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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Neese v. State (07/10/2009) sp-6388
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
| JACKIE L. NEESE, individually and | ) |
| on behalf of all others similarly | ) |
| situated, | ) |
| ) Supreme Court No. S- 12624 | |
| Appellants, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-06-13341 CI |
| ) | |
| STATE OF ALASKA, and | ) |
| LITHIA CHRYSLER JEEP OF | ) |
| ANCHORAGE, INC., LITHIA OF | ) |
| ANCHORAGE, INC. d/b/a LITHIA | ) |
| DODGE OF SOUTH ANCHORAGE, | ) |
| LITHIA OF SOUTHCENTRAL | ) |
| ALASKA, INC. d/b/a CHEVROLET | ) |
| OF WASILLA, LITHIA IMPORTS OF | ) |
| ANCHORAGE, INC. d/b/a LITHIA | ) |
| HYUNDAI OF ANCHORAGE, | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6388 - July 10, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Jack W. Smith, Judge.
Appearances: Trena L. Heikes, Law Office of
Trena L. Heikes, and Chris Bataille, Walther
& Flanigan, Anchorage, for Appellants. Clyde
E. Sniffen, Jr., Senior Assistant Attorney
General, Anchorage and Talis J. Colberg,
Attorney General, Juneau, for Appellee State
of Alaska, Howard S. Trickey, Gary C.
Sleeper, and Matthew Singer, Jermain Dunnagan
& Owens, P.C., Anchorage, for Lithia
Appellees.
Before: Matthews, Eastaugh, Carpeneti, and
Winfree, Justices. [Fabe, Chief Justice, not
participating.]
CARPENETI, Justice.
I. INTRODUCTION
After an investigation into violations of state
consumer protection laws, the state entered into a consent
judgment with a large car sales company. A group of consumers
who had purchased vehicles at the companys dealerships moved to
intervene in the consent judgment proceeding, but the superior
court denied intervention. The consumers appeal, arguing that
the superior court erred by denying intervention as of right and
abused its discretion by denying permissive intervention.
Because the consumers have not met the requirements for
intervention as of right or permissive intervention, we affirm
the decision of the superior court.
II. FACTS AND PROCEEDINGS
This case involves the settlement of a consumer
protection investigation by the state attorney general concerning
violations of the Alaska Unfair Trade Practices and Consumer
Protection Act by several of the Lithia auto dealerships in
Alaska. The states inquiry into Lithias practices
began in July 2001 when Assistant Attorney General Clyde Sniffen
sent a letter to the general manager of Lithia Chrysler Jeep of
Anchorage. In this letter, Sniffen stated, [w]e have . . . taken
the position that document preparation fees may be charged by a
dealer, but these charges must be included in the advertised
price for the vehicle. The only fees that can be excluded from
the advertised price are licensing and registration fees actually
paid to a state agency. The attorney general did not pursue
enforcement action after this letter was sent.
Four years later, in the course of an individual car
purchasers private action against Lithia for failure to disclose
required information, counsel for the purchaser who also
represent the appellant used car purchasers in this case
(consumers) discovered numerous consumer complaints filed
against Lithia with the Better Business Bureau. In July 2005,
while the individual case was pending, consumers counsel
contacted Sniffen and advised him of evidence that Lithia had
failed to inform a purchaser, as it was required to do by law,
that the vehicle she was purchasing had previously been wrecked
and repaired. In September 2005 consumers counsel forwarded to
Sniffen other consumer complaints against Lithia. The complaints
attacked Lithias failure to disclose information regarding
vehicles sold to consumers in violation of AS 45.25.465 and its
practice of charging consumers a $200 document preparation fee in
violation of AS 45.25.440 and AS 45.25.460. In December 2005
consumers counsel met with Sniffen and revealed their intent to
file class action suits against Lithia on behalf of consumers
injured by Lithias illegal practices.
In January 2006 the consumers filed their class action
complaint against Lithia alleging violations of the used vehicle
disclosure provisions of AS 45.25.465 and AS 45.25.470. The
complaint named eight individual plaintiffs who would serve as
class representatives for all consumers who had purchased used
vehicles from various Alaska Lithia dealerships since July 1,
2002.
While the consumers were preparing their class action,
the attorney general was investigating Lithias charging of
document preparation fees and Lithias failure to provide
statutorily required disclosures to vehicle purchasers. After
receiving numerous complaints about Lithias actions, the attorney
general served Lithia with a subpoena requesting information
relating to used vehicle sales at the three largest Alaska Lithia
dealers. Lithia responded by submitting numerous deal files
containing purchase and sale documents for used vehicle sales.
As a result of its investigation and review of Lithias
deal files, the attorney general entered into a consent agreement
with Lithia on December 1, 2006. Pursuant to the agreement, the
state filed a complaint against Lithia in the superior court
seeking injunctive relief, civil penalties, and restitution and
filed the consent judgment the same day.
The consent judgment was intended to resolve all the
states claims asserted in the complaint, and provide restitution
and other relief to consumers who suffered damage as a result of
Lithias conduct. It includes injunctive relief mandating that
Lithia not sell a used vehicle unless Lithia complies with the
disclosure requirements of AS 45.25.465, and not sell a motor
vehicle in violation of AS 45.25.440. The consent judgment also
requires that Lithia not charge an administration fee, document
preparation fee, or any other dealer fee unless the fee is
included in the advertised price of the vehicle. In addition,
the consent judgment assesses a $500,000 civil penalty against
Lithia. It also requires Lithia to provide restitution to
customers by refunding dealer fees charged in addition to the
advertised price of vehicles sold. In addition to the refund of
dealer fees, the consent judgment mandates that Lithia pay
restitution to customers who can establish they have suffered an
ascertainable loss of money or property as a result of Lithias
failure to comply with the disclosure requirements of AS
45.25.465 and AS 45.25.470.
Five days after the state filed the consent judgment,
the consumers filed their second class action lawsuit based on
various Lithia dealerships practice of charging dealer fees not
included in the advertised price of the vehicle in violation of
AS 45.25.440.1 On the same day, the consumers moved to intervene
in the consent judgment proceeding.
The superior court denied the motion to intervene in
February 2007. In its order, however, the court required the
state and Lithia to create a modified consent judgment that
included notice to Lithia customers and a right to opt out of the
settlement. The court emphasized that customers who opt out of
the consent judgment could pursue separate recovery and that the
proposed intervenors could file an amicus brief to assist the
court in reviewing the consent judgment.
The consumers appealed the superior court decision
denying their motion to intervene. Nonetheless, they continued
to participate in the superior court proceeding by filing an
amicus brief regarding the merits of the consent judgment. After
the state added the required opt out provision, the superior
court approved the modified consent judgment in April 2007.
In May 2007 the consumers sent Lithia notice that they
wished to opt out of the consent judgment. Nonetheless, the
consumers continued to participate in the trial court proceeding
by filing a motion to stay the enforcement of the consent
judgment pending our decision in this appeal. In the meantime,
however, Lithia and the state began the process of notifying
consumers of the settlement terms and opportunity to opt out.
They sent a notice of settlement to all consumers who had
purchased a vehicle from an Alaska Lithia dealership since
October 1, 2002.
The superior court denied the consumers motion for a
stay. The consumers then filed a motion for a stay with this
court. We granted the motion and stayed the consent decree of
the superior court pending resolution of this appeal.
III. STANDARD OF REVIEW
We review the denial of a timely motion to intervene as
of right using our independent judgment.2 We review the denial
of a motion for permissive intervention using the abuse of
discretion standard.3
IV. DISCUSSION
On appeal the consumers argue that they have an
absolute right to intervene and alternatively that they should
have been permitted to intervene. The state responds that the
consumers cannot meet the test for intervention as of right nor
the requirements for permissive intervention. Lithia agrees with
the state that the consumers should not be permitted to
intervene.
A. The Superior Court Correctly Concluded that the
Consumers Did Not Meet the Alaska Civil Rule 24(a)
Standard for Intervention as of Right.
Alaska Civil Rule 24(a) governs intervention as of
right. It provides:
Upon timely application anyone shall be
permitted to intervene in an action when the
applicant claims an interest relating to the
property or transaction which is the subject
of the action and the applicant is so
situated that the disposition of the action
may as a practical matter impair or impede
the applicants ability to protect that
interest, unless the applicants interest is
adequately represented by existing parties.
We will liberally construe this rule.4 As we have stated, Civil
Rule 24(a) contains a four-part test for intervention:
(1) the motion must be timely; (2) the
applicant must show an interest in the
subject matter of the action; (3) the
applicant must show that this interest may be
impaired as a consequence of the action; and
(4) the applicant must show that the interest
is not adequately represented by an existing
party.[5]
Although the consumers meet the first element of this
test, they fail to establish that they satisfy the second and
third elements.
1. The motion to intervene was timely.
We will not hold that a motion to intervene is untimely
if no party raises timeliness as an issue.6 Neither Lithia nor
the state argue that the motion to intervene was untimely. Thus,
we accept the motion as timely.
2. The consumers do not possess a valid interest in
the property or transaction that is the subject of
the action.
The consumers argue that their interest is sufficient
to justify intervention as a matter of right. They provide six
reasons to support their position that they have an adequate
interest: (1) they were involved in the motor vehicle
transactions at the root of the lawsuit; (2) they are the ones
who have sustained a financial loss; (3) they are the intended
beneficiaries of the motor vehicle and consumer protection
statutes; (4) they are litigants in a pending class action
lawsuit concerning the same violations at issue in the consent
judgment; (5) the consent judgment does not include the consumer
remedies and protections that they are seeking in the class
action; and (6) their due process rights were violated because
the states opt out notice did not provide sufficient information
for a reasoned decision whether to opt out.
The state and Lithia both respond that the consumers
cannot demonstrate an interest in the consent judgment because
they have opted out of the action in order to pursue their own
class action lawsuit. The consumers reply that they had standing
to intervene when they moved to intervene because they had not
successfully opted out, and, regardless, the opt out provision
did not impair their standing to intervene because the state
lacked the authority to resolve their claims. The consumers also
assert in their reply that they are entitled to intervene because
the consent judgment is prejudicial to their rights in their
separate class action, as it has res judicata effects on the
class action.
In order to satisfy the interest element of the
intervention standard, the consumers interest in the State v.
Lithia action must be direct, substantial, and significantly
protectable. 7 Not everyone affected by a lawsuit is entitled
to intervene. As we stated in Anchorage Baptist Temple v.
Coonrod, [t]hose affected, even negatively, by a lawsuit may be
significantly more numerous than those who are entitled to
intervene, and an indirect financial interest, standing alone, is
insufficient to secure intervenor status.8 In Alaskans for a
Common Language, Inc. v. Kritz,9 we emphasized that there is an
enhanced intervention standard in cases involving a governments
sovereign power: Generally when the government exercises its
sovereign power to enforce and defend duly enacted laws, no other
entity can have an interest sufficient to satisfy Civil Rule
24(a).10
Although the consumers have claims identical to those
settled by the consent decree, they could not possess adequate
interests to satisfy this requirement if the attorney general
exercise[d] its sovereign power to enforce and defend duly
enacted [consumer protection] laws in investigating Lithias
violations and reaching a settlement agreement with Lithia.11
When the government exercises such powers, no other entity can
have an interest sufficient to satisfy Civil Rule 24(a).12
Here, the attorney general exercised the states
sovereign power under the Unfair Trade Practices and Consumer
Protection Act. Alaska Statute 45.50.501 provides:
(a) When the attorney general has reason to
believe that a person has used, is using, or
is about to use an act or practice declared
unlawful in AS 45.50.471, and that
proceedings would be in the public interest,
the attorney general may bring an action in
the name of the state against the person to
restrain by injunction the use of the act or
practice . . . .
(b) The court may make additional orders or
judgments that are necessary to restore to
any person in interest any money or property,
real or personal, which may have been
acquired by means of an act or practice
declared to be unlawful by AS 45.50.471.
The attorney generals authority to bring an action to restrain
Lithias use of unlawful practices, along with the superior courts
power in such an action to make additional orders or judgments
to restore used car purchasers rights, extinguished any
intervention interest the consumers may have held.
Federal cases involving attempts to opt out of class
actions support the conclusion that the consumers do not have an
adequate interest here. In In re Lorazepam & Clorazepate
Antitrust Litigation,13 the United States District Court for the
District of Columbia denied intervention in a private antitrust
class action settlement partly because the parties who wished to
intervene could still opt out and preserve their rights to pursue
their own claims independently.14 In In re Vitamins Antitrust
Class Actions,15 the United States Court of Appeals for the
District of Columbia affirmed the trial courts denial of a motion
to intervene filed by presumptive class members who had opted out
of a class settlement concerning price-fixing by vitamin
manufacturers because class members who opted out of the class
settlement had no standing to object to it.16 Similarly, in
Mayfield v. Barr,17 the District of Columbia Court of Appeals held
that appellants who chose to opt out of a class action employment
discrimination case and preserve their right to litigate their
claims independently lacked standing to challenge an order
approving a class settlement agreement.18 The court explained,
[o]ur decision rests on the principle that those who fully
preserve their legal rights cannot challenge an order approving
an agreement resolving the legal rights of others.19 Generally,
federal courts hold that a party that has opted out of a class
settlement may not intervene unless the party suffers some actual
prejudice from the settlement, such as being stripped of a legal
claim or cause of action.20
Here, the consumers forfeited any potential remaining
interest in the consent judgment when they opted out of the
consent judgment approximately six months after it was filed, and
three months after the superior court denied their motion to
intervene. The consumers who opted out fully preserved their
statutory right to pursue their separate claims in their private
class action suit. Thus, they may not be parties to the consent
judgment, which only resolves the rights of Lithia customers who
choose not to opt out. Although the consumers insist that
the consent judgment could have res judicata effects on their
separate class action claims, in actuality it will not have such
effects. As we explained in Sengupta v. University of Alaska,21
the doctrine of res judicata provides that a judgment in a prior
action will bar a subsequent action if the prior judgment was (1)
a final judgment on the merits, (2) from a court of competent
jurisdiction, (3) in a dispute between the same parties (or their
privies) about the same cause of action.22 The consent judgment
does not involve the consumers who have opted out, and it does
not cover their private causes of action against Lithia, so res
judicata would not preclude the consumers from litigating their
claims against Lithia in their separate case.
In sum, because the attorney general exercised the
sovereign authority to enforce state consumer protection laws,
and because the consumers have opted out of the consent judgment,
the consumers lack a valid intervention interest.
3. The consumers alleged interest in the property or
transaction was not impaired.
The consumers lack of a valid intervention interest is
a sufficient basis on which to uphold the superior courts denial
of intervention as of right. Nonetheless, we consider whether
they have met the third test for intervention showing that their
interest was impaired23 and conclude that they have not, as
further support for our conclusion that the consumers have not
satisfied the requirements for intervention as of right.
The consumers make three basic arguments to show that
their interest has been impaired: (1) the consent judgment waives
the recovery of certain remedies; (2) the consent judgments opt
out provision violates their right to due process; and (3) the
consent judgment uses an overly restrictive interpretation of AS
45.25.440 and excludes recovery for violation of AS
45.25.465(a)(2). Because none of these arguments reveal an
impairment of interest, the consumers fail to satisfy this
requirement for intervention as of right.
a. By opting out, the consumers maintained the
right to seek their desired remedies.
The consumers argue that their interest was impaired
because the consent judgment waives recovery of the remedies
provided under AS 45.50.531 and AS 45.50.537. They provide the
following list of the remedies allegedly waived by the consent
judgment: treble damages, common law damages, punitive damages,
costs and attorneys fees, judicial forum, discovery, and
prejudgment interest. The state responds that the consent
judgment does not prevent the consumers from pursuing these
various remedies because they can simply opt out (as they have)
to protect their interest.
Although the consumers may be correct that under the
consent judgment they would not obtain the various remedies that
they list, they can still pursue these remedies through their
private class action because they have opted out. Nothing in the
consent judgment or opt out notice precludes the consumers from
seeking any desired remedies in their separate class action.
Thus, their argument that their interest is impaired because the
consent judgment does not include these remedies is unpersuasive.
b. The consent judgment does not violate the
consumers right to due process.
The consumers argue that the consent judgment violates
their due process rights because the opt out notice does not
provide them with sufficient information to decide whether to opt
out.
Although we have not previously addressed the adequacy
of an opt out notice in a consent judgment proceeding, we look to
our rules governing class actions to determine the sufficiency of
notice here.24 Civil Rule 23(c)(2) provides, inter alia, that
notice for a class action suit shall advise each member that (A)
the court will exclude the member from the class if the member so
requests by a specified date; [and] (B) the judgment, whether
favorable or not, will include all members who do not request
exclusion . . . .25 Because we apply Civil Rule 23 to procedural
aspects of representative cases like this one,26 the Civil Rule
23(c)(2) notice standard applies here. Civil Rule 23(e),
governing settlement notices for class actions, also applies
here. This rule simply states that the notice of the proposed
compromise shall be given to all members of this class in such a
manner as the court directs. We have held that Civil Rule 23(e)
notices are sufficient if they inform the class members of the
nature of the pending action, the general terms of the
settlement, that complete and detailed information is available
from the court files, and that any class member may appear and be
heard at the hearing.27
The opt out provision reads as follows:
Right to Opt Out of the Settlement
All persons who purchased a vehicle from
any Alaska Lithia dealership since October 1,
2002, are subject to the terms of this
settlement and will be bound by it, unless
you choose to opt out, as described below.
If you decide to participate in the
settlement, you will waive any legal rights
and remedies that you may have that are the
subject of the Consent Judgment. If you do
not wish to participate in this settlement
and be bound by its terms, you have a right
to opt out. If you opt out, there may be
other legal rights and remedies available to
you, so you may wish to consult with an
attorney before deciding whether to opt out.
If you do not want to participate in the
settlement and choose to opt out, you may do
so by sending the enclosed Opt Out Form to
the address provided on the form. Your Opt
Out Form, or a letter containing
substantially the same information, must be
postmarked no later than August 2, 2007. Opt
Out Forms that are postmarked after the above
date will not be effective. IF YOU DO NOT
OPT OUT OF THE SETTLEMENT, THEN YOU WILL BE
BOUND BY THE TERMS OF THE CONSENT JUDGMENT[.]
If you wish to review the court file in
State of Alaska v. Lithia, 3AN-06-13238 CI,
you may do so at the Anchorage Superior
Court, 825 West 4th Avenue. You can also
contact Assistant Attorney General Clyde E.
Sniffen, Jr. at the Alaska Attorney Generals
Office, 269-5200 (1-888-576-2526 outside
Anchorage) with any questions.
This opt out notice meets the Civil Rule 23(c)(2)
standard for adequate notice because it notifies each member that
the court will exclude the member from the class if the member
requests exclusion by a particular date and that the judgment
will include any member who does not opt out. The notice also
meets the requirements of Civil Rule 23(e) because it informs
class members of the nature of the action, the general terms of
the settlement, that more information is available in court
files, and that a class member may appear and be heard at the
hearing. In addition, the notice goes beyond the requirements of
Civil Rules 23(c)(2) and (e) when it recommends consulting with
an attorney to determine if participation in the settlement is
the best option because the consumer may be forfeiting legal
rights and remedies. Finally, contrary to Neeses argument, there
is no requirement that the notice state whether each individual
consumer qualifies for recovery or that the notice explain which
rights or remedies the consumer forfeits by participating in the
settlement.
Because the consent judgments opt out notice meets the
requirements of Civil Rules 23(c)(2) and (e), and even provided
more information than necessary to comply with Alaska law in this
regard, it did not violate the consumers due process rights.
c. The consent judgments interpretation of AS
45.25.440 and the absence of a provision for
customers harmed by Lithias violation of AS
45.25.465(a)(2) do not impair the consumers
interest.
The consumers argue that the consent judgment impairs
their interest by construing AS 45.25.440 to allow recovery of
dealer fees only when consumers paid separate dealer fees in
addition to the full advertised price of the vehicle, excluding
consumers who paid dealer fees but also negotiated for a vehicle
price below the advertised price. The consumers also argue that
the consent judgment impairs their interest because it excludes
recovery for consumers harmed by Lithias violation of AS
45.25.465(a)(2), which requires dealers to disclose to purchasers
that their used vehicles had been acquired from another motor
vehicle dealer, a wholesaler, or at auction.
Alaska Statute 45.25.440(a) provides: When selling a
motor vehicle, a motor vehicle dealer may not charge dealer fees
or costs, except for fees actually paid to a state agency for
licensing, registration, or title transfers, unless the fees or
costs are included in the advertised price. There is no case law
interpreting this provision. Regardless of the proper
interpretation, however, the consumers have opted out, so they
can still argue in favor of their interpretation of AS
45.25.440(a) in their private class action. Thus, the consent
judgments interpretation of the provision does not impair the
consumers interest.
The consumers argument that their interest is impaired
because the consent judgment does not include claims for
violations of AS 45.25.465(a)(2) which requires dealers to
disclose to purchasers that their used vehicles had been
purchased from another motor vehicle dealer, a wholesaler, or at
auction is similarly misplaced. Because the consent judgment
does not cover this type of claim, consumers are free to pursue
such a claim in their private class action.
In sum, the consumers have not shown sufficient
impairment of their alleged interests to satisfy this requirement
of the intervention test.
B. The Superior Court Did Not Abuse its Discretion in
Denying Permissive Intervention Under Civil Rule 24(b).
The superior court denied permissive intervention,
concluding that even though the proposed intervenors assert
issues of law and fact identical to those raised by the state and
Lithia, allowing intervention would unnecessarily delay the
resolution of this action, which will occur upon approval of the
Consent Judgment. The court emphasized that the undue delay
would negatively affect the Lithia customers represented by the
state who are not part of the consumer class because those
customers would be forced to wait even longer for the refunds due
to them.
The consumers argue that the superior court abused its
discretion by denying permissive intervention because their class
action and the consent judgment action share common questions of
law and fact, and allowing intervention would not result in
prejudice or unnecessary delay to other parties.
Civil Rule 24(b) provides that [u]pon timely
application anyone may be permitted to intervene in an action
when an applicants claim or defense and the main action have a
question of law or fact in common. . . . In exercising its
discretion the court shall consider whether the intervention will
unduly delay or prejudice the adjudication of the rights of the
original parties. We review a denial of a motion for permissive
intervention for abuse of discretion.28 In Keane v. Local
Boundary Commission,29 we stated that additional parties are . .
. the source of additional questions, briefs, objections,
arguments and motions; where no new issues are presented, it is
most effective to allow participation by a brief amicus curiae
rather than by intervention.30
There is no question that the consumers claims have
questions of law and fact in common with the consent judgment.
The claims involve the same used vehicle purchases that are
involved in the consent judgment, and the consumers allege the
same violations of state consumer protection laws that are the
basis for the consent judgment. Thus, they easily meet the first
prong of the permissive intervention test.
Nonetheless, the consumers must also show that the
superior court abused its discretion in concluding that
intervention would unnecessarily delay the consent judgment
proceeding and prejudice the state, Lithia, and other Lithia
customers who do not wish to opt out. Allowing intervention by
the consumers would undoubtedly delay execution of the consent
judgment and thereby prejudice those vehicle purchasers who wish
to pursue their remedies through the consent judgment. As
recommended in Keane,31 the superior court invited the consumers
to file an amicus brief to assist the court in reviewing the
proposed consent judgment. The consumers filed a forty-page
amicus brief, which the court considered before approving the
consent judgment. Allowing any further involvement of the
consumers who have opted out would cause further delay in
providing relief to those Lithia customers who wish to remain as
parties to the consent judgment rather than participating in the
class action. Thus, the superior courts decision to deny the
consumers permissive intervention and allow them to participate
as amicus curiae was within its discretion.
V. CONCLUSION
Because the consumers fail to satisfy the requirements
for intervention as of right and because the superior court did
not abuse its discretion in denying permissive intervention, we
AFFIRM the superior courts decision to deny intervention.
_______________________________
1 The two class action lawsuits were consolidated in May
2007.
2 Anchorage Baptist Temple v. Coonrod, 166 P.3d 29, 32
(Alaska 2007).
3 McCormick v. Smith, 793 P.2d 1042, 1044 n.3 (Alaska
1990).
4 Coonrod, 166 P.3d at 32-33 (quoting Alaskans for a
Common Language, Inc. v. Kritz, 3 P.3d 906, 912 (Alaska 2000)).
5 Id. at 33 (quoting Kritz, 3 P.3d at 911).
6 Id.
7 Id. (quoting State v. Weidner, 684 P.2d 103, 113
(Alaska 1984)).
8 Id. at 33.
9 3 P.3d 906 (Alaska 2000).
10 Id. at 912.
11 See id.
12 Id.
13 205 F.R.D. 363 (D.D.C. 2001).
14 Id. at 367.
15 215 F.3d 26 (D.C. Cir. 2000).
16 Id. at 28-29.
17 985 F.2d 1090 (D.C. Cir. 1993).
18 Id. at 1092-93.
19 Id. at 1093. Other federal courts of appeal have come
to the same conclusion. See, e.g., In re Integra Realty Res.,
Inc., 262 F.3d 1089, 1102-03 (10th Cir. 2001).
20 Integra Realty Res., 262 F.3d at 1102-04; Mayfield, 985
F.2d at 1093.
21 21 P.3d 1240 (Alaska 2001).
22 Id. at 1251.
23 Anchorage Baptist Temple v. Coonrod, 166 P.3d 29, 32-33
(Alaska 2007).
24 See State v. First Natl Bank of Anchorage, 660 P.2d
406, 416 (Alaska 1982) (explaining in case in which state acted
in representative capacity against a private entity that guidance
as to the procedural aspects of a case such as this may be found
in our own rule governing the maintenance of representative
actions, Civil Rule 23).
25 A third requirement of Civil Rule 23(c)(2), set out in
subsection (C), is that the notice advise each class member that
any member who does not request exclusion may, if the member
desires, enter an appearance through his counsel. This
subsection, because it is not essential to fair notice, is not
applicable in this case. See First Natl Bank, 660 P.2d at 417.
26 Id.
27 Weiss v. State, 939 P.2d 380, 400 (Alaska 1997)
(quoting 2 Herbert B. Newberg & Alba Conte, Newberg on Class
Actions 8.32 (3d ed. 1992) (footnotes omitted)).
28 State v. Enserch Alaska Const., Inc., 787 P.2d 624, 629
(Alaska 1989).
29 893 P.2d 1239 (Alaska 1995).
30 Id. at 1250 (quoting State v. Weidner, 684 P.2d 103,
114 (Alaska 1984)).
31 893 P.2d at 1250.
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