shall be construed where reasonable as consistent with each

other  .  . . .48  A course of dealing is a sequence of  previous

conduct between the parties to a particular transaction which  is

fairly  to  be  regarded  as  establishing  a  common  basis   of

understanding  for  interpreting  their  expressions  and   other

conduct.49   We  held in Fairbanks North Star Borough  v.  Tundra

Tours,  Inc.  that a school districts payment  to  a  school  bus

company  over  two  years manifested an  assent  to  the  billing

          methodology of the bus company and that the parties course of

dealing   should  govern  the  interpretation  of   the   billing

methodology.50   As  we explained, a course  of  dealing  between

parties must prevail over an industry practice in determining the

reasonable   intention  of  the  parties  in   using   particular

terminology.51  In this case, we similarly conclude that Monzingo

assented  to  the numerous changes made by Alaska Airlines.   His

actions  provide  an  additional  indication  of  his  reasonable

expectations  at  the  time of drafting:   that  Alaska  Airlines

reserved  the  right to make changes to the value  of  previously

accumulated miles.  Based on the plain language of the plan,  the

reasonable expectations of the parties, and the parties course of

dealing, we hold that Alaska Airlines reserved the right to  make

retroactive changes to the Mileage Plan with reasonable notice.

     B.   It  Was  Error To Award Attorneys Fees Against Monzingo
          for Litigation of Class Certification Issues.
          Monzingo contends that the award of attorneys  fees  in

this case is contrary to the purpose of Alaska Civil Rule 82  and

public  policy.   At  no  point does Monzingo  contend  that  the

superior  courts  award of fees was an abuse of  discretion  that

warrants  reversal.  Rather, he argues that we  should  create  a

separate  category  under Rule 82 for private litigants  pursuing

quasi-public issues.  Both parties agree that Monzingo is  not  a

true  public  interest litigant, and hence is  not  automatically

exempt  from Rule 82 fees.52  The lawsuit was for over $1 billion

in damages and Monzingo had sufficient private economic incentive

to  bring  the suit.  Instead, Monzingo asserts that  because  so

many Alaska citizens are affected by the contested issue, and the

damages  are  very  small as to each individual,  attorneys  fees

should  not be assessed when the claim is not frivolous  and  the

class representative acts in good faith.  We are unconvinced that

class  representatives  motivated to  bring  suit  by  their  own

private  economic  interests should fall completely  outside  the

ambit  of  Rule  82.   We  are, however, persuaded  by  Monzingos

argument  that  a  future class representative  seeking  a  small

          amount of relief will be dissuaded from becoming a named

plaintiff in a class action suit if he risks high attorneys  fees

for  litigation that goes beyond that required to adjudicate  the

merits  of his own case.  Thus, the question before us is whether

a  class  representative should be liable for Rule  82  attorneys

fees  arising from litigation on issues related solely  to  class

certification and notice, when that litigation is for the benefit

of  putative class members and offers no monetary benefit to  the

named plaintiff.

          Alaska  is  the  only state that does  not  follow  the

American  rule  [pertaining  to  attorneys  fees].53   Under  the

American rule, each party pays its attorneys fees, regardless  of

who prevails.54  The purpose of Rule 82 is to partially compensate

a prevailing party for the expenses incurred in winning his case.

It  is not intended as a vehicle for accomplishing anything other

than providing compensation where it is justified.55  Rule 82 was

not  intended  to  penalize a party for litigating  a  good-faith


          Rule  82(b)(3)(I)  permits a court to  reduce  or  deny

attorneys fees to a prevailing party if a given fee award may  be

so  onerous  to  the  non-prevailing party that  it  would  deter

similarly  situated  litigants from  the  voluntary  use  of  the

courts.57  We have previously expressed concern that  financially

ruinous fee awards against good faith civil litigants could deter

access to the courts.58  Although we recognize that a trial court

does  not  need to explain its analysis of all possible  reasons,

under  Rule 82(b)(3), for deviating from the schedule,59 it  must

give  adequate  consideration of the factors when raised  by  the

parties.   Moreover, class representatives are a unique group  of

plaintiffs.    Named plaintiffs in class actions are particularly

susceptible to financially ruinous or onerous fee awards  in  the

event  of  an adverse judgment, especially following  our  recent

holding  in Turner v. Alaska Communications Systems60   that  the

costs  of  litigating should not be born by absent class members.

          Hence, fee awards against named class representatives warrant

greater  scrutiny  and  a  delicate  balancing  of  the  relevant

equitable factors articulated in Rule 82(b)(3).61

          We  did  not address in Turner the extent and sweep  of

Rule 82s application to class representatives.  We therefore turn

to  the  narrow  issue  raised  in this  case:  whether  a  named

plaintiff  can  be  held  liable for  attorneys  fees  and  costs

incurred  that  have  no  bearing on  the  merits  of  the  named

plaintiffs lawsuit.  This appears to be a novel issue that arises

out  of Alaskas unique two-way fee-shifting provision, Rule 82.62

The question posed is whether the policies behind Rule 82 support

imposing  attorneys  fees on a named plaintiff  when  those  fees

include  extensive  class certification  preparation  that  falls

outside the substantive merits of the named plaintiffs case.63

          The  United States Supreme Court recognized  in  United

States  Parole  Commission v. Geraghty  that  a  named  plaintiff

presents two separate issues for judicial resolution.  One is the

claim  on  the merits; the other is the claim that he is entitled

to  represent  a  class.64  A class representatives  interest  in

having  a  class  certified  is more  analogous  to  the  private

attorney   general   concept  than  to  the  type   of   interest

traditionally thought to satisfy the personal stake requirement.65

The  United  States  Supreme Court further explained  in  Deposit

Guaranty  National  Bank  v.  Roper  that  the  denial  of  class

certification [is] an example of a procedural ruling,  collateral

to  the  merits of a litigation . . . .66  The Supreme  Court  in

Roper  found that the use of the class action procedure may offer

a  substantial  advantage for a named plaintiff  who  may  divide

attorneys  fees  and costs among all members  of  the  class  who

benefit  from  any recovery and therefore achieve  a  less-costly

means  of  litigating their single claim.67  But this significant

benefit to claimants . . . of reducing their costs of litigation68

quickly  transforms  into  an  economic  hardship  to  the  named

plaintiff if class representatives are held liable for all of the

          fees incurred in litigating class certification issues.  As the

Supreme Court stated in Roper, [t]ypically, the attorneys fees of

a  named  plaintiff proceeding without reliance on  [the  federal

class  action  rule]  could exceed the value  of  the  individual

judgment in favor of any one plaintiff.69  In this case, Monzingo

is  asked  to  pay $28,226.40 in attorneys fees and $8,650.75  in

costs.   Yet  Monzingo  argues that [h]is total  damages  had  he

prevailed ranged from a few hundred to a few thousand dollars.

          Class  representatives  will frequently  have  less  at

stake than Monzingo, largely because negative value suits70 are a

primary reason the class device exists.71  Moreover, class action

defendants  are highly motivated to vigorously defend  any  class

action.   Not  only are the monetary stakes high  in  most  class

actions,  but defeat of a class action may preclude later  claims

by  absent  members of the putative class and can often foreclose

devastating public relations and reputation costs for a company.72

Alaska  Airlines  admitted  as much  when  arguing  for  enhanced

attorneys  fees:   Faced with a billion dollar damages  claim,  a

simultaneous  motion to certify a 3.8 million member  class,  and

expert  counsel brought in from the Outside, Alaska Airlines  was

forced  to respond in a proportionate manner . . . [and] expended

a reasonable number of hours and resources given the magnitude of

Plaintiffs claim.

          Rule  82(b)(3)(J) permits variance from  the  attorneys

fees  schedule in situations where the prevailing party may  have

been  motivated  by  other considerations such  as  a  desire  to

discourage claims by others against the prevailing party  or  its

insurer.73  As we explained in Catalina Yachts, we must be careful

about  allowing  fee-shifting provisions to  undercut  provisions

meant to encourage plaintiffs to bring meritorious claims.74   We

are  just as concerned about the chilling effect that Rule 82 may

have  on  class  actions  if applied too  rigidly  against  named

plaintiffs  as  we were about absent class members liability  for

fees in Turner.75   In Turner, we distinguished between awards of

          fees against named class representatives and awards sought

against absent class members, explaining that our ruling does not

eliminate  Rule  82  attorneys fees in class actions;  it  simply

limits  Rule 82s possible reach to named parties, meaning that  a

person who has been forced to litigate in order to secure his  or

her rights will be reimbursed in part for litigation expenses.76

          Monzingos  motion for class certification was  rendered

moot   by   the  superior  courts  grant  of  summary   judgment.

Nevertheless,  the  trial  court  awarded  attorneys  fees   that

included  time  spent  by Alaska Airlines in  preparing  for  and

arguing  the motion to certify the class.  Although the  superior

court  awarded  only twenty percent of actual fees in  accordance

with  the  Rule  82(b) schedule, Alaska Airlines  admits  that  a

substantial percentage, if not the majority of time listed on its

invoices  was  devoted to class certification  issues.   Monzingo

argues  that because the superior court never ruled on the  class

certification  motion, Alaska Airlines did  not  prevail  on  the

class  certification issue and thus should  not  be  eligible  to

receive  fees  related  to that issue.   We  disagree.   We  have

previously held that trial courts are not required to award  fees

on  an  issue-by-issue basis:  Rule 82(a) does not  require  that

attorneys fees be calculated with reference to the disposition of

individual  issues  .  . . .  [T]he party  who  prevails  on  the

principal  dispositive  issue  is entitled  to  reasonable  costs

calculated according to the trial courts discretion.77

          But  we  are  convinced  that  there  is  an  essential

difference between limiting the attorneys fees for which a  class

representative may be liable in litigating the merits of his  own

claim and exposing that named plaintiff to the additional risk of

having to pay substantial fees litigating class certification and

notice  issues  on  behalf  of absent  class  members.   A  named

plaintiff  serving  as  class  representative  functions  in  two

distinct  roles: to litigate the merits of his own claim  and  to

litigate  on behalf of unnamed class members.  He has a financial

          incentive to litigate his own claims.  But when a class

representative has no personal financial interest in  the  second

role,  he functions in much the same manner as a private attorney

general in a public interest law suit.78  In such situations,  it

is necessary to distinguish between the attorneys fees spent by a

prevailing  defendant who has incurred fees  defending  both  the

merits  of the individual plaintiffs claims and the structure  of

the  class  action  litigation.  Moreover,  fees  incurred  by  a

prevailing defendant litigating procedural motions related solely

to  the class action structure of the litigation are often driven

by  a  defendants desire to limit damages to the named plaintiffs

individual claim.  In such a case, the fee award should be varied

under  Rule  82(b)(3)(J), since the vigorous defense of  a  class

certification  motion  is motivated by the desire  to  discourage

claims79  that permits variance under Rule 82(b)(3).   Permitting

the threat of additional liability for fees and costs related  to

defending   class-specific  procedural  claims  will   discourage

plaintiffs  from  acting as class representatives.   We  conclude

that this is a core purpose of permitting a trial court to vary a

fee award under Rule 82(b)(3)(I).

          We  therefore  hold that a named plaintiff  should  not

ordinarily be held liable for attorneys fees that fall beyond the

scope  of  litigating the merits of his claim.   Our ruling  does

not  eliminate  the  award  of Rule  82  attorneys  fees  against

unsuccessful named plaintiffs in class action lawsuits; it simply

limits  Rule 82s reach to the substantive merits of their claims.

We  note, however, that Monzingo, as non-prevailing party,  bears

the burden of showing case-specific circumstances that warrant  a

downward  variance under Rule 82(b)(3).  Thus,  it  is  Monzingos

burden  to  demonstrate  that his motive  for  serving  as  class

representative  was limited to the value of his individual  claim

and  was  not related to any potential enhanced recovery for  his

role as class representative.80


          Because  the plain language of Alaska Airliness Mileage

Plan read as a whole reflects the parties reasonable expectations

to  allow  changes  to  all aspects of the plan  with  reasonable

notice,  including changes to previously accumulated  miles,  and

because  the  parties  course  of dealing  further  supports  the

understanding   that  the  airline  has  the  ability   to   make

retroactive changes, we AFFIRM the decision of the superior court

granting  summary  judgment  to  Alaska  Airlines.   Because  the

superior  courts  award  of  twenty  percent  of  attorneys  fees

relating  to  the  litigation of class certification  issues  was

error, we VACATE the fee award and REMAND for a determination  of

Rule 82 attorneys fees arising from litigation of the substantive

merits of Monzingos claim.

     1      The second amendment by Monzingo appears to have been
in  response  to an order by the superior court of  King  County,
Washington  that  dismissed another class action brought  against
Alaska  Airlines for changes to its frequent flyer program.   The
superior  court of Washington granted Alaska Airliness motion  to
dismiss,  which argued that plaintiffs claims were  preempted  by
the  Airline  Deregulation  Act (ADA) and  not  cognizable  under
Washington  law.  Plaintiffs claims in that case  were  dismissed
with prejudice.  Chapman v. Alaska Airlines, Inc., No. 02-2-22932-
8 SEA (Wash. Super. Ct., Sept. 26, 2002).

     2     K&K  Recycling, Inc. v. Alaska Gold Co., 80 P.3d  702,
711-12  (Alaska  2003) (citing American Computer Inst.,  Inc.  v.
State, 995 P.2d 647, 651 (Alaska 2000)).

     3     Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303
(Alaska 2000); see also Alaska Civil Rule 56(c).

     4     K & K Recycling, 80 P.3d at 712 (citing Sykes v. Melba
Creek Mining, Inc., 952 P.2d 1164, 1167 (Alaska 1998)).

     5    Id.

     6    Bliss v. Bobich, 971 P.2d 141, 147 n.5 (Alaska 1998).

     7     McNett  v. Alyeska Pipeline Serv. Co., 856 P.2d  1165,
1167 (Alaska 1993).

     8    Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska
1997)  (citing   Mt. Juneau Enters., Inc. v. Juneau  Empire,  891
P.2d 829, 834 (Alaska 1995)).

     9    49 U.S.C.  41713(b)(1) (1996).

     10    Id.

     11    504 U.S. 374, 384 (1992).

     12    513 U.S. 219 (1995).

     13    Id. at 219, 227.

     14    Id. at 228.

     15    Id. at 234.

     16    See id. at 233-34.

     17    Id. at 233 n.8.

     18     See, e.g., Breitling U.S.A. v. Federal Express Corp.,
45 F. Supp. 2d 179, 184 (D. Conn. 1999) (contract claim preempted
when  based  on  doctrines of estoppel and waiver  to  invalidate
express terms).

     19     See, e.g., Osband v. United Airlines, Inc., 981  P.2d
616,  621-22  (Colo.  App. 1998) (contract claim  preempted  when
based  on promissory estoppel, a remedy created by state  law  to
prevent injustice).

     20     See,  e.g., Travel All Over the World, Inc. v.  Saudi
Arabia,  73  F.3d  1423 (7th Cir. 1996) (punitive  damages  claim
preempted,  but  claim for failure to honor reservations  allowed
because it was a self-imposed commitment of airline).

     21     Waul v. American Airlines, Inc., 2003 WL 22719273, at
*3  (Cal.  App.,  Nov. 17, 2003) (finding each  cause  of  action
preempted  under the ADA where the complaint did  not  allege  an
independent claim for breach of contract) (citing Travel All Over
the World, 73 F.3d at 1423).

     22    Id. at *3.  The general purpose of preemption under the
ADA  is  to  avoid state interference with federal  deregulation.
Nothing  in the Act itself, or its legislative history, indicates
that  Congress had a clear and manifest purpose to displace state
[laws] in actions that do not affect deregulation in more than  a
peripheral manner.   Air Transport Assn of Am. v. City  &  County
of  San  Francisco, 266 F.3d 1064, 1070 (9th Cir.  2001)  (citing
Charas  v.  Trans World Airlines, Inc., 160 F.3d 1259, 1265  (9th
Cir.  1998) (en banc)); see also Travel All Over the  World,   73
F.3d at 1432 (Morales and Wolens allow us to discern two distinct
requirements for a law to be expressly preempted by the ADA:  (1)
A  state  must enact or enforce a law that (2) relates to airline
rates, routes, or services, either by expressly referring to them
or by having a significant economic effect upon them.).

     23    Wolens, 513 U.S. at 228.

     24     Stepanov v. Homer Elec. Assn, Inc., 814 P.2d 731, 734
(Alaska 1991) (quoting Mitford v. de Lasala, 666 P.2d 1000,  1005
(Alaska 1983)).

     25     Craig Taylor Equip. Co. v. Pettibone Corp., 659  P.2d
594, 597 (Alaska 1983) (citations omitted).

     26    Restatement (Second) of Contracts  212, comment b; see
also Still v. Cunningham, 94 P.3d 1104, 1109 (Alaska 2004).

     27     Alaska Airlines states that [t]he Mileage Plan  is  a
marketing  and promotional program, but they do not dispute  that
it is a contract.  Their argument focuses on whether the terms of
the  Mileage Plan reserved to them the right to make  changes  to
the plan.

     28    See Craig Taylor Equip. Co., 659 P.2d at 597.

     29     We  need  not address Monzingos arguments  that  form
contracts  and  ambiguities in contract  language  are  generally
construed   against  the  drafter.   Ambiguities  in  contractual
language  are  only to be construed against the  drafter  in  the
absence   of   other   means  of  ascertaining   the   reasonable
expectations of the parties.  DeCristofaro v. Sec. Natl Bank, 664
P.2d 167, 169 (Alaska 1983).

     30    Id. (citing Arctic Contractors, Inc. v. State, 564 P.2d
30 (Alaska 1977)) (additional citations omitted).

     31     Wolens  v. American Airlines, 626 N.E. 2d  205  (Ill.
1993),  revd in part on other grounds, 513 U.S. 219  (1995).   He
also relies on oral findings made by an Illinois Circuit Court in
Gutterman  v. American Airlines, Inc., No. 95 CH 982  (Ill.  Cir.
Ct., March 11, 1996).

     32    Wolens, 626 N.E.2d at 208.

     33    The Illinois Supreme Court stated that the only issues
before  the  court were whether certain claims were preempted  by
the Airline Deregulation Act.  Id. at 206.

     34    See Wolens, 513 U.S. at 235.

     35    No. 95-01379-L (Tex. Dist. Ct., June 16, 1995).

     36    33 Phila. Co. Rptr. 427 (Ct. Com. Pl. 1997).

     37    Id. at 432.

     38    Id. at 433.

     39    Morales, 504 U.S. at 379.

     40    Id. (quoting NAAG Guidelines, Introduction (1988)).

     41     A  copy  of  the NAAG Guidelines is  attached  as  an
appendix to the Supreme Courts decision in Morales.  See Morales,
504  U.S.  at 391-419.  The key provision of the NAAG  Guidelines
relates  to  vested and nonvested miles. Nonvested  miles  accrue
after  an  airline  has given adequate notice.   The  guideliness
suggestion for adequate notice language was found in Grossman  to
be  nearly  identical to USAirs reservation of  rights  language.
See Grossman, 33 Phila. Co. Rptr. at 433.  Alaska Airlines argues
the Mileage Plan provision is also identical.  The NAAG guideline
for  adequate  notice states:  (Airline) reserves  the  right  to
change  the  program rules, regulations and mileage level.   This
means  that (Airline) may raise mileage levels, add an  unlimited
number of blackout days, or limit the number of seats available .
. . .  NAAG Guidelines  3.2.3 (1988).

     42    Grossman, 33 Phila. Co. Rptr at 433.

     43    Morales, 504 U.S. at 391.

     44     Id.  at 381-89 (holding enforcement of the NAAG  fare
advertising   guidelines  through  a  States   general   consumer
protection laws is preempted by the ADA).

     45    The introduction to the NAAG Guidelines states:  It is
important  to  note that these Guidelines do not create  any  new
laws  or regulations regarding the advertising practices or other
business practices of the airline industry.  They merely  explain
in  detail  how existing state laws apply to air fare advertising
and  frequent  flyer  programs.   NAAG  Guidelines,  Introduction

     46     Monzingo became a member of the Mileage Plan in 1992,
only four years following the adoption of the NAAG Guidelines.

     47     Monzingo could book travel until August 31, 2001, for
travel anytime up to August 1, 2002.

     48    AS 45.01.205(d).

     49    AS 45.01.205(a).

     50    719 P.2d 1020, 1033 (Alaska 1986).

     51    Id. at 1033-34.

     52    We consider four factors as indicia of public interest

               (1)   the effectuation of strong  public
               (2)    numerous   people  will   receive
          benefits from the lawsuit;
               (3)   only  a  private party could  have
          been expected to bring this action; and
               (4)   the public interest litigant would
          not  have  sufficient economic  incentive  to
          bring  the  suit if the action only  involved
          issues lacking general importance.
Citizens  Coalition for Tort Reform, Inc. v. McAlpine,  810  P.2d
162,  171 (Alaska 1991) (citing Anchorage Daily News v. Anchorage
Sch. Dist., 803 P.2d 402, 404 (Alaska 1990)).

     53    Edwards v. Alaska Pulp Corp., 920 P.2d 751, 755 (Alaska

     54    Id.

     55     Tobeluk  v.  Lind, 589 P.2d 873,  876  (Alaska  1979)
(citations  omitted);  see also State v.  Abbott,  498  P.2d  712
(Alaska  1972); DeWitt v. Liberty Leasing Co., 499 P.2d 599,  602
(Alaska 1972).

     56    See Reid v. Williams, 964 P.2d 453, 462 (Alaska 1998);
see  also  Malvo  v. J.C. Penney Co. Inc., 512 P.2d  575,  586-88
(Alaska 1973).

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

     58    Reid, 964 P.2d at 462 (citations omitted).

     59    Osborne v. Hurst, 947 P.2d 1356, 1362 n.3 (Alaska 1997)
(If  one  or more Rule 82(b)(3) factors justifies departure  from
the  schedule  for  fee  awards, the trial  court  may  base  its
decision  on  those factors, without specifically explaining  why
the other factors are not relevant.).

     60    See Turner v. Alaska Communications Sys. Inc., 78 P.3d
264 (Alaska 2003) (holding that absent class members could not be
held  liable  for attorneys fees upon an adverse  judgment);  see
also  Catalina Yachts v. Pierce, 105 P.3d 125, 131 (Alaska  2005)
(holding Rule 68 applies to named class representatives  upon  an
adverse judgment).

     61    See Civil Rule 82(b)(3)(K) (permitting variation in the
attorneys  fees  award  if other equitable factors  [are]  deemed
relevant by a trial court).

     62     We  note  that  most  fee-shifting  statutes  provide
attorneys  fees only to plaintiffs for certain causes of  action,
usually  in  order to encourage the filing of smaller  claims  or
causes  of  action  stemming from civil rights  violations.   For
additional discussion of the history of Rule 82 and the  American
attorneys  fee  rule  see Susanne DiPietro  &  Teresa  W.  Carns,
Alaskas  English Rule: Attorneys Fee Shifting in Civil Cases,  13
Alaska L. Rev. 33 (1996).

     63     One  federal  district court  rejected  a  prevailing
plaintiffs request for attorneys fees under a fee-shifting  civil
rights  statute  for fees related to an unsuccessful  attempt  to
obtain  class certification; the court separated out all discrete
time that counsel spent on class issues in the case from the  fee
award.   See Webster Greenthumb Co. v. Fulton County, Ga., 112 F.
Supp.  2d 1339, 1350-51 (N.D. Ga. 2000); see also 4 Alba Conte  &
Herbert B. Newberg, Newberg on Class Actions 14.3, at 517-21 (4th
ed.  2002).   We  note, however, that Fulton County  follows  the
Eleventh  Circuits  holding  that  fee  awards  may  be   reduced
following a task-by-task examination of the fees assessed or by a
reduction  on  a percentage basis.  See American Civil  Liberties
Union  of Georgia v. Barnes, 168 F.3d 423, 427 (11th Cir.  1999).
Rule 82 creates a separate structure for analyzing fee requests.

     64    445 U.S. 338, 402 (1980).

     65    Id. at 403; see also Love v. Turlington, 733 F.2d 1562,
1565 (11th Cir. 1984) (quoting Geraghty).

     66    445 U.S. 326, 336 (1980).

     67    Id. at 338 n.9.

     68    Id.

     69    Id.

     70     A  negative value suit is one in which class  members
claims  would be uneconomical to litigate individually.    In  re
Monumental  Life Ins. Co., 365 F.3d 408, 411 n.1 (5th Cir.  2004)
(quoting Phillips Petroleum v. Shutts, 472 U.S. 797, 809 (1985)).

     71     See, e.g., Roper, 445 U.S. at 339 ([w]here it is  not
economically  feasible  to obtain relief within  the  traditional
framework  of  a  multiplicity  of  small  individual  suits  for
damages,  aggrieved persons may be without any effective  redress
unless they may employ the class-action device); see also Castano
v. America Tobacco Co., 84 F.3d 734, 748 (5th Cir. 1996) (stating
[t]he  most  compelling rationale for finding  superiority  in  a
class action [is] the existence of a negative value suit).

     72     See  Arthur R. Miller, The Pretrial Rush to Judgment:
Are  the  Litigation Explosion, Liability Crisis, and  Efficiency
Clichs  Eroding Our Day in Court and Jury Trial Commitments?   78
N.Y.U. L. Rev. 982, 1043-44 (2003) ([T]he defendant may expend  a
significant amount of resources on the [summary judgment]  motion
in  an  early  case,  making it very costly  to  defend  against.
Another,   related   possible  effect  of  a   repeat   litigants
development  of  a reputation for aggressiveness with  regard  to
summary  judgment may be to intimidate or inhibit other potential
plaintiffs  who  may not have the resources to invest  in  costly

     73     Alaska Civil Rule 82(b)(3)(J) permits a variation  in
the  fee  award to the extent to which the fees incurred  by  the
prevailing  party  suggest  that  they  had  been  influenced  by
considerations apart from the case at bar, such as  a  desire  to
discourage claims by others against the prevailing party  or  its

     74    105 P.3d at 131.

     75    78 P.3d at 269.

     76    Id.

     77    Tenala, Ltd. v. Fowler, 993 P.2d 447, 450 (Alaska 1999)
(quoting Gold Bondholders Protective Council v. Atchinson, Topeka
& Santa Fe Ry. Co., 658 P.2d 776, 779 (Alaska 1983)).

     78     See,  e.g.,  Anchorage v. McCabe, 568 P.2d  986,  990
(Alaska  1977) (stating that  awards of attorneys fees to  public
interest  plaintiffs have long been an exception to that  general
no-fee  rule and citing Newman v. Piggie Park Enter.,  Inc.,  390
U.S.  400  (1968) as authority to support the award of  attorneys
fees to private attorneys general ).

     79    Alaska R. Civ. P. 82(b)(3)(J).

     80     Alaska Airlines suggests that Monzingo may have  been
eligible  for an enhanced recovery for agreeing to act  as  class
representative  and  cites  In  re  Southern  Ohio   Correctional
Facility,  175 F.R.D. 270, 272 (S.D. Ohio 1997) as evidence  that
courts  routinely  approve incentive awards to  compensate  named
plaintiffs  for  the services they provided and  the  risks  they
incurred  during the course of the litigation.  Id.  Because  the
record  is  silent on whether Monzingo stood to  gain  additional
monetary benefit for his role as class representative, this is  a
determination that can be made by the trial court on remand.