OPINION
I. INTRODUCTION
When the legislature enacted the Alaska Unfair Trade Practices and Consumer Protection Act (UTPA)
For over 30 years, we have consistently defined "unfair or deceptive acts or practices" in line with O'Neill Investigations.
The primary issue in this case is whether the Alaska legislature's directive that courts should give "due consideration and great weight" to the FTC and federal court interpretations of 15 U.S.C. § 45(a)(1) requires us to overrule our previous line of cases. We
II. FACTS AND PROCEEDINGS
A. Facts
This litigation arises from the award by Golden Valley Electric Association (GVEA) of two competitively bid construction contracts on its Northern Intertie Project. In November 2001 GVEA awarded Global Power & Communications, LLC (Global)
Subsequently, after Global had been awarded NI-9 and before it had completed work on NI-8, Global presented GVEA with requests for additional compensation (RFIs) totaling approximately $2.4 million in connection with NI-8. GVEA responded that it found "no legitimate basis in the construction documents" to justify Global's RFIs and was "rejecting Global's request for additional payment."
Several months later, Global requested a meeting with GVEA to discuss the merits of the rejected RF Is. Global also notified GVEA that Global would submit more RF Is, arising out of both NI-8 and NI-9. Global submitted additional RFIs to GVEA that month, including additional claims of approximately $2.3 million in connection with NI-8 and claims of approximately $765,000
GVEA responded to Global denying most of the RFIs but indicated that it would approve a few and consider partial payment for a few others.
B. Proceedings
1. Pre-trial proceedings
Global filed two complaints against GVEA in October 2003, asserting in the first that GVEA owed Global "in excess of $50,000" in connection with NI-8 and in the second that GVEA owed Global "in exeess of $50,000" in connection with NI-9. GVEA answered each complaint and the two actions were consolidated.
In December 2004 GVEA conveyed what it considered an Alaska Civil Rule 68 offer of judgment to Global, "offer[ing] to allow entry of Judgment in favor of [Global] for Seven Hundred and Fifty Thousand Dollars ($750,-000.00) ... contingent on the [consolidated lawsuits] being dismissed with prejudice." Global did not accept this offer.
Global then filed an amended complaint alleging new causes of action regarding NI--8, including misrepresentation, failure to disclose, and a claim under the UTPA.
GVEA moved for judgment on the pleadings on Global's UTPA claim. GVEA argued that the UTPA did not apply to the contractual relationship between GVEA and Global despite its application to a commercial dispute in Western Star Trucks, Inc. v. Big Iron
In early 2006 Global reformulated its claims using a different calculation methodology, reducing the total amount of its claims from approximately $5.7 million to approximately $8.2 million. It apparently did so after consulting a damages expert who found the original methodology "probably not as accurate as it should be."
GVEA amended its answer to Global's amended complaint, asserting new counterclaims against Global for misrepresentation and alleging that Global had falsified doeu-ments, including reports, employee time sheets, and RFIs.
GVEA later amended its counterclaims, asserting that Global had violated the UTPA by presenting falsified RFIs. GVEA alleged that it suffered damages from relying on false or misleading statements in Global's RFIs.
The parties filed trial briefs in April 2006. Global argued that GVEA could not prove damages for its UTPA claim because it had rejected and not paid Global's RFIs, excepting the few GVEA admitted it owed. GVEA maintained that the UTPA did not apply to the two contracts, but argued alternatively that under the trial court's earlier ruling it was entitled to pursue its UTPA claim against Global because GVEA had ineurred expenses investigating and defending against (Global's claims in the RF Is.
On the day of the final pretrial conference, Global filed a trial brief supplement regarding standards for UTPA claims. GCHlobal argued that the UTPA requires courts to give "due consideration and great weight" to interpretations of similar provisions of the Federal Trade Commission Act, and that both the FTC and federal cireuit courts of appeals had modified the standards for an unfair or deceptive trade practice since our seminal holding in State v. O'Neill Investigations.
2. Trial proceedings
A few days into trial GVEA responded to Global's trial brief supplement. GVEA argued that Odom v. Fairbanks Memorial FHospital
This issue continued to arise during trial. Shortly before the close of CHlobal's case, and after the court and counsel discussed relevant mid-trial jury instructions for the UTPA claims, the court stated that it would hold the issue of the standards for an unfair or deceptive trade practice open for final jury instructions.
At the conclusion of GVEA's case, Global moved for a directed verdict on GVEA's UTPA claim, arguing that it cannot be an unfair trade practice to withdraw a previously submitted claim in the course of litigation. The trial court denied the motion. After its rebuttal case, Global again moved for a directed verdict on GVEA's UTPA claim based on the current definitions of unfairness and deception. The trial court again denied the motion.
The trial court's final instruction on the parties' UTPA claims, Jury Instruction 28, contained the existing Alaska standards for an unfair or deceptive trade practice, as requested by GVEA, and not the standards based on current FTC Act interpretations, as
With respect to Global's claims under NI-8, the jury found GVEA had neither breached any contractual or common law obligations to Global nor engaged in any unfair trade practices.
With respect to Global's claims under NI-9, the jury found GVEA had breached its contractual obligations to Global but had not breached its implied promise of good faith and fair dealing or its duty to cooperate. The jury also found GVEA's actions were not the legal cause of any damages to Global.
With respect to GVEA's counterclaims under both NI-8 and NI-9, the jury found (Global had: (1) breached its contractual obligations to GVEA; (2) breached the implied promise of good faith and fair dealing; (8) engaged in misrepresentations; and (4) engaged in unfair trade practices. The jury then found Global was the legal cause of damages to GVEA, found GVEA had proved its damages with reasonable certainty and particularity, and awarded GVEA damages of $98,386. The jury attributed the entire $98,386 award to Global's unfair trade practices. The special verdict form did not allow the jury to state whether Global's misrepresentations and breach of contract might have concurrently caused those damages.
The trial court ordered that GVEA's damages "be trebled in the final judgment according to AS 45.50.531(a)
3. Post-judgment proceedings
a. Global's motions
(Global moved for judgment notwithstanding the verdict or, alternatively, for a new trial on GVEA's UTPA claim. Global first argued that the trial court erred in not granting a directed verdict on the UTPA claim at the close of GVEA's case because no reasonable juror could have concluded: (1) that Global's withdrawal of claims during the litigation was an unfair trade practice; (2) that Global's withdrawal of claims during the litigation was an act "in the conduct of trade or commerce"; or (8) that GVEA suffered damages from Global's withdrawal of claims during the litigation. Global next reiterated its arguments about Jury Instruction 28, contending that the court failed to give "due consideration and great weight" to current interpretations of "unfairness" and "deception" promulgated by the FTC and federal courts, and that the court erred by using the Odom standards. The trial court ruled that Jury Instruction 28 conformed to Alaska law and that substantial evidence supported the jury's verdict that Global had engaged in unfair trade practices; it therefore denied Global's motions for judgment notwithstanding the verdict and for a new trial on GVEA's UTPA claim.
Global also moved for a new trial on damages for GVEA's breach of NI-9. Global argued that after finding GVEA had breached NI-9, no reasonable juror could have concluded GVEA was not the legal cause of at least some damages. The trial court ruled that "[slubstantial evidence supports the jury's conclusion that GVEA's breach of contract was not the legal cause of any damages to Global" and denied the motion for a new trial on damages.
b. GVEA's motion
GVEA moved for an award of full reasonable attorney's fees totaling over $1 million for the entire litigation, citing the UTPA.
The trial court ordered GVEA to amend its attorney's fees motion to segregate time devoted to the prosecution of its UTPA claim because GVEA was entitled to full attorney's fees for that claim but not for prosecuting its other counterclaims or defending against (Global's claims. The court noted that segregation of attorney's fees by claim is not always required when the "claims are ... interrelated or ... have a common core of facts," but further observed that GVEA had prosecuted its UTPA claim for less than three months. The court believed segregation, or at least estimation, of UTPA-related attorney's fees should be feasible. The court ordered the parties to address how the UTPA full attorney's fees provision might act in concert with Rules 68 or 82 when caleulat-ing the final fee award.
GVEA amended its motion for an award of attorney's fees to approximately $660,000. GVEA calculated its actual attorney's fees after it filed the UTPA claim (approximately $515,000) and divided that amount equally among its four separate counterclaims, requesting that 25% (approximately $129,000) be attributed to the prosecution of the UTPA claim. Then, invoking Rule 68, GVEA requested 50% of its remaining actual attorney's fees (approximately $530,500).
(Hlobal argued that GVEA's December 2004 offer was not a valid Rule 68 offer of judgment because it called for a dismissal of the action rather than an entry of judgment against GVEA. Global also argued that GVEA's allocation of attorney's fees for its UTPA claim failed to comply with the court's order and was arbitrary.
The trial court found GVEA's allocation "fair and reasonable," noting that a reasonable person might believe GVEA spent more than 25% of its time on the UTPA counterclaim because of the high stakes involved. The court awarded GVEA approximately $128,000 under the UTPA and approximately $471,000 under Rule 68, for a total of approximately $599,000.
4. Issues on appeal
Global appeals, arguing: (1) that its conduct was insufficient to support liability under the UTPA, and its motions for a directed verdict and for judgment notwithstanding the verdiet should have been granted; (2) that it was reversible error to give Jury Instruction 28; (3) that the trial court should have granted Global a new trial upon the jury's finding that GVEA breached NI-9 but was not the legal cause of damages; (4) that GVEA's December 2004 offer did not comply with Rule 68 and cannot be used to enhance GVEA's attorney's fees award; (5) that GVEA's attorney's fees for prosecution of its UTPA counterclaim were not properly segregated; and (6) that the trial court erred by awarding post-judgment attorney's fees.
GVEA cross-appeals, arguing that it is entitled to an award of its full reasonable attorney's fees from the date of its UTPA claim.
III. DISCUSSION
A. The Superior Court Did Not Err By Relying On Our Precedent And Standards For "Unfair Or Deceptive" Practices Under The UTPA.
1. Standard of review
Issues of statutory interpretation and application present questions of law to which we apply our independent judgment.
Global's appeal from the adverse judgment on GVEA's UTPA claim raises three discrete but interrelated questions of law. The first, a threshold issue, is whether AS 45.50.545 requires that we modify our standards for unfair or deceptive trade practices set out in O'Neill Investigations, and the cases following it, in light of subsequent changes in FTC and federal court definitions of unfairness and deception.
Our starting point is the Alaska legislature's 1970 enactment of the UTPA.
Of great import to this case is AS 45.50.545, which mandates that "[in interpreting AS 45.50.4711 due consideration and great weight should be given the interpretations of 15 U.S.C. § 45(a)(1) (§ 5(a)(1) of the Federal Trade Commission Act).
[Clonform [the UTPA] to the language of the Federal Trade Commission Act ... enable the Attorney General and the courts of the state to utilize the body of law created by the Federal Trade Commis- .. [and provide} the consumer and with uniformity in sion .. the businessman ... unfair trade laws.[24 ]
We first considered the relationship between AS 45.50.471(a) and 15 U.S.C. § 45(a)(1) in O'Neill Investigations. In that case the State filed a complaint against a debt collector.
Since the [UTPA] directs that this section be interpreted by giving "great weight" and "due consideration" to the [FTC] and federal court interpretations of the analogous federal statute, the words have a fixed meaning which has survived challenges for vagueness. It is axiomatic that words will be infused with the meaning of prior judicial construction. The relevant prior judicial construction here is that which has emerged from agency and judicial interpretation of the identical words of the federal statute.[28 ]
We therefore determined that "[alny defects in the constitutional sufficiency of the warning provided by the [UTPA are] thus cured by authoritative administrative interpretations which clarify obscurities or resolve ambiguities."
We next established standards for unfair or deceptive acts under the UTPA. "Two elements must be proved to establish a prima facie case of unfair or deceptive acts or practices under the [UTPA): (1) that the defendant is engaged in trade or commerce; and (2) that in the conduct of trade or commerce,
(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unseru-pulous; (8) whether it causes substantial injury to consumers (or competitors or other businessmen).[34 ]
Thus we expressly based our standards for unfairness and deception on federal agency and judicial authorities interpreting 15 U.S.C. § 45(2)(1).
A survey of our subsequent UTPA cases confirms that we have consistently, for the past 30 years, used the O'Neill Investigo-tions standards for unfairness and deception.
First, the FTC issued a policy statement in 1980, noting that "the Commission has continued to refine the standard of unfairness in its cases and rules, and it has now reached a more detailed sense of both the definition and the limits of these criteria."
In 1994 Congress codified this language in a new provision to the FTC Act, which states:
The [FTC] shall have no authority ... to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to ecause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.[39 ]
Following codification of this new subsection, federal courts have followed this new statuto
Regarding the standard for deceptive practices, we held in O'Neill Investigations that "[aln act or practice is deceptive or unfair if it has the capacity or tendency to deceive" where neither actual injury as a result of the deception nor intent to deceive were required.
We must now determine whether these new federal standards require us to overrule our precedent.
3. Applicable standards for a deceptive or unfair trade practice in this case
Global argues that the trial court erred by denying its motions for a directed verdict and for a judgment notwithstanding the verdict and by giving Jury Instruction 28.
a. Waiver regarding jury instruction
Alaska Civil Rule 51(a) provides that "[nlo party may assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection."
In its trial brief supplement, Global argued that the court should use current FTC Act
b. Global's motions and Jury Instruction 28
The trial court conformed to our pree-edent and standards for unfair or deceptive trade practices in evaluating Global's motions for directed verdict and judgment notwithstanding the verdict and in formulating Jury Instruction 28. We decline to abandon our prior case law:; We do not adopt the FTC's 1980 policy statement, now codified at 15 U.S.C. § 45(n), as the standard for evaluating whether a practice may be deemed unfair under the Alaska UTPA. We also decline to depart from our precedent regarding the definition of a deceptive practice. We thus conclude that the trial court did not err in evaluating (Global's motions or formulating Jury Instruction 28 according to our prior definitions of deceptive or unfair trade practices.
We expressly stated in O'Neill Investigations that the UTPA was not unconstitutionally vague because under AS 45.50.545, an interpretive amendment added in 1974, the rather amorphous concepts could take meaning from FTC and federal court interpretations of identical language found in the FTC Act, namely 15 U.S.C. § 45(a)(1).
Regarding unfairness, because the federal statute changed markedly after the addition of 15 U.S.C. § 45(n) in 1994, FTC and federal court interpretations of the FTC Act post-1994 are not authorities that the 1974 legislature identified as proper guidance for resolving the scope and meaning of unfairness under Alaska's UTPA. Moreover, 15 U.S.C. § 45(n) appears to restrict the seope of unfair or deceptive conduct that is actionable under the FTC Act, and incorporating these restrictions into the Alaska UTPA would result in less protection for Alaska consumers and business people.
Our approach is informed by decisions of other states that have faced this issue. Initially, we note that although the 1980 FTC policy statement that modified the definition of an unfair practice is now over 80 years old, the majority of states still subscribe to the Sperry standard for unfairness used by the FTC and federal courts prior to 1980.
A 2009 decision from the Montana Supreme Court illustrates courts' reasoning regarding the unfairness standard. In Rohrer v. Knudson, the court examined whether a trial court's instruction defining "unfair practice" was a correct statement of the law.
Turning to the standard for a deceptive practice, we conclude that our case law is not in conflict with federal authorities because the definition used by the FTC and federal courts has not changed appreciably; accordingly, there is no reason to depart from our 30 years of precedent regarding the standard for evaluating deceptive practices. When it modified the deception standard in 1984, the FTC noted that it was not making a major change but rather was "articulat{ing] the factors actually used in most earlier Commission cases identifying whether or not an act or practice was deceptive, even though the language used in those cases was often couched in such terms as a tendency and capacity to deceive.
To show deception under the FTC Act, intent, scienter, actual reliance or damages, and even actual deception are unnecessary. All that is required is proof that a practice has a tendency or capacity (or, under the FTC's latest formulation, is likely) to deceive even a significant minority of consumers,[61 ]
Alaska's definition of a deceptive practice as one that has the capacity or tendency to deceive, then, does not conflict with existing federal interpretations. We thus conclude that there is no need for us to overrule O'Neill Investigations and its progeny. The trial court did not err when it applied the O'Neill Investigations standard to formulate Jury Instruction 28 and to rule on Global's post-trial motions.
c. Application of the UTPA to this commercial dispute
Relying primarily on our decisions in Western Star and Kenai Chrysler Center, Global argues that its conduct did not violate the UTPA because it did not (1) amount to an "inequitable assertion of power or position," or (2) "involve a sufficient 'level of rascality' ...."
In Western Star we held that the UTPA may apply in the business-to-business context.
In Kenai Chrysler Center a dealership sold a car to a developmentally disabled young
According to Global, the most important aspect of Western Star is that "there was very real inequality in the party's positions: Western Star had control over the question whether to award a dealership to Big Iron. Big Iron was essentially a supplicant seeking a dealership." Global compares itself to the dealer in Western Star. Global also suggests that in Kenai Chrysler Center we adopted a requirement of an "inequitable assertion of power or position" for a UTPA violation, and that we "also embraced the similar requirement ... that the requisite conduct must 'have an extortionate quality that gives it the rancid flavor of unfairness'" (Emphasis in original.) We disagree.
First, nowhere in Western Star did we suggest that relative power influenced our decision. Second, in Kenai Chrysler Center we recognized that although the O'Neill Investigations factors "require proof of something more than the mere assertion of a good faith but mistaken belief that a contract was valid,"
d. Application of the UTPA to litigation activity in this case
GVEA asked the jury to award damages for its "review of withdrawn claims." GVEA presented evidence of employee time incurred in reviewing and denying Global's RFIs in 2002 and 2008, prior to the litigation, which it calculated to be $7,420. GVEA also presented evidence of $90,966 of employee and expert consultant time expended to re
Global argues that its litigation decision to recalculate its damages claims, and specifically to withdraw portions of its original claims, is not an unfair trade practice under the UTPA. Global contends that it would be poor public policy to penalize and thus discourage parties from withdrawing or modifying contract claims during the litigation process. Global points out the irony that had it not withdrawn portions of its claims, GVEA could not have claimed damages for "review of withdrawn claims," even though GVEA might have successfully defended against them. GVEA responds that "Global utilized deceptive claims machinations" during "the course of the litigation" but otherwise does not address Global's arguments.
Although we disagree with Global that its mid-litigation withdrawal and recalculation of damages were necessarily key to GVEA's UTPA claim, we also disagree with GVEA's inclusion of litigation actions in its UTPA claim. GVEA may not pursue in this litigation a claim for damages under the UTPA for actions undertaken by Global in this litigation.
e. Conclusion
Although GVEA appropriately pursued a UTPA claim for damages arising from Global's presentation of allegedly falsified RFIs, GVEA should not have been permitted to recast Global's litigation activity as a UTPA claim or GVEA's own litigation expenses as UTPA damages in this litigation. We therefore affirm the jury's verdict only for the $7,420 in pre-litigation compensatory damages under the UTPA, vacating the remainder of the verdict.
B. Global Is Entitled To A New Trial On Causation And Damages Arising From GVEA's Breach Of NI-9.
1. Standard of review
We set forth in Grant v. Stoyer the standard for reviewing denial of a new trial motion:
The decision to grant or deny a new trial is within the trial court's discretion. We will only reverse a decision to deny a new trial "if the evidence supporting the verdict was so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust." In conducting our review, we view the evidence in the light most favorable to the nonmoving party.[83 ]
In that case we affirmed a longstanding rule that "where negligence and causation of compensable physical injury are conceded or proved, and where evidence of at least some pain and suffering is substantial
2. Global's motion for a new trial on NI-9 damages
The jury found that GVEA breached its contractual obligations under NI-9 but that GVEA's breach was not the legal cause of any damages to Global. Global moved for a new trial on damages, arguing that in light of the undisputed evidence of GVEA's breach, no reasonable juror could have concluded that GVEA was not the legal cause of some damages. Global asserted that under Grant v. Stoyer, a new trial was the only available remedy.
Global recounted trial evidence of instances when GVEA failed to deliver complete, undamaged, or specification-compliant materials as required by the contract. (lobal also pointed to GVEA's failure to provide updated erection drawings for river crossing towers until after Global had been unable to erect the towers based on outdated drawings GVEA provided. Global identified this error as "probably the biggest part of its delay damages."
GVEA conceded it had breached NI-9 by late delivery of owner-supplied materials. But GVEA argued: (1) that Global was not really delayed because (Global completed the project within the time projected in its original bid; (2) that Global was unable to quantify any alleged delay damages; and (8) that Global itself caused any alleged delay damages through poor contract management.
Global replied by reiterating undisputed difficulties arising from GVEA's late delivery of materials and specifications and referring to its Exhibit 192, a claim summary quantifying its damages. Global's discussion and Exhibit 192 included a line item of "$7,369 for installation of a gate at the Tanana River."
The trial court denied Global's motion for a new trial on damages, finding:
Substantial evidence supports the jury's conclusion that GVEA's breach of contract was not the legal cause of any damages to (Global. Among this evidence is that cited by GVEA in its opposition. Additionally, other evidence questioned the credibility of (Global's witnesses, their analyses, and their conclusions. The jury had enough evidence upon which to reject the testimony of Global's witnesses by not attaching credibility or giving it little weight. The verdiet is not against the weight of the evidence.
3. Global's appeal
Global contends that the trial court abused its discretion by denying Global's motion for a new trial on damages. Global reiterates its trial court arguments, primarily asserting that given the undisputed evidence of construction difficulties resulting from GVEA's untimely delivery of materials for the project, no reasonable juror could have concluded that GVEA's contractual breach was not the legal cause of some damages. GVEA responds, as it did below, by asserting that evidence in the record supports the jury's finding that GVEA's contractual breach did not legally cause any quantifiable damages.
It is readily apparent that the jury found ilobal's witnesses and evidence less than credible. The trial court observed the witnesses and evidence, observed the presentation of the parties' cases, and concluded that the jury could have found that although GVEA breached its contractual obligations, its breach was not the legal cause of any
Nonetheless, we cannot reconcile the jury's findings. GVEA expressly conceded that it breached NI-9 through untimely delivery of materials. GVEA implicitly conceded that it breached NI-9 through failing to provide proper materials and to compensate (lobal for installing a gate on the north bank of the Tanana River. GVEA's argument that Global's mismanagement of time and resources caused its damages might be persuasive as to matters of delay but cannot provide a defense with respect to either Global's uncon-tradieted evidence of duplicated effort caused by improper materials or GVEA's admitted non-payment for the gate. Although GVEA's arguments may demonstrate that the jury could reasonably have disputed the amount of damage caused by the breaches, there can be no dispute that the breaches caused (Global some damage. In light of the evidence presented, the jury's finding of no legal causation is "plainly unreasonable and unjust.
We therefore remand for a new trial on causation and damages arising from GVEA's breach of NI-9.
C. Attorney's Fees Issues.
1. Standard of review
We review an award of attorney's fees for abuse of discretion.
2. UTPA attorney's fees award
Alaska Statute 45.50.537(a) provides: "In an action brought by a private person under [the UTPA), a prevailing plaintiff shall be awarded ... full reasonable attorney fees at the prevailing reasonable rate." Thus, a plaintiff who prevails on a claim brought pursuant to the Alaska UTPA is entitled to an award of full reasonable attorney's fees.
Because we are vacating in part GVEA's judgment and remanding for further proceedings on Global's claims regarding NI-9, we vacate GVEA's Rule 68 attorney's fees award. To assist the parties in evaluating the case on remand and to avoid an unnecessary second appeal of the issue, we will consider whether GVEA's December 2004 offer was a valid Rule 68 offer of judgment.
In December 2004 GVEA made an offer "to allow entry of Judgment in favor of [Global] for Seven Hundred and Fifty Thousand Dollars ($750,000.00) ... contingent on the [consolidated lawsuits] being dismissed with prejudice."
When GVEA sought an award of attorney's fees under Rule 68 after trial, Hobal asserted that GVEA's offer was not a valid Rule 68 offer of judgment. Global argued that because "it did not provide for the entry of judgment against GVEA" it was only "a settlement offer, rather than an offer of judgment." CHobal acknowledged that the "offer suggested that it would allow entry of judgment in (Hobal's favor in the amount of $750,000," but noted that it "was expressly 'contingent' on the two consolidated cases 'being dismissed with prejudice"" Global concluded that "the 'non-monetary provisions' in GVEA's 'offer of judgment'-the requirement that Global dismiss the pending cases with prejudice-defeated the very purpose of an offer of judgment: to provide for the entry of a binding, enforceable judgment in favor of the offeree." (Emphasis in original.)
GVEA responded that the offer met the requirements of Rule 68. GVEA relied on a number of California cases holding that under California's offer of judgment rule, an offer may state a proposed payment in return for a dismissal with prejudice. Although the trial court had previously described GVEA's offer as "offering to pay Global the amount of $750,000"-and, expressly, not as "offering judgment in the amount of $750,000"-the trial court stated it was persuaded by GVEA's California cases and that "no particular language" for a Rule 68 offer is required. The trial court determined GVEA's offer was therefore neither indefinite nor ambiguous and was a valid Rule 68 offer of judgment. The trial court awarded attorney's fees under the rule.
On appeal the parties raise the same arguments. In its brief, GVEA described its offer as "offering to pay Global $750,000 in exchange for dismissal with prejudice of both cases" and relied on the California cases holding this language sufficient for an offer of judgment.
After oral argument in this case, we issued our decision in Sayer v. Bashaw.
Here the trial court expressly stated that GVEA's offer was an offer to pay, not an offer of judgment. In its brief GVEA described its offer as an offer to pay Global in return for a dismissal of the litigation with prejudice. Oral arguments failed to clarify the consequences of accepting GVEA's offer. At best whether GVEA's offer provided for judgment or payment is ambiguous; at worst the offer provided for payment and not judg
IV. CONCLUSION
We AFFIRM IN PART and VACATE IN PART the judgment entered in favor of GVEA against CHobal and REMAND for (1) a fee determination regarding GVEA's UTPA claim against Global and (2) a new trial on causation and damages relating to GVEA's breach of NI-9.
Notes
. AS 45.50.471-.561.
. AS 45.50.471(a). 2.
. AS 45.50.545.
. See 1974 House Journal 122-24; ch. 53, § 8, SLA 1974.
.
. Id. at 534-35.
. See Kenai Chrysler Ctr., Inc. v. Denison,
. Letter from FTC to Senators Ford and Dan-forth (Dec. 17, 1980), reprinted in H.R.Rep. No. 98-156, pt. 1, at 33-40, 36 (1983).
. See 15 U.S.C. § 45(n).
.
. Global has since changed its name to ASRC Energy Services Power and Communications, LLC, and the case caption has been changed to reflect that fact. To be consistent with references to the parties in the trial court record, we continue to refer to ASRC as Global.
. Although the parties assert a larger figure in their briefs, it does not appear to be supported by the record.
. AS 45.50.471-.561.
.
.
.
. AS 45.50.531(a) provides:
A person who suffers an ascertainable loss of money or property as a result of another person's act or practice declared unlawful by AS 45.50.471 may bring a civil action to recover for each unlawful act or practice three times the actual damages or $500, whichever is greater. The court may provide other relief it considers necessary and proper. Nothing in this subsection prevents a person who brings an action under this subsection from pursuing other remedies available under other law, including common law.
. AS 45.50.537(a) provides:
In an action brought by a private person under AS 45.50.471-45.50.561, a prevailing plaintiff shall be awarded costs as provided by court rule and full reasonable attorney fees at the prevailing reasonable rate.
. Mat-Su Valley Med. Ctr., LLC v. Advanced Pain Ctrs. of Alaska, Inc.,
. Id. at 700-01 (quoting Enders v. Parker,
. State v. Carlin,
. Ch. 246, § 2, SLA 1970.
. When AS 45.50.545 was passed in 1974, 15 U.S.C. § 45(a)(1) provided, in relevant part: "(Unfair or deceptive acts or practices in commerce[] are declared unlawful." Today, and at the commencement of this litigation, 15 U.S.C. § 45(a)(1) provides: "[UJnfair or deceptive acts or practices in or affecting commerce[ ] are hereby declared unlawful."
. 1974 House Journal 122; see also ch. 53, § 8, SLA 1974.
. State v. O'Neill Investigations,
. Id. at 525.
. Id. at 532-34.
. Id. at 532 (footnotes omitted).
. Id. at 534 (citing Parker v. Levy,
. Id. at 534.
. Id. (citing FTC v. Raladam Co.,
. Id. at 534-35 (citing Floersheim v. FTC,
. Id. at 535 (citing Warner Lambert Co. v. FTC,
. Id. at 535 (quoting FTC v. Sperry & Hutchinson Co.,
. See id. at 534-35; Sperry & Hutchinson,
. See Kenai Chrysler Ctr., Inc. v. Denison,
. Letter from FTC to Senators Ford and Danforth (Dec. 17, 1980), reprinted in H.R.Rep. No. 98-156, pt. 1, at 33-40, 36 (1983) (footnote omitted).
. Id.
. FTCA Amendments of 1994, Pub.L. No. 103-312, § 9, 108 stat. 1691, 1695 (codified at 15 U.S.C. § 45(n)).
. See, e.g., FTC v. Neovi, Inc.,
. O'Neill Investigations,
. In re Cliffdale Assocs., Inc.,
. The trial court's instruction on the parties' UTPA claims, Jury Instruction 28, read as follows:
In order to prevail, a claimant must prove it is more likely true than not true that:
1. The party engaged in an unfair or deceptive act or practice;
2. The act or practice must have occurred in the conduct of trade or commerce; and
3. The other party suffered ascertainable loss of money or property as a result.
An act or practice is deceptive if it can be interpreted in a misleading way. The claimant is not required to prove that the other party intended to deceive anyone.
An act or practice is unfair if it 1) offends public policy; 2) is immoral, unethical, oppressive, or unscrupulous; or 3) causes substantial injury in the form of monetary harm or unwarranted health and safety risks.
(Emphasis in original.)
, Alaska R. Civ. P. 51 (a).
. Loof v. Sanders,
. Van Huff v. Sohio Alaska Petroleum Co.,
. O'Neill Investigations,
. See 15 U.S.C. § 45(n) (directing that the FTC ""shall have no authority ... to declare unlawful" acts and practices that do not meet the certain parameters); see also FTC v. IFC Credit Corp.,
. See Minutes, Sen. Judiciary Comm. Hearing on C.S.H.B. 543, 8th Leg., 2d Sess. (April 16, 1974) (Comments of Norman Gorsuch, Attorney Gen.) (explaining that C.S.H.B. 543 would "broaden [] the definition of unfair trade practices to include 'little FTC' language") (emphasis added).
. Kenai Chrysler Ctr., Inc. v. Denison,
. Id. at 1256.
. See generally Nationar Consumer Law Center, Unfair & Deceptive Acts & Practices, § 4.3.1, at 249 (7th ed. 2008) ("Most state courts use what is known as the "S & H" standard of unfairness developed by the FTC. ..."); Rohrer v. Knudson,
. See, e.g., PNR, Inc. v. Beacon Prop. Mgmt., Inc.,
.
. Id. (citing Mont.Code Ann. §§ 30-14-103, 104(1)).
. Id. at 763 n. 1.
. Id. at 764.
. Id. (explaining that "[In doing so, we give due consideration and weight to interpretations of the FTC and federal courts regarding § 5(a)(1) of the FTC Act").
. In re Cliffdale Assocs., Inc.,
. See generally National Consumer Law Center, Unfair & Deceptive Acts & Practices, § 4.2.9, at 202-03 (7th ed. 2008) ('To date, most courts interpreting state [unfair and deceptive acts and practices] statutes continue to use the capacity to deceive and not the likely to deceive standard.... This standard is valid and does not conflict with federal law."); see also Walker v. Fleetwood Homes of N.C.,
. National Consumer Law Center, Unfair & Deceptive Acts & Practices § 4.2.3.1, at 190 (citing Cliffdale,
.
. Id. at 1047.
. Id. at 1048.
. Id. at 1048, 1050.
. Id. at 1050-54.
. Id. at 1052. We also quoted the House Judiciary Committee Report, which stated that the bill was "designed to meet the increasing need in Alaska for the protection of consumers as well as honest businessmen from the depredations of those persons employing unfair or deceptive trade practices." Id. (emphasis added in Western Star) (quoting Judiciary Committee Report on H.C.S.C.S. for Senate Bill No. 352, House Journal Supp. No. 10 at 1, 1970 House Journal 744).
. Id. at 1053-54.
.
. Id. at 1246.
. Id. at 1247.
. Id. at 1255.
. Id. at 1256 (citing St. Paul Fire & Marine Ins. Co. v. Ellis & Ellis,
. Id. (quoting S. Atl. Ltd. P'ship of Tenn., L.P. v. Riese,
. Id.
. Id. at 1256.
. Id.
. St. Paul Fire & Marine Ins. Co.,
. Kenai Chrysler Ctr., Inc.,
. Id. at 1255 (quoting State v. O'Neill Investigations,
. Cf. Meidinger v. Koniag, Inc.,
. Sisters of Providence v. A.A. Pain Clinic, Inc.,
.
. Id. at 598.
. Id. at 599.
. Id. at 598-99 (emphasis in original) (citing Richey v. Oen,
. Cf. Spruce Equip. Co. v. Maloney,
. See Estate of Smith v. Spinelli,
. Grant v. Stoyer,
. Id.
. Bromley v. Mitchell,
. Mackie v. Chizmar,
. Kenai Chrysler Ctr., Inc. v. Denison,
. GVEA has filed a related cross-appeal, arguing that the superior court erred by requiring GVEA to segregate the portion of its attorney's fees arising from its UTPA claim. It argues that "when a party brings [a UTPA] claim as one claim among many," and prevails on the UTPA claim, that party is entitled to full attorney's fees on all of its claims. This argument is without merit. As Global maintains, "the UTPA attorney's fees provision is intended only to facilitate a party's ability to prosecute UTPA claims. The fact that a party is a 'UTPA litigant,' in the sense that the party is asserting a UTPA claim, does not transmute the party's non-UTPA claims into claims for which the party is entitled to an award of full, reasonable attorney's fees."
Here the superior court awarded GVEA one quarter of its total attorney's fees. The court reasoned that there were four different claims at trial, and that GVEA's attorney's "block billing" practices made it impossible to distinguish with any precision how much was spent on each claim. In Kenai Chrysler Center,
.
. Id. at 364.
. Id.
. Id.
. Id. at 363.
. Id. at 365-66.
. See id.; Thomann v. Fouse,