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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pepper v. Routh Crabtree, APC (11/20/2009) sp-6437
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
| ROBIN L. PEPPER, | ) |
| ) Supreme Court No. S- 13042 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-8568 CI | |
| v. | ) |
| ) O P I N I O N | |
| ROUTH CRABTREE, APC; | ) |
| RICHARD L. CRABTREE; and | ) No. 6437 November 20, 2009 |
| CRI, LLC a/k/a CHECKRITE | ) |
| OF ANCHORAGE, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court, Third
Judicial District at Anchorage, Mark Rindner,
Judge.
Appearances: James J. Davis, Jr., Alaska
Legal Services Corporation, Anchorage, and
Deepak Gupta, Public Citizen Litigation
Group, Washington, D.C., for Appellant.
Richard L. Crabtree and Ryan W. Fitzpatrick,
Routh Crabtree, APC, Anchorage, for
Appellees. Joanne S. Faulkner, National
Association of Consumer Advocates, New Haven,
Connecticut, Charles Delbaum, National
Consumer Law Center, Boston, Massachusetts,
and Thomas M. Daniel, Perkins Coie, LLP,
Anchorage, for Amici Curiae.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Robin Pepper sued an Anchorage debt collection agency
and its lawyers, claiming that they violated Alaskas Unfair Trade
Practices and Consumer Protection Act (UTPA) when they: (1) sued
Pepper in state district court without first sending a written
demand, (2) misrepresented to the court that Pepper was
competent, and (3) applied for default judgment without first
informing Peppers attorney. The superior court granted the
defendants motion to dismiss for failure to state a claim,
reasoning that the Noerr-Pennington doctrine required the court
to strictly construe the UTPA to avoid burdening conduct
protected by the petition clauses of the United States and Alaska
Constitutions. Because we conclude that it would not
unconstitutionally burden the defendants petitioning activities
to require them to litigate debt collection claims in a fair
manner, we reverse the dismissal of Peppers complaint.
II. FACTS AND PROCEEDINGS
In February and June 2004 Robin Pepper allegedly wrote
fifteen checks on which payment was later refused.1 The affected
merchants assigned the dishonored checks, which totaled $518.80,
to CRI, LLC (Checkrite) for collection. Checkrite retained
attorney Richard Crabtree and his law firm, Routh Crabtree, APC,
to recover the amount owed on the checks.
In October 2006 Routh Crabtree mailed to Pepper a
demand letter on behalf of its client in an attempt to recover
the amount owed on the dishonored checks. Routh Crabtree mailed
the letter to 601 E. 5th Avenue in Anchorage; that address did
not match the one on Peppers dishonored checks, was not an
address at which Pepper had ever lived, and did not correspond to
any actual building.
In December 2006 Checkrite sued Pepper in state
district court, alleging that she had not tendered the amount
owed.2 On April 14, 2007, Pepper was personally served with a
summons and notice of judicial assignment. By letter of April
25, an attorney from Alaska Legal Services Corporation (ALSC)
notified Routh Crabtree that ALSC was representing Pepper. The
letter claimed that Checkrite had failed to effectuate service on
Pepper and stated that ALSC would not file an answer until proper
service was made.
Without notifying ALSC, Checkrite applied on May 30,
2007 for entry of default and default judgment against Pepper,
claiming that [t]he time within which [Pepper] could plead in or
otherwise defend this action has expired. Checkrites application
stated that, [u]pon information and belief, based on the Defense
Manpower Data Center search certificate . . . [Pepper] is not an
infant, incompetent, nor a member of the Armed Forces of the
United States protected by the Civil Relief Act.3 The clerk of
court entered default against Pepper on June 11, 2007.
On July 16, 2007, Checkrite, through Routh Crabtree,
withdrew its application for default judgment on the ground an
ALSC attorney had communicated to the undersigned his intent to
represent the defendant in the instant case.
Also on July 16, Pepper sued Routh Crabtree, Richard
Crabtree, and CRI, LLC in superior court, alleging multiple
instances of unfair or deceptive acts or practices in violation
of the UTPA.4 Peppers complaint alleged that: (1) the written
demand was not made in accordance with AS 09.68.115, which
requires that the demand be personally delivered or sent by first
class mail to the address shown on the dishonored check;5 (2)
Pepper is mentally disabled, and the defendants swore out a false
averment to the court by stating that Pepper was not incompetent;
and (3) the attorney defendants, Routh Crabtree and Richard
Crabtree, violated Alaska law that required them to notify
Peppers attorney before applying for entry of default judgment
against her.6
The three defendants, represented by Routh Crabtree,
moved to dismiss Peppers suit under Alaska Civil Rule 12(b)(6)
for failure to state a claim upon which relief could be granted.
Treating Peppers factual allegations as admitted for the purpose
of the motion to dismiss, Routh Crabtree argued that Peppers
claims impermissibly sought to impose civil liability on the
defendants for exercising their constitutional right to petition
the government.7
The superior court reasoned that Routh Crabtrees
litigation activities constitute conduct clearly protected by the
petition clauses of the United States and Alaska Constitutions.
It then held that the Noerr-Pennington doctrine required the
court to construe the UTPA so as to avoid burdening such conduct,
unless the UTPA clearly covers the specific conduct at issue.8
Because it concluded that the UTPA did not clearly provide that
Defendants[] alleged activities violate[d] that statute, the
court granted Routh Crabtrees motion and dismissed Peppers
complaint with prejudice as to all three defendants.
Pepper appeals.
III. DISCUSSION
A. Standard of Review
We review de novo an order dismissing a complaint on
the basis of Civil Rule 12(b)(6) for failure to state a claim
upon which relief can be granted.9 When reviewing an order on a
motion to dismiss, we deem all facts in the complaint to be true
and provable.10 We will affirm a superior courts grant of a
motion to dismiss only if it appears beyond doubt that the
plaintiff can prove no set of facts that would entitle her to
relief.11
We review questions of statutory and constitutional
construction de novo, adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.12
B. Whether It Was Error To Hold that Routh Crabtrees
Conduct Was Entitled to Noerr-Pennington Immunity
Pepper argues that the UTPA covers unfair and deceptive
debt-collection practices that occur in the context of litigation
and contends that neither Noerr-Pennington, nor the petition
clause on which that doctrine was based, immunizes these
practices. Routh Crabtree responds that the superior court
properly dismissed the complaint based on the protection afforded
by the Petition Clause[s] of the U.S. and Alaska constitutions.
Routh Crabtree argued below that both constitutions
protected its right to petition, and the superior court so held.
Nevertheless, because we have never meaningfully addressed the
state petition clause and have never implied that it is more
protective than the federal clause, we will assume that the
relatively sophisticated federal authority on the topic controls
in this case.
The Noerr-Pennington doctrine initially evolved out of
two Supreme Court antitrust cases: Eastern Railroad Presidents
Conference v. Noerr Motor Freight, Inc.13 and United Mine Workers
v. Pennington.14 The Court established in those cases that
parties could not base a Sherman Act conspiracy on evidence
consisting entirely of activities of competitors seeking to
influence public officials.15 The Court held in Noerr that the
Sherman Act was not intended to prohibit persons from associating
in an attempt to persuade the legislature or the executive to
take particular action with respect to a law, notwithstanding
whether the attempt was motivated by an anticompetitive purpose.16
The Court reasoned that [t]he right of petition is one of the
freedoms protected by the Bill of Rights, and we cannot, of
course, lightly impute to Congress an intent to invade these
freedoms.17
The Court later extended the Noerr-Pennington doctrine
to include attempts to influence adjudicatory proceedings before
administrative agencies and courts.18 And by analogizing to Noerr-
Pennington, the Court has twice applied petition-clause immunity
outside the antitrust arena, both times in cases involving the
interpretation of the National Labor Relations Act (NLRA).19 The
Court held in those cases that [t]he filing and prosecution of a
well-founded lawsuit may not be enjoined as an unfair labor
practice, even if [the lawsuit] would not have been commenced but
for the plaintiffs desire to retaliate against the defendant for
exercising rights protected by the [NLRA].20
The United States Court of Appeals for the Ninth
Circuit has interpreted the Supreme Courts decisions as
establishing that the principles of statutory construction
embodied in the Noerr-Pennington doctrine apply with full force
in other statutory contexts.21 In Sosa v. DIRECTV, the Ninth
Circuit therefore recognized that those who petition any
department of the government for redress are generally immune
from statutory liability for their petitioning conduct.22 DIRECTV
had sent demand letters to over 100,000 individuals, falsely
asserting that its records showed the recipients had used
specialized equipment to steal its signal.23 DIRECTVs demand
letters threatened legal action unless the recipient forfeited
the equipment and paid a sum of money to settle the claim.24 Sosa
sued DIRECTV for violating the Racketeer Influenced and Corrupt
Organizations Act (RICO).25 The district court dismissed Sosas
complaint.26
On appeal, the Ninth Circuit reasoned that the Noerr-
Pennington doctrine stands for a generic rule of statutory
construction, applicable to any statutory interpretation that
could implicate the rights protected by the Petition Clause.27
Refining the methodology the Supreme Court used in BE & K
Construction Co. v. National Labor Relations Board,28 the Ninth
Circuit reasoned that determining whether Noerr-Pennington
immunity applies in any given case involves a three-step
analysis.29 Under the Sosa approach, the court must first
determine whether the threat of adverse adjudication burdens the
defendants petitioning rights.30 If it does, the court must
proceed to the second step of the analysis and determine whether
the burden identified may be imposed consistently with the
Constitution.31 If there is a substantial question that it may
not be imposed consistently with the constitution, then the court
must proceed to the third and final step to determine whether the
statute can be construed to avoid burdening the petitioning
activity.32 The Ninth Circuit held that Sosas claims were
properly dismissed because Noerr-Pennington required the court to
construe RICO narrowly to avoid burdening activity arguably
falling within the scope of the petition clause.33
In arguing below that the Noerr-Pennington doctrine
immunized the defendants from a lawsuit alleging violations of
Alaskas UTPA, Routh Crabtree principally relied on the Ninth
Circuits expansive interpretation of that doctrine. The superior
court appears to have relied on Sosa in dismissing Peppers
action. It stated that Routh Crabtrees activities constitute
conduct clearly protected by the Petition Clauses. Therefore,
[u]nder the Noerr-Pennington doctrine, the court must construe
Alaskas UTPA to avoid burdening conduct that implicates
protections afforded by the Petition Clause unless the statute
clearly provides otherwise.
Although we agree that the three-step Sosa analysis
provides a convenient approach for considering whether Noerr-
Pennington applies in a given case, we conclude that the analysis
was not applied correctly in this case.
The first step of the Sosa analysis requires courts to
identify what burden the threat of adverse adjudication would
impose on the defendants petitioning rights. In BE & K, the
Supreme Court recognized that to find that an employer had
violated the NLRA by filing unmeritorious suits against unions
would be a burden by itself, considering the legal consequences
and reputational harm that would flow from that determination.34
In Sosa, the Ninth Circuit concluded that to apply RICO liability
against DIRECTV would quite plainly burden DIRECTVs ability to
settle legal claims short of filing a lawsuit.35
For purposes of applying the three-step Sosa analysis,
we assume, without deciding, that if Pepper were to prevail on
her UTPA claims, Routh Crabtree would suffer the same kind of
burden identified in BE & K because, under the UTPA, Routh
Crabtree would owe Pepper costs, attorneys fees, and the greater
of $500 or three times her actual damages.36 Routh Crabtrees
petitioning activity might also be burdened in the sense that
Routh Crabtree could not engage in conduct that might increase
its ability to secure favorable judgments for its clients. In
this respect, we will assume, without deciding, that a successful
claim by Pepper conceivably might burden Routh Crabtrees ability
to obtain favorable judgments if the debtor were to fail to
answer or appear on time.
The second step of the Sosa analysis requires courts to
determine whether the potential burden can be imposed
consistently with the constitution. It is on this point that
Routh Crabtrees immunity argument fails. Even assuming Routh
Crabtree would be somewhat burdened if Peppers claims are
successful, it is difficult to see how subjecting Routh Crabtree
to UTPA liability for engaging in the conduct alleged here would
chill its First Amendment right to petition the government for
redress. Pepper is not challenging Routh Crabtrees rights to
send pre-litigation demand letters, file suit to collect overdue
money, seek default judgment against defendants who fail to
appear or answer on time, or litigate its claims fully,
consistent with well-known procedural, substantive, and ethical
requirements. Her complaint only seeks to hold Routh Crabtree to
account if the manner in which it allegedly undertook these
activities was unfair, deceptive, and in violation of the UTPA.
Allowing Pepper to pursue her UTPA claims may create additional
incentives for Routh Crabtree to ensure that a compliant demand
has been made, to ascertain the truth of its competency
allegations, and to inform the debtors known counsel of Routh
Crabtrees intention to seek default judgment. Routh Crabtree has
not persuasively demonstrated that Peppers UTPA claims will, if
successful, unduly restrict Routh Crabtrees right to petition the
government for redress of grievances. Peppers claims would
appear to burden Routh Crabtrees petitioning activities no more
than our rules of professional conduct or standards of practice
already do. As Pepper contends, no debt collector has a
legitimate interest in pursuing collection litigation without
notifying debtors, or in seeking to default incompetent debtors
without notice to their lawyers or guardians.
Moreover, courts applying the federal counterpart of
the UTPA, the Fair Debt Collection Practices Act (FDCPA), have
not held that applying this statute to state court pleadings
would burden petitioning rights. For example, in Berg v. Blatt,
the United States District Court for the Northern District of
Illinois declined to rely on the Noerr-Pennington doctrine to
protect false representations in debt-collection complaints
because it was not persuaded that imposing FDCPA standards of
accuracy and fairness on a state court filing constitutes any
genuine burden.37 The court held that the FDCPA explicitly bars
exactly this kind of speech in debt collection letters and other
communications and extending this bar to state court filings does
not run afoul of the Noerr-Pennington doctrines goal of
protecting the First Amendment right to petition the courts for
redress.38
We conclude that Peppers UTPA claims do not implicate
the defendants petition clause rights and that any burden that
might result if Peppers lawsuit is successful may be imposed on
the defendants consistently with the federal and state
constitutions. In light of this conclusion, we do not need to
reach the third step of the Sosa analysis. We hold that it was
error to dismiss Peppers claims on Noerr-Pennington grounds.39
C. Whether We Should Uphold the Superior Courts Decision
on Alternative Grounds
Routh Crabtree also argues that the superior courts
decision may be upheld on four alternative grounds. Routh
Crabtree raised only one of these arguments in the superior
court, which rejected the argument.40 Routh Crabtree does not
develop these arguments extensively. Although the arguments are
ostensibly supported with case authority, on close examination
that authority is either not on point or unpersuasive.
First, Routh Crabtree argues that any alleged
violations are exempt from UTPA regulation under AS
45.50.481(a)(1) because they are already prohibited by the Alaska
Rules of Civil Procedure and the Alaska Rules of Professional
Conduct.41 This court explained in Smallwood v. Central Peninsula
General Hospital that AS 45.50.481(a)(1) exempts unfair acts and
practices from the purview of the UTPA only where [(1)] the
business is both regulated elsewhere and [(2)] the unfair acts
and practices are therein prohibited. 42 We have held that the
Rules of Civil Procedure and the Rules of Professional Conduct
are not the type of ongoing, careful regulation required to
trigger an exemption under subsection .481(a)(1).43 Even if they
were, it is unlikely Routh Crabtree could show that the unfair
acts alleged in this case were prohibited by such regulation.44
Second, Routh Crabtree argues that applying the UTPA to
a lawyers representational activities would be an
unconstitutional infringement upon the exclusive jurisdiction of
the court to regulate the practice of law. Routh Crabtree
contends that only the entrepreneurial aspects of lawyering, such
as billing clients, should be subject to the UTPA. Routh
Crabtree cites for support Short v. Demopolis, a Washington
Supreme Court decision in which the court considered whether,
under the states Consumer Protection Act, a former client had a
claim against a lawyer who delegated legal services to other
attorneys without the clients consent.45 But that court concluded
that application of the act did not trench upon the
constitutional powers of the court to regulate the practice of
law because it did not purport to take away the courts power to
admit, suspend, or disbar.46 It favorably cited a Connecticut
Supreme Court case that recognized both that the judicial
disciplinary system and consumer protection laws have different
functions and that there was no reason why they cannot coexist.47
We conclude, as the Washington Supreme Court held in
Short, that the attorney disciplinary system and consumer
protection laws can coexist as long as the legislature does not
purport to take away this courts exclusive power to admit,
suspend, discipline, or disbar.
Third, Routh Crabtree argues that this court should
join the growing body of jurisdictions that refuse to apply state
UTPA statutes to a lawyers representational activities. Routh
Crabtree contends that only an attorneys entrepreneurial
activities, such as soliciting or billing clients, should be
subject to the UTPA, and that the activities that relate to the
pure practice of law must be excluded from UTPA coverage.
The United States Supreme Court held in Heintz v.
Jenkins that the federal counterpart to the UTPA applies to
attorneys who regularly engage in consumer-debt-collection
activity, even when that activity consists of litigation.48 We
are likewise unpersuaded that a debt-collecting attorney should
receive a special exemption from UTPA coverage.
Routh Crabtrees argument that attorney liability for
UTPA violations would be inconsistent with an attorneys duty of
undivided loyalty to his or her client is unpersuasive. Rules of
professional conduct often create conflicts between attorneys
ethical obligations and their duties of loyalty and zealous
advocacy. Applying ethical standards to debt-collecting
attorneys does not offend the attorneyclient relationship.
Finally, Routh Crabtree argues that Peppers claim is
not yet ripe for review because claims alleging a misuse of legal
proceedings may not be filed until such litigation has
terminated. Routh Crabtree contends that the ripeness
requirement for cases alleging malicious prosecution should be
applied with equal force in the instant action.
Imposing a termination requirement for malicious
prosecution claims is appropriate because favorable termination
of the offending proceeding is a required element for a malicious
prosecution claim.49 But Routh Crabtrees argument that a similar
termination requirement should apply here is unpersuasive,
because termination of the underlying proceeding in this case is
not necessary to ascertain whether Pepper can prevail on her
claims or whether she has been damaged. Moreover, other courts
permit parties to advance claims under statutes comparable to the
UTPA before the underlying action has terminated.50
We reject these four arguments at least in part because
they are facially unpersuasive as presented.51 We therefore
decline to affirm the superior courts decision on any of these
alternative grounds.
IV. CONCLUSION
Because Peppers claims will not unconstitutionally
burden the defendants petitioning activity, the defendants are
not entitled to immunity under the Noerr-Pennington doctrine. We
therefore REVERSE the superior courts order dismissing Peppers
complaint for failure to state a claim and remand for further
proceedings.
_______________________________
1 This description of the facts is taken from the
pleadings and materials filed by the parties before the superior
court granted the motion to dismiss. We accept all well-pleaded
allegations as factually true and provable. In describing the
facts we are not resolving possible factual disputes. Any
factual disputes will have to be litigated on remand in
accordance with the legal conclusions we reach in this opinion.
2 We assume for purposes of this appeal that Checkrite at
all times acted through Routh Crabtree in prosecuting its claim
against Pepper.
3 Defense Manpower Data Center is an organization of the
Department of Defense that maintains the official database on
eligibility for military medical care and other eligibility
systems.
4 AS 45.50.471.561. Peppers complaint alleged that the
[d]efendants had violated AS 45.50.471(a), which states that
[u]nfair methods of competition and unfair or deceptive acts or
practices in the conduct of trade or commerce are declared to be
unlawful.
Unless context requires greater specificity, we refer
to the three defendants collectively as Routh Crabtree, the first-
named defendant in the caption of Peppers complaint.
5 AS 09.68.115(d)(3).
6 See Brown v. Lange, 21 P.3d 822, 829 (Alaska 2001);
City of Valdez v. Salomon, 637 P.2d 298, 299 (Alaska 1981); Cook
v. Aurora Motors, Inc., 503 P.2d 1046, 1049 n.6 (Alaska 1972);
see also American College of Trial Lawyers, Code of Trial Conduct
Standard No. 13(b) (1994) (When a lawyer knows the identity of a
lawyer representing an opposing party, the lawyer should not take
advantage of the opposing lawyer by causing any default or
dismissal to be entered without first inquiring about the
opposing lawyers intention to proceed.).
7 The First Amendment to the United States Constitution
provides in relevant part that Congress shall make no law
respecting . . . the right of the people peaceably . . . to
petition the Government for a redress of grievances. Article 1,
section 6 of the Alaska Constitution provides in relevant part:
The right of the people peaceably . . . to petition the
government shall never be abridged.
8 Cf. K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d
702, 724 (Alaska 2003) (The Noerr-Pennington doctrine evolved out
of two United States Supreme Court cases in which the Court held
that those who attempt to influence legislative and executive
officials are immune from antitrust liability. The Court later
extended the doctrine to include attempts to influence
adjudicatory proceedings before the courts and administrative
agencies.) (footnotes omitted).
9 Vanek v. State, Bd. of Fisheries, 193 P.3d 283, 286
(Alaska 2008).
10 Id. at 286 (citing Catholic Bishop of N. Alaska v. Does
1-6, 141 P.3d 719, 722 (Alaska 2006)).
11 Valdez Fisheries Dev. Assn, Inc. v. Alyeska Pipeline
Serv. Co., 45 P.3d 657, 664 (Alaska 2002).
12 State v. Dupier, 118 P.3d 1039, 1044 (Alaska 2005).
13 Eastern R.R. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961).
14 United Mine Workers v. Pennington, 381 U.S. 657 (1965).
15 Id. at 669.
16 Noerr, 365 U.S. at 136; see also Pennington, 391 U.S.
at 669.
17 Noerr, 365 U.S. at 138.
18 California Motor Transp. Co. v. Trucking Unlimited, 404
U.S. 508, 510 (1972).
19 BE & K Constr. Co. v. NLRB, 536 U.S. 516, 527 (2002);
Bill Johnsons Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983).
20 Bill Johnsons, 461 U.S. at 743; see also BE & K, 536
U.S. at 527.
21 Sosa v. DIRECTV, 437 F.3d 923, 930 (9th Cir. 2006).
22 Sosa v. DIRECTV, 437 F.3d 923, 929 (9th Cir. 2006)
(citing Empress LLC v. City & County of S.F., 419 F.3d 1052,
1056 (9th Cir. 2005)).
23 Id. at 926-27.
24 Id. at 927.
25 Id.
26 Id.
27 Id. at 931.
28 BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002).
29 Sosa, 437 F.3d at 930 (citing BE & K, 536 U.S. at 525).
30 Id. at 932.
31 Id. This second step essentially asks whether the
alleged conduct was petitioning activity, non-petitioning
activity, or activity incidental to petitioning. See Sosa, 437
F.3d at 933 (In analyzing this question, we must consider whether
the demand letters constitute either protected petitioning
activity or activity [incidental to petitioning].).
32 Id. at 932.
33 Id. at 942.
34 See BE & K, 536 U.S. at 530.
35 Sosa, 437 F.3d at 932.
36 AS 45.50.531(a); AS 45.50.537.
37 Berg v. Blatt, Hasenmiller, Leibsker & Moore, L.L.C.,
No. 07 C 4887, 2009 WL 901011, at *6 (N.D. Ill., March 31, 2009);
see also Gerber v. Citigroup, Inc., 2009 WL 248094, at *5 (E.D.
Cal., Jan. 29, 2009) (To find defendants immunized by the Noerr-
Pennington doctrine would eviscerate the Fair Debt Collection
Practices Act. Debt collectors should not be able to employ
tactics forbidden by the FDCPA simply because they also happen to
be lawyers, or because they are attempting to collect on a debt
owed.); Jordan v. Thomas & Thomas, No. C-1-04-296, 2007 WL
2838474, at *7 (S.D. Ohio, Sept. 26, 2007) (holding that not
applying FDCPA to false statements made to courts would allow
collectors . . . to accomplish through official legal proceedings
the unfair and harassing practices expressly prohibited by the
FDCPA).
38 Berg, 2009 WL 901011, at *6.
39 Pepper also argues that Routh Crabtrees activity is
exempt from Noerr-Pennington immunity under the sham exception.
The United States Supreme Court held in the antitrust context
that activity ostensibly directed toward influencing governmental
action does not qualify for Noerr-Pennington immunity if it is a
mere sham to cover an attempt to interfere directly with the
business relationships of a competitor. Profl Real Estate
Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49,
51 (1993). Because we conclude that the Noerr-Pennington
doctrine does not preclude Peppers UTPA claims, we do not need to
decide whether the sham exception applies in this case.
40 Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska 2001) ([W]e can affirm a grant of summary judgment on
alternative grounds, including grounds not advanced by the lower
court or the parties. Moreover, we will consider any matter
appearing in the record, even if not passed upon by the lower
court, in defense of the judgment.) (emphasis added)); Atcherian
v. State, Dept of Revenue, Child Support Enforcement Div., 14
P.3d 970, 974 n.8 (Alaska 2000); but see Vaska v. State, 135 P.3d
1011, 1019 (Alaska 2006) (declining to affirm on legal theories
raised for first time on appeal and remanding for consideration
by appeals court on those theories).
41 AS 45.50.481(a)(1) states that with limited exceptions
(none of which is relevant here), the UTPA does not apply to
an act or transaction regulated under laws
administered by the state, by a regulatory
board or commission[,] . . . or officer
acting under statutory authority of the state
or of the United States, unless the law
regulating the act or transaction does not
prohibit the practices declared unlawful in
AS 45.50.471.
Routh Crabtree specifically argues that
misrepresentations to the court are prohibited under both Alaska
Civil Rule 11 and Rule 3.3 of the Alaska Rules of Professional
Conduct, and that seeking default judgment without first
notifying the opposing partys counsel is proscribed under Alaska
Civil Rule 55(c).
42 Smallwood v. Cent. Peninsula Gen. Hosp., 151 P.3d 319,
329 (Alaska 2006) (emphasis added) (quoting State v. ONeill
Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980)).
43 See Matanuska Maid, Inc. v. State, 620 P.2d 182, 186
(Alaska 1980) (holding that regulated in the context of
subsection .481(a)(1) is clearly distinct from and involves
something more than mere prohibition and that a more reasonable
construction is that subsection .481(a)(1) exempts only such
conduct as is subject to ongoing, careful regulation).
44 Although Routh Crabtree argues that Civil Rule 55
already prohibits parties from seeking default judgment without
notifying opposing counsel, that rule creates different
procedures depending on whether the non-moving party (or his or
her attorney) appears. Civil Rule 55(c)(1) states that [i]f the
party against whom default judgment is sought has appeared in the
action, that party (or, if appearing by representative, the
partys representative) shall be served with written notice of the
application for judgment at least three days prior to a decision
on the application. (Emphasis added.) If neither Pepper nor her
attorney appeared before Routh Crabtree applied for default
judgment, then its failure to provide notice to Peppers lawyer
did not necessarily contravene Civil Rule 55.
A close reading of Civil Rule 11 and Conduct Rule 3.3
suggests Routh Crabtree would similarly escape reproach for
making misrepresentations to the court if it established that it
performed reasonable inquiry into Peppers competency and did not
know that she was incompetent when it made its statements. Under
Civil Rule 11, an attorneys signature on a pleading, motion, or
other paper certifies only that the attorney has read the paper
and that, to best of the attorneys knowledge, information, and
belief formed after reasonable inquiry, the pleading, motion, or
other paper is well grounded in fact. Conduct Rule 3.3(a)(1)
similarly states only that a lawyer shall not knowingly make a
false statement of material fact or law to a tribunal.
45 Short v. Demopolis, 691 P.2d 163, 163-64 (Wash. 1984)
(en banc).
46 Id. at 169-70.
47 Id. at 170 (citing Heslin v. Conn. Law Clinic of
Trantolo & Trantolo, 461 A.2d 938 (Conn. 1983)).
48 Heintz v. Jenkins, 514 U.S. 291, 299 (1995).
49 Caudle v. Mendel, 994 P.2d 372, 375-76 (Alaska 1999)
(citing Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988)).
50 See, e.g., Heintz, 514 U.S. at 293 (allowing plaintiffs
separate FDCPA action to proceed before termination of banks suit
to recover balance due on plaintiffs car loan).
51 In rejecting these arguments here, we do not mean to
foreclose the possibility that future litigants might address
these issues more persuasively on appeal.
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