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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. International Seafoods of Alaska, Inc. v. Bissonette (09/01/2006) sp-6038
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| INTERNATIONAL SEAFOODS OF | ) |
| ALASKA, INC., an Alaskan | ) Supreme Court No. S- 11568 |
| Corporation, | ) |
| ) Superior Court No. | |
| Appellant, | ) 3AN-02-5102 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| DANNY BISSONETTE, TOM L. | ) No. 6038 - September 1, 2006 |
| HUFFER, EVERETT M. HURLEY, | ) |
| DALE L. WEESE, GWEN M. NEAL, | ) |
| and ETHAN WILLIAMS, for | ) |
| themselves and on behalf of similarly | ) |
| situated persons, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: John S. Hedland, Hedland,
Brennan and Heideman, Anchorage, for
Appellant. William L. Choquette, Choquette &
Farleigh, LLC, Anchorage, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. BACKGROUND
A group of commercial salmon fishers from the Egegik
district of Bristol Bay sued International Seafoods of Alaska
(ISA) alleging that ISA breached its contract by paying a lower
price at the end of the season than it had earlier promised. A
jury agreed. Because the superior court properly certified the
group of fishers as a class, correctly rejected ISAs proposal to
use a separate verdict form for each class member, correctly
instructed the jury, did not abuse its discretion in imposing
limited sanctions on absent class members who did not respond to
discovery, and acted within its discretion in augmenting the
plaintiffs attorneys fees under Rule 82, we affirm the superior
court in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
Appellees are set net salmon fishers in the Egegik
District of Bristol Bay who sold red (sockeye) salmon to ISA
during the 2000 fishing season. The fishers allege ISA underpaid
them for the delivered salmon. They maintain that ISA agreed to
pay the competitive Bay price for red salmon, which at the time
was between $0.65 and $0.70 per pound. ISA argues that it only
agreed to pay the posted price of $0.50 per pound.
Buyers in Bristol Bay traditionally pay a posted or
grounds price at the time the salmon is delivered. Later in the
season, big buyers such as Trident, Peter Pan, or Icicle often
set a higher price, and smaller buyers match that price. This is
called matching the majors or meeting the bay price. Buyers will
then pay the fishers a retro bonus at the end of the year to make
up the difference between the posted price and the bay price.
This practice of paying a base price during the season and then
paying a retro later is well accepted in Bristol Bay. An
employee of ISA acknowledged this practice, testifying, Well,
when we paid retros, we paid them under the premise that we had
to keep our fishermen. If we didnt pay what our competition was
paying, then our fishermen would go away. And thats thats why
we paid thats why we matched other peoples prices even if we
lost money. The employee further elaborated regarding the
fishing season in question:
Well, in this case, in 2000, everyone knew,
because Trident . . . came out in the middle
of the season and said that they were going
to pay 65 cents for the fish. So once
Trident, whos the leader in Bristol Bay,
comes out and says that, then its you know,
the discussions over, really, what people are
going to pay. Everybody pretty much knows
what theyre going to get.
The fishers and buyers learn about increases in the
posted price and the anticipated bay price from sources such as
the National Fisherman, the Alaska Fishermans Journal, Department
of Fish and Game publications, and locally posted notices. Since
1987 ISA always paid the bay price or close to it. In the
several years leading up to 2000, ISA matched the majors. When
ISAs posted price was lower than the competitive bay price, ISA
paid retros.
The two main fish buyers on Egegik beach in the years
leading up to 2000 were ISA and Big Creek. Big Creek left the
Egegik district in 1999 and leased its dock and related
facilities to ISA. The fishers expressed concern that ISA would
have a monopoly on the Egegik beach for the 2000 season, and that
as a result ISA would not pay competitive prices for the salmon.
On May 1, 2000 before the start of the fishing season
ISA sent a letter to all Egegik fishers. The letter stated in
part:
Dear Egegik Fishermen:
Greetings again from everyone here at I.S.A.
The 2000 salmon season is ready to kickoff
and we wanted to let all of you know that we
have acquired the Big Creek Fisheries plant
and property. We just wanted to speak to
some of the concerns that fishermen have
expressed to us. Here they are:
. . . .
3. Will I.S.A. continue to be competitive
with the price?
Yes. We have always done things according to
our own costs and sales and we will continue
to do that. We know that to keep your
business we must be competitive with our
price and by acquiring Big Creek we are
making a financial commitment to do business
on the beach for years to come.
The fishers interpreted this letter to mean that ISA
would match the majors and pay the competitive bay price for
salmon that season. The fishers focused on the word competitive,
which they contend has a specific meaning in Bristol Bay.
According to the fishers, being competitive in Bristol Bay means
paying bay price and [being] competitive with every other fish
buyer in the area and the district. Based on common practice in
Bristol Bay, ISAs previous course of dealing, and ISAs explicit
promise to be competitive with our price, the fishers argued that
they had a contract to provide salmon in exchange for the bay
price and that ISA breached this contract. The fishers also rely
on a meeting between fishers and ISA representatives in the
summer of 2000, during which ISA allegedly promised to pay the
bay price.
ISA contends on appeal that it made no such promise.
ISA looks to the language in the letter regarding its own costs
and sales. The cannery argues on appeal:
ISAs purpose in utilizing the language
relating to its own costs and sales was to
make clear that the amount to be paid,
including any retro payment that might be
made at the end of the year, would have to
depend upon its own market conditions, and
not those of a competitor such as the major
buyers in Bristol Bay.
(Emphasis in original.)
ISA claims it needed to base its payments on its own
profit margin and not that of its competitors. Due to a variety
of factors, ISA lost money on the Egegik operation in 2000.
Consequently, it determined that it could not pay the retro above
the posted price.
B. Proceedings
Six Egegik fishers filed a class action complaint
against ISA on February 28, 2002. The fishers argued that they
relied on ISAs representations that the cannery would pay fishers
the competitive bay price, and that ISA subsequently failed to
pay that price. They requested monetary damages for the
difference between the price paid and the bay price. (They also
requested damages for plugging, which refers to a cannerys
inability to buy all the fish provided by the fishers, although
they later dropped that claim.) They sought pre- and post-
judgment interest, costs, and attorneys fees.
In August 2002 plaintiffs moved to certify the suit as
a class action. They defined the class as all fishers in the
Egegik District who sold fish to ISA during the 2000 fishing
season. Plaintiffs contended that they met the prerequisites for
class certification under Civil Rule 23, including numerosity,
commonality, typicality, and adequacy of representation.
ISA strongly opposed the motion for class
certification. It argued that plaintiffs could not meet the
numerosity requirement because the class was small and its
members easily identifiable. In addition, ISA maintained that
the potential claims were sufficiently large to provide adequate
incentive for the fishers to pursue them individually. ISA also
challenged the adequacy of representation, relying on the fact
that only a few fishers attended the meeting at which ISA
promised to pay the retro. ISA maintained that fishers not
present at the meeting could not claim reliance on an oral
contract, and thus the representatives could not properly
represent them in the litigation.
Superior Court Judge William F. Morse initially
declined to certify the class until plaintiffs provided further
evidence of the policy rationales for a class action in
accordance with Civil Rules 23(b) and 23(c).1 After both the
fishers and ISA submitted additional information, Judge Morse
certified the class, defining it as [a]ll fishers who, in the
year 2000, took salmon from the Egegik District and sold those
salmon to International Seafoods of Alaska, Inc.
ISA moved for reconsideration of the certification
order which was denied. ISA then petitioned this court to review
the superior courts class certification. We denied the petition
for review.
ISA next requested that individual fishers who did not
answer its interrogatories be excluded or dismissed from the
class. ISA declared that fishers who do not care enough about
their claims to devote a few minutes to providing obviously
relevant information should have their claims dismissed or they
should be excluded from the class. The superior court denied
ISAs motion. The court refused to dismiss claims of non-
responding absent members, holding that such a severe sanction
was not warranted. Rather, the court restricted the evidence
that plaintiffs could introduce at trial to documents or
statements that had been provided in discovery. This ruling
precluded non-responding plaintiffs from testifying at trial.
ISA again moved for reconsideration. ISA argued that
it was prejudiced by the courts ruling because interrogatory
responses might have been favorable to it. ISA had hoped to find
evidence from absent members that some of the fishers had not
received any price information directly from ISA and thus could
not reasonably have relied on ISAs alleged representations. The
superior court denied ISAs motion. The court acknowledged ISAs
argument, but it explained that the negative impact of its
decision on the defendant is simply a consequence of the general
rule that parties cannot obtain discovery from absent class
members. The court held that ISA had not shown sufficient cause
to deviate from this general rule.
Throughout trial, ISA continued to argue against the
notion of a class action. ISA fought class certification under a
variety of guises, particularly in relation to the use of a
single jury verdict form and the instruction to the jury that it
find a single final price applicable to all fishers. ISA
requested jury verdict forms for all 110 members of the class.
The court held firm to the single verdict form, stating [T]hats
the whole point of a class action, . . . you dont have 110
plaintiffs, you have a class.
The jury found that ISA owed an additional amount for
the red salmon it purchased from the plaintiffs in Egegik during
the 2000 season. It set this amount at $0.17 per pound.
ISA moved for judgment notwithstanding the verdict and
for a new trial. ISA argued that Jury Instruction No. 72
overrode the jury fact-finding function by declaring as a matter
of law that the cannery had entered into a single contract with
all the fishers. The cannery argued that even if the jury could
have found a single contract, the court erred in establishing
that as a matter of law. It maintained that the practical effect
of the jury instruction was to require the jury to find the same
price for all fishers, even if the overwhelming majority of
fishers did not understand that they were entitled to the bay
price. The superior court denied ISAs motion.
Meanwhile, the fishers moved for award of attorneys
fees. They raised two separate fee issues: (1) what fees should
be awarded to the fishers as the prevailing party (fee shifting);
and (2) what fees the court, in its discretion, should approve
for payment to class counsel from members of the class (fee
sharing). Pursuant to the formula outlined in Civil Rule
82(b)(1),3 the court awarded the fishers attorneys fees of
$55,985.46. In addition, the court, as allowed by Civil Rule
82(b)(3), augmented the fee award by $15,000 to account for the
additional work generated by class issues.4 Finally, the court
increased the baseline percentage paid by the class from twenty-
five percent to thirty-five percent, so that class counsel
received $212,043.99 through fee sharing.5
ISA appeals the courts certification of the class;
certain evidentiary and discovery rulings made by the court; the
issuance of a single jury verdict form, as well as a jury
instruction acknowledging a contract for a single price on fish;
and the enhanced award of attorneys fees.
III. STANDARD OF REVIEW
We will overturn the superior courts decision to
certify a class only if the court abused its discretion.6 We
will find that the superior court abused its discretion only if
we are left with a definite and firm conviction, after reviewing
the record as a whole, that the trial court erred in its ruling.7
We review rulings on discovery sanctions for abuse of discretion.8
We also review evidentiary rulings for abuse of discretion.9
ISA contends that the superior courts determination
that ISA entered into a single contract with all fishers and that
all fishers were entitled to the same price amounted in substance
to the grant of a partial directed verdict in favor of the
fishers. We disagree with this characterization and conclude
that it was simply a resolution of a question of law, subject to
de novo review.10 On questions of law, we adopt the rule of law
that is most persuasive in light of precedent, reason, and
policy.11
In reviewing the superior courts rulings on jury
instructions, we apply our independent judgment to determine
whether the challenged instruction states the law correctly.12
We will overturn a superior courts award of attorneys
fees only upon a showing of abuse of discretion or a showing that
the award is manifestly unreasonable.13
IV. DISCUSSION
A. The Trial Court Did Not Err in Certifying this Case as
a Class Action.
ISA first argues that this case never should have been
certified as a class action.14
In order to be certified as a class, plaintiffs must
meet the requirements of Civil Rule 23:
One or more members of a class may sue or be
sued as representative parties on behalf of
all only if (1) the class is so numerous that
joinder of all members is impracticable, (2)
there are questions of law or fact common to
the class, (3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class, and (4) the
representative parties will fairly and
adequately protect the interests of the
class.
In addition to these prerequisites, a class action
should serve certain policy interests. A class action may be
certified if it alleviates risks of inconsistent or varying
adjudications or the disposition or impairment of interests of
members of the class who are not parties to the adjudications.15
It may also be certified if common questions predominate, making
it a superior method for the fair and efficient adjudication of
the controversy.16
We conclude that the superior court did not err in
ruling that the fishers satisfied each of the prerequisites for a
class action. First, they meet the numerosity requirement
because the class is numerous and joinder would have been
impracticable. The class includes 110 fishers who live in
Alaska, Washington, Maryland, Colorado, Oregon, California, and
other states. While there is no magic number satisfying the
numerosity requirement,17 a proposed class containing more than
forty members has been presumed to meet the requirement.18 In
addition, it would have been impracticable to join class members
who are so geographically dispersed.
Second, the commonality and typicality requirements are
met because the plaintiffs share a single legal issue arising out
of the same sequence of events: claimed breach of contract by ISA
in setting the contract price during the 2000 fishing season.
The typicality requirement is satisfied when each class members
claim arises from the same course of events, and each class
member makes similar legal arguments to prove the defendants
liability.19 The commonality requirement is satisfied if the
named plaintiffs share at least one question of fact or law with
the grievances of the prospective class.20 In this case, the
fishers claims all arise out of the failure of ISA to pay the bay
price for the delivered fish. Each fisher seeks the same damages
the difference between the competitive bay price and the price
ISA actually paid.
Finally, because the class representatives have the
same interests as the rest of the class and class counsel was
competent, representation is adequate. For representation to be
adequate, the plaintiffs attorney must be qualified, and there
must be no conflict of interest between the named plaintiff and
the other members of the class.21 ISA did not challenge the
qualifications of the attorneys representing the class. There is
no conflict of interest among class members because all
plaintiffs had the same interests and the same damages and any
fisher who did not wish to participate in the litigation had the
opportunity to opt out.
On a policy level, class certification was necessary
because otherwise the fishers faced a risk of inconsistent
adjudications and many of them may have elected not to litigate.
Moreover, because questions of law and fact common to the class
predominate over questions affecting individual members, it would
be more fair and efficient to adjudicate these questions as a
class.
The question of class certification in this case was
litigated extensively, and Judge Morse ultimately rejected ISAs
arguments against certification. The court certified the class,
defining it as [a]ll fishers who, in the year 2000, took salmon
from the Egegik District and sold those salmon to International
Seafoods of Alaska, Inc. ISA has not demonstrated that the
superior court abused its discretion in certifying the class.
For the reasons set out above, we affirm the class certification.
B. The Trial Court Did Not Abuse its Discretion in
Declining To Impose the Most Severe Sanction on Absent
Class Members Who Failed To Respond to Discovery
Requests.
ISA submitted a set of discovery requests to class
members via the plaintiffs attorneys. Many of the passive,
absent members did not respond. ISA asked the trial court to
sanction non-responding absent members by having their interest
in the litigation dismissed or having them excluded from the
class. Judge Morse declined to adopt this draconian measure,
stating, That is the most severe discovery sanction and not
warranted here. Instead, the court restricted the evidence
plaintiffs could introduce at trial to documents or statements
that had been provided in discovery. ISA maintains that the
superior court abused its discretion when it declined to dismiss
or exclude these non-responding absent class members from the
litigation.
The primary questions ISA raises are (1) whether non-
responding class members should be considered parties for the
purposes of discovery, and (2) if so, whether they can be
sanctioned for failing to reply to interrogatories.
The United States Supreme Court has stated that non-
named class members may be parties for some purposes, but not for
others.22 The label party does not indicate an absolute
characteristic, but rather a conclusion about the applicability
of various procedural rules that may differ based on context.23
In Devlin v. Scardelletti, the Court concluded that non-named
class members were parties in the sense of being bound by the
settlement.24 Similarly, non-named class members are parties in
the sense that the filing of an action on behalf of the class
tolls a statute of limitations against them.25 Otherwise all
class members would be required to intervene to preserve their
claims, thereby defeating the goals of simplification and
efficiency.26
In Transamerican Refining Corp. v. Dravo,27 a federal
district court considered whether absent class members were
parties for the purposes of discovery. The court noted that
Federal Rules of Civil Procedure 33 and 34 do not provide for
discovery against absent class members as a matter of course.28
However, it noted that the majority of courts considering the
scope of discovery against absent class members have granted
discovery via interrogatories when: (1) the information requested
is relevant to the decision of common questions; (2) the
discovery requests are offered in good faith and are not overly
burdensome; and (3) the information is not available from the
class representative parties.29 The court in Dravo determined
that limited discovery under the circumstances was warranted
because the discovery sought was relevant to the decision of
common questions and may have been known only to absent class
members.30
The Seventh Circuit addressed the same question in
Brennan v. Midwestern United Life Insurance Co.31 In that case,
the court concluded that absent class members may be required to
submit to discovery, and that sanctions are available to compel
compliance with such discovery orders.32 However, the court also
acknowledged that dismissal of absent class members claims is a
drastic sanction.33 Ultimately, the court held that [w]hile
absent class members should not be required to submit to
discovery as a matter of course, if the trial judge determines
that justice to all parties requires that absent parties furnish
certain information, we believe he has the power to authorize the
use of the Rule 33 and 34 discovery procedures.34
Some courts have rejected Brennan and ruled that absent
class members are not subject to discovery. In Gardner v. Awards
Marketing Corp.,35 the federal district court in Utah held that
the defendant could not submit proposed interrogatories to absent
class members. Defendants in that case sought to submit
interrogatories to all members of the class. The court refused
this request in part because it would be incompatible with the
rationale of Rule 23, an undue burden upon the members of the
class, unnecessary, and unjustifiably dilatory to permit the
proposed interrogatories.36 The court warned against the danger
of irreconcilable conflicts between the class action concept and
otherwise permissible discovery, and concluded that
interrogatories should be authorized only upon a strong showing
of necessity or likely material aid in resolving common
questions.37
It is clear from these cases that a trial court has
broad discretion to choose whether to impose any sanctions at all
on the non-responding class members, as well as the degree of
punishment. We will overturn the trial courts decision only if
it manifests an abuse of discretion.38 While the trial court
could have chosen to impose more severe sanctions against the non-
responding class members in line with Dravo, it also had the
option of imposing less drastic sanctions. The trial court opted
for an intermediate sanction: to exclude from testimony documents
not identified or produced and oral statements not disclosed
during discovery. Judge Morse was well within his discretion to
adopt this measure.
C. The Trial Court Did Not Err in Refusing To Allow ISA To
Place the Complaint into Evidence or in Permitting the
Fishers To Elicit Testimony Regarding Witnesses
Subjective Feelings.
In its statement of the issues on appeal, ISA asks us
to review whether the trial court erred in refusing to allow
defendant to place the complaint into evidence, and whether the
court erred in permitting the fishers to elicit testimony from
witnesses as to their subjective feelings about their entitlement
and interpretations of statements attributed to the defendant.
In its briefing to this court, ISA addresses the issue of the
complaint only in a footnote and does not provide any argument as
to whether the court abused its discretion in refusing to allow
the complaint to be entered as evidence. Thus, this argument is
waived.39
Beyond the statement of the issues, ISA never addressed
the final question regarding the propriety of eliciting witnesses
subjective feelings and interpretations of ISAs statements. An
issue raised in the points on appeal but not adequately briefed
is considered abandoned.40
D. The Trial Court Did Not Err in Giving the Jury a Single
Verdict Form.
ISA maintains that it had separate contracts with each
of the fishers, and that it was entitled to have the jury
adjudicate each contract separately, as though this were not a
class action. ISA relies on Krossa v. All Alaskan Seafoods,
Inc.,41 which it interprets to mean that a particularized decision
is necessary as to each individual claim. We conclude that
Krossa does not stand for the proposition asserted by ISA.
Krossa was not a class action. In that case, fisherman
John Krossa signed a contract with All Alaskan Seafoods to fish
for crab in exchange for a percentage of the gross receipts from
the venture.42 Unfortunately, the parties relied on different
interpretations of the contractual phrase regarding payments
based on gross receipts.43 All Alaskan did not calculate gross
receipts in accordance with custom of the trade.44 Instead of
compensating the crew based on the price per pound of the catch
the typical means of determining gross receipts All Alaskan used
a complicated formula based on an artificial, fixed price per
pound.45 The term gross receipts was ambiguous and the parties
understood the agreement differently.46 Consequently, until
Krossa understood the gross receipts formula employed by All
Alaskan, there was no contract.47
In deciding Krossa, we looked to Narte v. All Alaskan
Seafoods, Inc.,48 an unpublished federal district court case
addressing the same All Alaskan contract. Krossa attempted to
argue that the meaning of gross receipts had been established in
Narte, and that All Alaskan was collaterally estopped from
relitigating the meaning of the phrase.49 However, we rejected
Krossas argument, noting that the federal district court in Narte
specifically emphasized that its findings were intended to apply
only to the plaintiffs in that case.50 Thus, we held that the
interpretation in Narte had no collateral estoppel effect in
Krossa.51
ISA relies on our statement in Krossa that Narte
determined only the meaning of the term [gross receipts] as
understood by the particular parties,52 to mean that we can
determine the effects of a contractual term only on an
individualized basis. Consequently, ISA requested individual
verdict forms for each class member. However, ISAs
interpretation of Krossa and Narte ignores the fact that those
cases, unlike the current case, were decided individually and not
as part of a class action. The parties in Krossa and Narte sued
All Alaskan separately, and in different courts. In contrast,
despite ISAs wishes to the contrary, this case has been certified
as a class action.
The present case is quite similar to State, Commercial
Fisheries Entry Commission v. Carlson.53 In that case, we
explained that class action suits are necessary to avoid a
multiplicity of duplicative lawsuits.54 The question in Carlson
was whether Alaska could charge nonresident commercial fishers
more for commercial fishing licenses than it charged resident
commercial fishers.55 The state sought to require that each
nonresident commercial fisher file suit on his or her own behalf.
We declined to enforce such a requirement because it would result
in multiple duplicative suits.56 Accordingly, we held that the
trial judges decision to allow named class members to sue on
behalf of unnamed class members was proper.57
ISA, like the state in Carlson, wants each Egegik
fisher to file suit individually to enforce the contract for the
2000 fishing season. This would have the same effect as
requiring each commercial fisher to sue on his or her own behalf
to recover a license overcharge. ISA has already lost its bid to
decertify the class and cannot circumvent that decision now by
arguing that it is entitled to individual verdicts for each
fisher. The fishers in the current case are plaintiffs in a
class action. A class of plaintiffs is entitled to the same
verdict.58 The superior court did not abuse its discretion in
providing only one verdict form.
E. The Trial Court Did Not Err in Issuing a Jury
Instruction Stating that ISA and the Fishers Entered
into a Contract Under Which ISA Would Pay All Fishers
the Same Price.
ISA contends that the trial court erroneously
determined as a matter of law that each fisher was entitled to
the same price. The cannery states, [I]t was fundamental error
for the court to hold, as a matter of law, that ISA had entered
into a single contract with all of the fishers and that all of
the fishers were automatically entitled to the same price. ISA
contends that the trial court erred by incorporating its
conclusion that there was a single contract at a single price
in[to] its jury instructions, particularly instruction number
seven.59 We disagree.
Jury Instruction No. 7 asks jurors to determine whether
ISA promised to pay a particular price as part of its contract
with the Egegik fishers. Specifically, the instruction says:
In this case the plaintiffs and the
defendant, International Seafoods of Alaska,
Inc., agree that they entered into a
contract. The plaintiffs claim that, under
the contract, the defendant promised to pay
all plaintiffs what the plaintiffs describe
as the competitive price or bay price, to be
determined at the end of the season.
The defendant denies that this promise
was made. The defendant maintains that it
promised to pay all plaintiffs the same
price. It claims that it agreed to pay $0.50
per pound with the possibility that it would
pay more at the end of the season if its
sales and costs permitted a supplemental
payment.
You must decide whether a promise to pay
a particular price was made as part of the
contract. A promise may be implied from
conduct or words. The law does not require
that the conduct or words be in any special
form.
To find that a promise was made as part
of the contract, you must decide that it was
more likely true than not true that:
(1) The defendant promised the
plaintiffs as a group that the defendant
would pay the competitive or bay price; and
(2) The defendants promise was made in
exchange for something of value given or
promised by the plaintiff.
If you decide that both things are more
likely true than not true, then the
defendants promise was part of the contract.
Otherwise, you must return a verdict for
the defendant on this claim.
(Emphasis added.)
ISA argues that this jury instruction precluded the
jury from determining that different fishers were entitled to
different prices based upon their individual contractual
arrangements with ISA. However, ISA undercut its own argument by
steadfastly maintaining at trial that it entered into the same
contract with each fisher and that it was simply contesting the
price. Over and over, ISA argued that it had a contract for a
single price with all of the Egegik fishers, but that it was at a
lower price than the one claimed by the fishers. For example,
during opening statement to the jury, counsel for ISA repeatedly
contrasted plaintiffs argument for the bay price with the price
that ISA had agreed to pay. During the argument over jury
instructions, ISA stated, ISA believes everybodys supposed to get
the same price, but its not the price they think theyre supposed
to get. It also noted, [Our] position is we said were going to
pay a 50-cent ground price. If our costs and sales justify it,
were going to pay a retro at the end of the year. Later, during
closing statements, ISA stated that its price was 50 to 55 cents,
depending on where the fish were delivered. Thus, the portion of
the jury instruction stating that ISA maintains that it promised
to pay all plaintiffs the same price and that it agreed to pay
$0.50 per pound with the possibility that it would pay more,
accurately reflected ISAs position. The trial court did not err
in explaining that position to the jury.
In addition, even if ISA had not actually conceded that
it intended to pay a single rate to all Egegik fishers, it failed
to prove the existence of multiple contracts for different rates.
ISA maintains that there should be a strong presumption of
different contracts because there is no signed contract, and
because ISA and the fishers interpreted the only written document
the May 1 letter differently. ISA looks to Krossa60 to justify
this argument. In Krossa, although all crew members signed
identical contracts, some crew members had oral communications
with All Alaskan regarding the meaning of the contracts and some
did not.61 Because the contract language in Krossa was ambiguous
and the parties understood the agreement differently, we
concluded that the written agreement signed by Krossa did not
constitute a valid contract.62 ISA analogizes our Krossa analysis
to assert that its interactions with the Egegik fishers resulted,
not in an invalid contract, but rather, in multiple contracts.
ISAs analysis is fundamentally flawed for two reasons.
First, the fishers in Krossa did not share one common
understanding of the compensation system. Rather, some
understood gross receipts in its traditional sense, while others
had been informed of All Alaskans unique definition.63 Thus, we
explicitly declined to adopt the meaning of the term gross
receipts determined by the Narte court, even though the fishers
in both Krossa and Narte were suing over the same written
agreement.64 In contrast, the parties in this case do not dispute
the meaning of the term bay price. The question in this case is
whether ISA intended to pay the bay price to all Egegik fishers
when it told them it would be competitive, or whether it intended
to pay the ground price to all fishers. The jury concluded that
ISA agreed to pay all fishers the bay price.
Second, unlike Krossa, the question in the present case
is not whether the fishers and ISA ever had a valid contract, but
rather whether the May 1, 2000 letter changed the terms of that
contract. ISA contends that the letter did change the contract
as applied to all the Egegik fishers; the fishers disagree. Had
the jury determined, in accordance with ISAs argument, that the
letter changed the terms of the contract, all fishers would have
received only the ground price. Since the jury agreed with the
fishers that the letter had no effect on the prior oral contract,
all fishers were entitled to a retro payment based on the same
price per pound. Either way, the superior court did not err in
holding that all fishers were entitled to the same price.
As it turned out, the jury concluded, after hearing all
the evidence, that ISA had contracted to pay the fishers the bay
price. It interpreted the term competitive to refer to the bay
price and not to ISAs price margin.
F. The Trial Court Did Not Abuse Its Discretion in
Augmenting the Attorneys Fee Award.
ISA complains that the trial court abused its
discretion in augmenting the attorneys fee award by $15,000.
Civil Rule 82 calls for partial reimbursement by the non-
prevailing party of the fees the prevailing party has incurred.
Rule 82(b)(1) establishes a formula tying reimbursement to the
amount of the money judgment the prevailing party received. The
trial court held that, pursuant to this rule, ISA owed the Egegik
fishers $55,985.46, subject to variation under Rule 82(b)(3).
Rule 82(b)(3) permits the court to vary an attorneys
fee award. The trial court decided to increase the award based
on the work performed and the efficiency of the class action
mechanism for the pursuit of this claim. According to the court,
ISA benefitted from the class action by avoiding the expense of
multiple trials.
ISA challenges this conclusion, declaring that it was
disadvantaged rather than advantaged by the class action. But
ISA does not cite any authority for reversing the trial courts
decision. We conclude that the court did not abuse its
discretion in augmenting the plaintiffs award of attorneys fees.
V. CONCLUSION
Because the class of fishers was properly certified and
all subsequent decisions flowing from this certification,
including the single verdict form and Jury Instruction No. 7,
were appropriate, because the superior court did not abuse its
discretion in sanctioning the absent class members or augmenting
attorneys fees awarded to the prevailing party, and because the
superior court did not err in refusing to enter the parties
pleadings into evidence, we AFFIRM the disputed rulings of the
superior court in all respects.
_______________________________
1 Civil Rule 23(b) requires that the representatives
demonstrate that certification is necessary (1) to avoid
inconsistent or varying adjudications; (2) to avoid impeding the
ability of non-parties to protect their interests; or (3) to
achieve the most efficient and fair adjudication. Civil Rule
23(c) requires the court to describe the members of the class and
to direct the best notice practicable to its members.
2 Instruction No. 7 provided as follows:
In this case the plaintiffs and the
defendant, International Seafoods of Alaska,
Inc., agree that they entered into a
contract. The plaintiffs claim that, under
the contract, the defendant promised to pay
all plaintiffs what the plaintiffs describe
as the competitive price or bay price, to be
determined at the end of the season.
The defendant denies that this promise
was made. The defendant maintains that it
promised to pay all plaintiffs the same
price. It claims that it agreed to pay $0.50
per pound with the possibility that it would
pay more at the end of the season if its
sales and costs permitted a supplemental
payment.
You must decide whether a promise to pay
a particular price was made as part of the
contract. A promise may be implied from
conduct or words. The law does not require
that the conduct or words be in any special
form.
To find that a promise was made as part
of the contract, you must decide that it is
more likely true than not true that:
(1) The defendant promised the
plaintiffs as a group that the defendant
would pay the competitive or bay price; and
(2) The defendants promise was made in
exchange for something of value given or
promised by the plaintiff.
If you decide that both things are more
likely true than not true, then the
defendants promise was part of the contract.
Otherwise, you must return a verdict for
the defendant on this claim.
3 Civil Rule 82(b)(1) sets out a schedule for determining
attorneys fees. The fees vary based on the amount of the money
judgment and whether the case went to trial.
4 Under Civil Rule 82(b)(3), the court may vary an
attorneys fee award if, upon consideration of a variety of
factors, the court determines that variation is warranted.
5 The court sought to balance its desire to award an
increased fee in order to encourage counsel to take on class
actions against its fear that too great a fee award would deprive
the class of its compensatory damages. The court concluded that
an increase from twenty-five percent to thirty-five percent would
encourage counsel to engage in modest class actions that have a
relatively low limit on the amount of damages that are possible,
but without which few of the class members would be unable to
pursue the litigation.
6 Bartek v. State, 31 P.3d 100, 101 (Alaska 2001); State,
Dept of Revenue v. Andrade, 23 P.3d 58, 65 (Alaska 2001).
7 City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004); Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994).
8 Hikita v. Nichiro Gyogo Kaisha, Ltd., 85 P.3d 458, 460
(Alaska 2004).
9 City of Bethel v. Peters, 97 P.3d 822, 825 (Alaska
2004).
10 Jarvis v. Ensminger, 134 P.3d 353, 357 (Alaska 2006).
11 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
12 Samaniego, 83 P.3d at 1082.
13 Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska
1995). See also Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970).
14 ISA opposed class certification at the trial court
level and in an interlocutory appeal to the supreme court. The
trial court denied the motion opposing certification, and we
denied ISAs petition for review. A denial of a petition for
review does not constitute a determination of the issue in the
case, and it is not a final judgment for purposes of res
judicata. Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska
1977).
15 Alaska R. Civ. P. 23(b)(1)(A)-(B).
16 Alaska R. Civ. P. 23(b)(3).
17 Miller v. Farmer Bros. Co., 64 P.3d 49, 54 n.1 (Wash.
App. 2003). See also Moskowitz v. Lopp, 128 F.R.D. 624, 628
(E.D. Pa. 1989).
18 See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553
(11th Cir. 1986). We note that Alaska R. Civ. P. 23(a)-(e) is
identical to Fed. R. Civ. P. 23(a)-(e). See also 1 Herbert
Newberg & Alba Conte, Newberg on Class Actions 3:5, at 247 (4th
ed. 2002).
19 Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.
1997) (citation omitted).
20 Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d
Cir. 1994).
21 Marisol A., 126 F.3d at 378.
22 Devlin v. Scardelletti, 536 U.S. 1, 9-10 (2002).
23 Id. at 10. Although bound by the settlement, non-named
class members who objected at the settlement fairness hearing
could appeal the approval of the settlement. Id.
24 Id.
25 Id.
26 Id.
27 139 F.R.D. 619 (S.D. Tex. 1991).
28 Id. at 621.
29 Id.
30 Id. at 622.
31 450 F.2d 999 (7th Cir. 1971).
32 Id. at 1004.
33 Id. at 1003.
34 Id. at 1005.
35 55 F.R.D. 460 (D. Utah 1972).
36 Id. at 462.
37 Id. at 463.
38 Hikita v. Nichiro Gyogyo Kaisha, Ltd., 85 P.3d 458, 460
(Alaska 2004) (The superior court has broad authority to
determine appropriate sanctions for discovery violations, and its
decisions in this area are subject only to review for abuse of
discretion.) (internal citation omitted).
39 Alderman v. Iditarod Props., Inc., 104 P.3d 136, 146
(Alaska 2004) (holding that failure to adequately brief an issue
constitutes waiver of the issue).
40 Id.
41 37 P.3d 411 (Alaska 2001).
42 Id. at 413.
43 Id.
44 Id.
45 Id.
46 Id. at 417.
47 Id.
48 No. C95-794WD (W.D. Wash., July 31, 1997), affd, Narte
v. All Alaskan Seafoods, Inc. (Narte II), 211 F.3d 1274, 2000 WL
237923 (9th Cir., March 1, 2000) (unpublished).
49 Krossa, 37 P.3d at 418.
50 Id.
51 Id.
52 Id.
53 65 P.3d 851 (Alaska 2003).
54 Id. at 872.
55 Id. at 853.
56 Id. at 872-73.
57 Id.
58 Id.
59 Appellant Brief 2.
60 37 P.3d 411 (Alaska 2001).
61 Id. at 414.
62 Id. at 416-17.
63 Id. at 414.
64 Id. at 418 (explaining that Narte decision did not have
collateral estoppel effect on interpretation of meaning of gross
receipts).
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