BOLGER, Justice.
Robert Rude and Harold Rudolph are shareholders and former directors of Cook Inlet Region, Inc. (CIRI). They distributed a joint proxy solicitation in an attempt to be elected to the CIRI board of directors at CIRI's 2010 annual meeting. Rude and Rudolph accumulated over one quarter of the total outstanding votes, but CIRI's Inspector of Election refused to allow them to cumulate their votes. Thus, their votes were split evenly between the two of them and neither was seated. We conclude that the language of this proxy form required the shareholders' votes to be equally distributed between Rude and Rudolph unless a shareholder indicated otherwise. We therefore affirm the superior court's decision granting summary judgment in favor of CIRI on this issue.
CIRI cross-appeals, arguing that the superior court should have awarded attorney's fees under Alaska Civil Rule 68, as well as sanctions against plaintiffs' counsel under Alaska Civil Rule 11. We conclude that the superior court was not required to order sanctions, but we remand for reconsideration of the attorney's fee award.
CIRI is an organization created under the Alaska Native Claims Settlement Act (ANCSA). CIRI is governed by a 15-member board of directors, with the directors serving staggered three-year terms; five directors are elected every June at the annual meeting. Since 1997, CIRI has rotated its annual meeting between three locations: Anchorage, Kenai, and Puyallup, Washington. The 2010 annual meeting was held in Puyallup. For each election, the board chooses a slate of five recommended candidates for whom it solicits proxies. Rude and Rudolph are CIRI shareholders and former directors. In 2010, neither Rude nor Rudolph was an incumbent director; they distributed a joint proxy statement calling themselves the "R & R Alliance" (R & R).
CIRI's 2010 election was coordinated and supervised by an Inspector of Election. On June 3, 2010, two days before the June 5 annual meeting, CIRI sent a letter to the Inspector, urging him to find that the R & R proxy did not give Rude and Rudolph authority to cumulate the votes they received. Rudolph responded by sending his own letter to the Inspector. In it, he withdrew his candidacy and asked that he and Rude be allowed to cumulate all of the R & R proxy votes, which amounted to 27% of the total, in Rude's favor. The Inspector split the R & R votes evenly between Rude and Rudolph, and as a result neither was elected to the board.
Rude, Rudolph, and Brenda Nicoli, on behalf of herself as well as a putative class of CIRI shareholders,
In 2009, Rude and Rudolph sent CIRI shareholders four mailers in an attempt to change certain stock alienability restrictions and to call a special meeting on six resolutions. In December 2009, CIRI sued Rude and Rudolph in federal court for making materially false and misleading statements in the four mailers and for breaching confidentiality obligations. Rude and Rudolph raised some of the same counterclaims that they had raised in the 2008 case, and the federal court found that their arguments were barred by res judicata.
"Summary judgment is proper if there is no genuine factual dispute and the moving party is entitled to judgment as a matter of law."
"We refrain from deciding questions where the facts have rendered the legal issues moot. A claim is moot if it has lost its character as a present, live controversy."
Although the Shareholders have not previously raised this argument, it is a proper response to CIRI's mootness claim. The possibility of this compensation if the Shareholders prevail suggests that the controversy remains unsettled. In addition, there is a reasonable argument that these election fairness claims are capable of repetition and evading appellate review.
The first claim in this appeal is that the election inspector unlawfully refused to allow Rude to cumulate votes under the proxy he held with Rudolph. In Alaska, a shareholder has the right to cumulate his votes unless the articles of incorporation provide
This implication is supported by a case from the Third Circuit Court of Appeals: "Whether a shareholder intends to authorize the proxyholder to cumulate votes for fewer than the authorized number of directors should be determined by examining the proxy form itself."
These authorities are consistent with the language of the election rules adopted by the CIRI Board of Directors. The CIRI election rules do not explicitly require a proxy to authorize cumulative voting, but state: "The plain words of the proxy shall control," and "[i]n general, the Inspector of Election shall not use evidence outside the proxy form itself." The election rules give examples of the interpretation of a board proxy that suggest that a shareholder's votes will be distributed equally among the candidates named on the proxy form "unless the shareholder unambiguously directs another allocation." Finally, the rules specifically provide: "In order to avoid misleading proxy solicitations, a candidate may not voluntarily withdraw his or her candidacy in order to make his or her votes available for another candidate."
The language of the R & R proxy was fairly clear: "If this proxy is signed and no specific direction is given, it will be voted for Robert W. Rude and Harold F. Rudolph." The proxy continued: "You may withhold authority to vote for one of [sic] more of the nominees named here by lining through or otherwise striking out the nominee's name." The language of the proxy thus suggested that the shareholder's votes would be equally distributed between the candidates unless otherwise indicated on the face of the proxy. Therefore, the election inspector properly voted the proxies equally for Rude and Rudolph.
The second claim in this appeal is that the Shareholders' participation at the 2010 annual meeting was unfairly curtailed because the meeting was held in Washington state. Under Alaska law, "[m]eetings of shareholders shall be held at a place inside or outside this state as provided in the bylaws."
The Shareholders raise several additional election fairness claims. They first argue that the board's proxy statement did not disclose that the election was contested and that CIRI improperly excluded the independent candidates' names from CIRI's proxy. But we have previously held that the applicable regulations do not require the board to include independent candidates in the board's proxy statements.
Rude and Rudolph also argue that CIRI's proxy did not allow voting on corporate resolutions submitted by independent candidates.
The Shareholders also argue that CIRI's proxy form did not provide a blank space in its proxy to allow voting for write-in candidates. This claim is factually inaccurate because the board's proxy statement did have a blank line for write-in candidates. We rejected this argument in the 2008 case,
Finally, the Shareholders argue that CIRI unfairly required the independent candidates to pay for their own campaigns. We conclude that this claim is waived due to inadequate briefing.
On January 5, 2011, CIRI made timely Alaska Civil Rule 68 offers of judgment to each of the Shareholders in the amount of $1,500, "in resolution of all claims" and "inclusive of all interest, attorney's fees, and costs." After judgment was entered in its favor, CIRI moved for attorney's fees under Civil Rules 68 and 82, and the superior court granted fees under Rule 82. The Shareholders appeal the Rule 82 fee award. CIRI cross-appeals the court's denial of Rule 68 fees. CIRI also moved for sanctions under Rule 11, but the superior court denied that motion. CIRI now cross-appeals that decision as well.
When the superior court denied CIRI's request for attorney's fees under Rule 68, it reasoned that the offers of judgment that CIRI made to the Shareholders "were too low." The court's order appears to be based on Beal v. McGuire
We conclude that the offers in this case of $1,500 for each plaintiff were not too low to satisfy these precedents. In this case, the Shareholders' claims were particularly weak. Many of the claims were barred by collateral estoppel, and the Shareholders had plenty of time to conduct discovery to assess their claims before the offers were made.
The Shareholders cite Gold Country Estates Preservation Group, Inc. v. Fairbanks North Star Borough
In this case, however, the Shareholders sought both monetary and equitable relief in their complaint. The plaintiffs' damage claims were substantial — their prayer for relief requested monetary damages for CIRI's allegedly unfair election practices, punitive damages, unpaid directors' fees for Rude and Rudolph totaling over $200,000, and a money award to the putative class from a common fund. So the $1,500 offers of judgment did serve the legitimate purpose of addressing the Shareholders' claim for damages. And CIRI's offers were clearly worded to end the litigation by covering all the claims, not just the damage claims. Thus, the fact that the Shareholders were also seeking equitable relief does not invalidate CIRI's offers.
We conclude that we should remand this case to allow the superior court to reconsider CIRI's motion for Rule 68 attorney's fees. In addition, the attorney's fees awarded to CIRI should be apportioned among the individual plaintiffs.
When the superior court denied CIRI's motion for Rule 68 fees, the court referred to Nicoli's motion for class certification.
The superior court denied CIRI's motion for Rule 11 sanctions against the shareholders' attorney, Fred Triem. CIRI argued in its sanctions motion that Triem violated Rule 11 by filing the initial complaint and several postjudgment motions. CIRI's argument is that the claims therein were clearly barred by collateral estoppel, and thus Triem was in violation of Rule 11's requirement that legal arguments not be frivolous. But CIRI concedes: "Even where Rule 11 has been violated, entry of sanctions in a particular case is left to the superior court's discretion."
We AFFIRM the superior court's grant of summary judgment to CIRI as to all claims. We VACATE and REMAND the court's attorney's fee determination. We AFFIRM the court's denial of Rule 11 sanctions.
MAASSEN, Justice, not participating.