OPINION
I. INTRODUCTION
In 2008 Robert Rude, then a sitting Cook Inlet Region, Inc. (CIRI) director, and three other candidates ran as an independent "New Alliance" slate for positions on the CIRI board of directors. Shortly before the election, CIRI filed suit, claiming that the New Alliance proxy materials contained materially misleading statements. Rude and his co-defendants counterclaimed, alleging that CIRI's election procedures were unfairly tilted toward the interests of the current board and that the directors had improperly refused to disclose shareholder and corporate information to Rude and the other New Alliance candidates. The superior court granted summary judgment on all claims and counterclaims in favor of CIRI. As a result, the New Alliance proxies were voided, and Rude was not re-elected to the board. Rude appeals the rulings both on CIRI's claims and his counterclaims. Although Rude's claims are now technically moot, we address them insofar as they potentially affect prevailing party status. Because no issue of material fact exists as to the claims at issue and because CIRI is entitled to judgment as a matter of law, we affirm the superior court.
In a separate appeal, Rude challenges four other rulings of the superior court. First, he challenges the award of attorney's fees to CIRI. Second, he challenges the superior court's denial of his Rule 60(b) motion for relief from judgment. Third, he challenges the superior court's exclusion of exhibits filed with that motion. Finally, he challenges the superior court's dismissal of New Alliance as a party to this suit. Because the superior court did not abuse its discretion in any of these rulings, we affirm the superior court in all respects.
II. FACTS AND PROCEEDINGS
A. - Background
Cook Inlet Regional, Inc. (CIRI) is an Alaska Native Claims Settlement Act (ANC-SA) corporation organized under Alaska law. It is governed by a 15-member board of directors, serving staggered three-year terms. Each year five director positions are up for election by the shareholders, and each year the board of directors recommends five candidates for the shareholders' vote and solicits proxies
B. Board Endorsement And Formation Of New Alliance Slate
For the 2008 elections, Robert Rude, as well as Dorothy J. Anagick, Chris Kiana, and Mike Thomas, ran for seats on the board.
Under CIRI's rules, individuals who wish to run for the board of directors, but who are not included in the board-endorsed slate, may still be included in CIRI's proxy materials. Such individuals are listed, along with their photographs and background information, in CIRI's proxy statements;
C. - Proxy Solicitation
On March 28, 2008, New Alliance began soliciting proxies on behalf of the four candidates and for a New Alliance proposal for a special dividend of $50 per share.
Shortly after New Alliance sent its first proxy materials, CIRI filed a complaint with the Division of Banking, Securities and Corporations, alleging that New Alliance's proxy solicitations contained false and misleading statements concerning, most importantly, CIRI's alleged failure to pay adequate dividends in the past. While CIRI, New Alliance, and the Division communicated back and forth regarding CIRI's complaint to the Division,
These additional New Alliance mailings, as well as the New Alliance website, contained a number of statements which CIRI believed to be false or misleading. These statements, described in more detail below, concerned, among other things, management compensation, allegations that CIRI had "liquidated" or sold significant landholdings, shareholders' rights under Alaska law and ANCSA, CIRI's election procedures, and CIRI's dividend policy. In CIRI's words, the statements as a whole gave the false impression that "(all-though CIRI as a corporation has done well in earning a profit over the years, the CIRI Board majority (and management) have refused to share the corporation's success with
Meanwhile, starting in April 2008, CIRI began soliciting its own proxies. CIRI's first proxy solicitation included a proxy statement, including biographies of the board-endorsed candidates as well as three "other candidates." The proxy statement also included information about continuing directors (ie., those not up for re-election) and corporate information, including information about the current board of directors and election procedures. The enclosed proxy included the names of the five board-recommended candidates, as well as the three "other candidates" and a blank line labeled "Write-In Candidates." The proxy did not include a space for shareholders to vote on New Alliance's proposed special dividend.
CIRI's second proxy mailing, mailed approximately one week after the first, included a voter guide with more in-depth information about the eight candidates on the proxy, along with CIRI's annual financial report, a flyer in support of the board-endorsed candidates, and another proxy form with the same information as the first, CIRI subsequently sent two more mailings that included proxy forms and information supporting its endorsed candidates. Throughout its proxy mailings, CIRI touted its "Early Bird Prizes"-eash prize drawings for shareholders who returned proxies "for any proxy holder or candidate" before the May 30 deadline.
D. The Lawsuit And The Election
On June 5, two days before the scheduled shareholder meeting, CIRI filed suit against Rude, Anagick, Kiana, Thomas, and New Alliance, alleging that their proxy materials contained numerous false and misleading statements. The suit sought to void the New Alliance proxies.
Before the New Alliance candidates could respond, the shareholder meeting was held, and Rude and Thomas had the most votes to win election to the board. At the meeting, Thomas proposed the special dividend of $50 per share, but it was defeated when CIRI voted its proxies against the measure.
Following the election, the New Alliance candidates answered CIRI's complaint and filed numerous counterclaims. In its counterclaims, New Alliance
CIRI moved for summary judgment on its claims against New Alliance. New Alliance moved for partial summary judgment on its counterclaims against CIRI, and CIRI filed a cross-motion for partial summary judgment on the counterclaims. The superior court granted summary judgment in favor of CIRI on both sets of claims.
E. CIRI's Motion For Summary Judgment
In her ruling on CIRI's motion for summary judgment on the claims against New Alliance, pro tem Superior Court Judge Morgan Christen found that five sets of statements in New Alliance's proxy solicitation materials were misleading as a matter of law.
Second, the superior court found materially misleading New Alliance's claims that CIRI was being "liquidated" and that CIRI land entitlements had been reduced by 700,-000 acres of surface and 1,000,000 acres of subsurface estate. The superior court determined that these statements were misleading because there was no evidence in the record to support New Alliance's contention that CIRI was being liquidated or selling off such significant landholdings. The superior court further found that New Alliance did not have a good-faith basis for such a belief. The superior court found that these statements were material as a matter of law "because a reasonable shareholder would of course consider it important when deciding how to vote if he/she understood that 700,000 acres of surface estate and 1,000,000 acres of subsurface estate had been liquidated without explanation."
Third, the superior court found materially misleading New Alliance's statement that
Section 2(b) of ANCSA says Natives shall have maximum participation in decisions affecting their rights and property.
We believe shareholder participation is lacking in our corporation.... Shareholders do not get to vote on: the sale of large ANCSA land and natural resource properties; large cash donations; the granting of CIRI owned stock to senior executives; political donations; large payments made to lobbyists and consultants; nor do they get to vote on legislation that would affect the rights or property. We want to change this!
The superior court concluded that these statements were misleading because they suggested that shareholders had a right to participate in CIRI's management decisions and that "the board [was] improperly denying shareholders' input into corporate governance." Instead, the superior court noted, "under Alaska law, the board of directors, not shareholders{,] has the right to make ... management and - operational - decisions." The superior court found that New Alliance's statements to the contrary were material because "[tlhere is a substantial likelihood that a reasonable shareholder would consider the statement about shareholders' voting rights important in deciding how to vote."
Fourth, the superior court found materially misleading New Alliance's statements that "New Alliance candidates have to pay their own election expenses" and "(independent candidates ... have to pay their own campaign expenses which often cost an independent candidate tens of thousands of dollars and, if elected, they are not reimbursed their campaign expenses." The superior court concluded that these statements were misleading because the New Alliance candidates could have had some of their campaign expenses paid for if they had chosen to follow CIRI's procedures for being included in CIRI's proxy materials as "other candidates" and because CIRI did pay for some of the expenses for Rude to attend an informational meeting for shareholders in Washington. The superior court found that these statements were material as a matter of law because there was "a substantial likelihood that a reasonable shareholder would consider these] statement[s] important in deciding how to vote ... [because they] perpetuate[d] the theme that minority board members are being treated unfairly by the majority."
Fifth, the superior court found materially misleading New Alliance's statements that "never again will a hardcore minority of 6 directors control our corporation." Although New Alliance claimed it was referring to one faction's de facto control of the board, the superior court concluded that this statement was misleading because "[al minimum of
The superior court concluded that because the misrepresentations in New Alliance's proxy materials were sufficiently "egregious," the proxies given to New Alliance "must be declared void." Because the New Alliance proxies were declared void, Rude and Thomas, who had previously collected enough proxies to win election to the board of directors, were removed from their seats.
F. New Alliance's Motion For Summary Judgment And CIRI's Cross-Motion
On the same day that it granted CIRI's motion for summary judgment, the superior court also granted CIRI's cross-motion for partial summary judgment on New Alliance's counterclaims and denied New Alliance's motion for partial summary judgment. Based on its understanding of New Alliance's motion, the superior court identified eight claims in the motions before it, of which only the first five are raised in this appeal. Those claims were whether CIRI violated Alaska securities law and common law proxy rules by:
(1) sending out its proxy statement and proxy to the shareholders before sending out its annual report;
(2) failing to comply with the proxy requirements under 3 AAC 08.335;
(83) failing to disclose material information on its proxy, including the names and information of all the candidates who were running for the board;
(4) failing to provide sufficient space on the proxy for the shareholders to write in the names of other candidates; [and]
(5) failing to disclose New Alliance's proposal for a special dividend and to provide a way for shareholders to vote on it;. ...
As to the first issue, the superior court noted:
Alaska proxy regulation 3 AAC 08.345 provides:
(a) The solicitation of proxies on behalf of the board for an annual meeting must be preceded or accompanied by the annual report for the corporation's last fiscal year, unless
(1) the solicitation is made on behalf of the board before the annual report is available;
(2) solicitation is being made at the time in opposition to the board; and
(8) the board's proxy statement includes an undertaking to furnish the annual report to all shareholders being solicited at least 50 days before the date of the annual meeting. (Emphasis added by superior court.)
The superior court found that all three of these requirements had been met. The superior court noted that CIRI had filed a sworn statement that its financial statement was not yet ready when CIRI sent its first proxy mailing. The superior court found that, although New Alliance asserted that CIRI had the necessary information to publish its annual report before it solicited proxies, there was no evidence to support this, and the superior court therefore determined that CIRI had met the first prong. The superior court then noted that there was no dispute that CIRI had satisfied the second prong. Finally, the superior court noted that CIRI's initial proxy statement included an undertaking to furnish the annual report to shareholders at least 50 days before the annual meeting. Although New Alliance alleged that voters should not be asked to vote before they have information that a reasonable shareholder would view as significant in deciding how to vote, the superior court found that Alaska law specifically permitted CIRI to solicit proxies in response to New Alliance's solicitation and thus granted summary judgment to CIRI on this issue.
As to the second and third claims, New Alliance contended that CIRI's proxies should be voided because the proxy statement and voter guide failed to disclose the names of all candidates running for the board
On the same claim, New Alliance argued that CIRI violated two common law proxy rules-the Equal Prominence Rule and the Buried Facts Rule-by giving Rude less prominence than other directors in CIRI proxy materials. The superior court rejected this argument for two reasons. First, the court noted that "when the legislature enacts a statute to govern a matter previously addressed by the common law, the statute controls," and therefore the proxy regulations discussed above, not common law rules, controlled. Second, the court found that even if the common law rules were applicable, Rude was given the same treatment as other current directors in those parts of the proxy materials applying equally to all directors. And because he was not a continuing director, a board-endorsed candidate, or an "other candidate," he was not included in those sections. The superior court therefore concluded that CIRI did not violate the Equal Prominence Rule or the Buried Facts Rule.
As to the fourth claim, New Alliance argued that the write-in section of CIRI's proxies was insufficient and misleading because it only contained one blank line following the term "Write-In Candidates." The superior court, though, found no legal authority for New Alliance's claim that proxies were required to have multiple write-in slots and further found that CIRI's use of the plural "candidates" would lead a reasonable voter to understand that it was permissible to write in more than one name. The superior court consequently found that CIRI's write-in seetion complied with Alaska law.
Finally, the superior court concluded that CIRI's proxy was not required to disclose New Alliance's proposal for a special dividend, nor to provide a way for shareholders to vote on it. The superior court concluded that the Alaska Securities Act required CIRI "to include a proposal in its proxy statement when the board intends to introduce a resolution to the shareholders" but that "[tJhird-party proposals which may or may not be introduced at an annual meeting are not required to be in a corporation's proxy and proxy statement." - Accordingly, the court concluded that CIRI did not have to include New Alliance's proposal in its proxy materials.
G. - CIRI's Final Motions For Dismissal And Summary Judgment
In August 2009, pro tem Superior Court Judge Peter G. Ashman, who had taken the case over from Judge Christen, ordered Rude to file a statement outlining any claims Rude had against CIRI which remained live. When Rude failed to respond, CIRI moved for dismissal, and Rude opposed. The superior court dismissed Rude's counterclaims for failure to comply with the court's August 2009 order. The superior court also found that CIRI was entitled to dismissal "on substantive grounds," noting that Judge Christen's order on partial summary judgment had decided all of Rude's claims relating to CIRI's election procedures and that Rude's remaining claims concerning his demand for shareholders' information were now moot because Rude had been removed as a director.
Rude moved for reconsideration of the dismissal, and the superior court, though noting that Rude had offered no explanation for his failure to respond to the August 2009 order, granted the motion, specifying that it would treat CIRI's motion to dismiss as a motion for summary judgment. The superior court limited briefing to what it found were the only four remaining issues, namely Rude's claims that (1) CIRI unfairly took sides in elections and improperly used its resources to support its candidates; (2) "CIRI's policies and practices are improperly intended to entrench incumbents"; (8) CIRI refused to give Rude shareholder addresses and email addresses, information to which he was entitled as a director; and (4) CIRI refused to give Rude other corporate information to which he was entitled as a director. The superior court gave CIRI an opportunity to supplement its motion as appropriate for summary judgment and for Rude to respond.
In January 2010, after hearing oral argument, Superior Court Judge Frank A. Pfiff-ner, who had taken over the case from Judge Ashman, issued an oral decision granting CIRI's motion for summary judgment on the remaining counterclaims.
As to the first two issues, that CIRI took sides and their election policies entrench incumbents, the superior court concluded that they had been disposed of by Judge Christen's earlier order on CIRI's cross-motion for partial summary judgment. The superior court determined that once summary judgment was granted in favor of CIRI regarding the specific claims of unfair election practices, the more general claims were unsupported and fell away. As to the second two issues, the superior court concluded that they were moot. The superior court noted that AS 10.06.450(d) did grant directors the right to certain corporate information but found that because Rude's proxies were invalid, he did not win the election and so was not a director.
With regard to a fifth issue, that Rude was entitled to certain corporate information as a shareholder, the superior court rejected this argument for a number of reasons. First, because this issue was outside the seope of the prior order outlining the remaining issues, the court found that Rude had abandoned the claim. Second, the superior court found that Rude had not made any requests in his capacity as a shareholder, but instead only in his capacity as a director. Finally, the superior court determined that even if Rude made requests as a shareholder, any requests did not meet the statutory requirement of shareholder requests for information because the requests did not state "with particularity the purpose of the inspection, identifying that it was a proper purpose and that the documents were connected to an otherwise proper purpose" as required under AS 10.06.480(b). Although the superior court noted that Judge Christen had refused to grant summary judgment as to several of
H. Post-Judgment Proceedings
The superior court ordered Rude to pay $43,773.80 in attorney's fees and $5,441.14 in costs, for a total monetary judgment of $49,214.94.
After filing a notice of appeal, Rude filed a motion for relief from judgment. Rude attached to his motion over 30 new exhibits. CIRI opposed the motion and moved to strike the new exhibits. The superior court granted CIRI's motion to strike the new exhibits, finding that they were irrelevant to the motion, untimely, and unauthenticated. The superior court also denied Rude's motion for relief from judgment, ruling that Rude's motion was not based on a mistake of law or newly discovered evidence as required by Alaska Civil Rule 60(b), but was rather a rehash of his earlier arguments and an attempt to introduce evidence that was unauthenticated and that had been available for timely introduction during the litigation.
Rude has filed two appeals. In the first he appeals many of the substantive matters decided in the superior court's three orders on summary judgment. In the second he challenges four procedural matters: (1) the superior court's award of costs and attorney's fees to CIRI; (2) the superior court's denial of Rude's Rule 60(b) motion for relief from judgment; (@) the superior court's order striking exhibits attached to the 60(b) motion; and (4) the superior court's entry of a stipulation dismissing the New Alliance corporation as a party.
III. STANDARDS OF REVIEW
We review grants of summary judgment de novo.
We apply "the deferential 'reasonable basis' standard of review ... where a question of law implicates [an] agency's expertise as to complex matters or as to the formulation of fundamental policy."
We will not reverse an award of attorney's fees,
IV. DISCUSSION
These two appeals encompass a total of 12 primary issues. Rude first brings six claims relating to CIRI's conduct of the election for the board of directors. The next two claims concern CIRI's refusal to turn over to Rude information about CIRI shareholders. Rude then argues that the superior court erred in granting summary judgment on CIRI's claims that the New Alliance proxy materials contained material misrepresentations. In his second appeal, Rude argues that the superior court erred by awarding CIRI attorney's fees. Finally, Rude brings three procedural claims. We address these arguments in turn.
A. Rude's Counterclaims
1. Most of Rude's claims are technically moot and reviewable only for the purpose of determining prevailing party status for an award of attorney's fees.
CIRI argues that nearly all of Rude's election claims are moot because, owing to numerous delays in this case, the seats up for election in 2008 have since come up for election again. Consequently, Rude's requested remedy-that CIRI's proxies for the 2008 election be voided-can no longer provide him any relief.
"A claim is moot where ... it has lost its character as a present, live controversy, that is, where a party bringing the action would not be entitled to any relief even if he or she prevailed."
As we have recognized, though, an exception to the mootness doctrine exists through which technically moot claims can be reviewed if there is a strong public interest reason for doing so. In order to determine whether the public interest exception applies, we ask
(1) whether the disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied, may repeatedly circumvent review of the issues and, (3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine.[27 ]
In Rude's case, because CIRI holds elections every year, his claims are at least capable of repetition. Further, we may assume without deciding that the public interest in open, fully informed corporate democracy is so great as to justify overriding the mootness doctrine. However, in this case the public interest doctrine does not apply because, like in O'Callaghan, "a timely election challenge [was] possible."
The superior court granted summary judgment to CIRI on most of Rude's election counterclaims in May 2009. On July 17, 2009, the superior court held a hearing concerning the issues remaining following Judge Christen's initial summary judgment orders; Rude did not appear at this hearing, nor did he respond to the superior court's order compelling him to identify remaining counterclaims. Accordingly, CIRI filed a motion to dismiss in October 2009. Only then did Rude respond, but the superior court dismissed Rude's remaining claims in November 2009. Rude then filed a motion for reconsideration, and the superior court agreed to convert the motion to dismiss into a motion for summary judgment and give the parties time to brief the matter appropriately. On January 21, 2010, the superior court granted summary judgment on Rude's remaining counterclaims and a final judgment
Nonetheless, we have held that "where the outcome of an otherwise moot claim may 'change[ ] the status of the prevailing party and thus an award of attorneys' fees," we reach the merits of that claim."
2. CIRI was not required to list the names of the New Alliance candidates in its proxy materials.
Rude first argues that the superior court erred by determining that CIRI was not obligated to include the names of the New Alliance candidates in its proxy materials. Rude points to two federal cases from outside Alaska for the proposition that corporations bear the obligation to use their proxy materials to inform shareholders of non-board-endorsed candidates that the board knows to be running.
CIRI responds that Alaska law does not require CIRI to list non-board-recommended candidates in its proxy materials. CIRI also
Rude relies primarily on Chambers v. Briggs & Stratton,
As CIRI and the superior court point out, 3 AAC 08.345, which governs the contents of proxy materials, provides:
(b) The solicitation of proxies on behalf of the board must be preceded or accompanied by a dated, written proxy statement including, but not limited to, the following:
(1) if action is to be taken on the election of directors, a description of each nominee of the board who has consented to act if elected and of each director whose term of office will continue after the shareholders' meeting.
3 AAC 08.835, which governs the contents of proxies, provides:
(c) The proxy must
(1) indicate that the proxy is solicited on behalf of the board or, if solicited other than by the board, indicate the identity of the persons on whose behalf the solicitation is made;
(2) provide a specifically designated blank space for dating the proxy; and
(3) provide a means for the shareholder to specify by boxes a choice between approval or disapproval of each matter or group of related matters identified in the proxy as intended to be acted upon, other than the election of directors.
(e) A proxy that provides for the election of directors must
(1) set out the names of the nominees for whom the proxy is solicited; and
(2) clearly provide one of the following:
(A) a box opposite the name of each nominee which may be marked to indicate that authority to vote for that nominee is withheld;
(B) an instruction that the shareholder may withhold authority to vote for a nominee by lining through or otherwise striking out the name of that nominee;
(C) a "ballot" type of selection in which the shareholder is permitted to award votes to selected nominees of the shareholder's choosing.
The superior court is correct that 3 AAC 08.335, the section governing the proxies themselves, does not require CIRI to include non-board-nominated candidates like Rude in its proxies. Subsection (e)(1) specifically requires that the proxy must "set out the names of the nominees for whom the prosy is solicited." (Emphasis added.) The rule contemplates that each proxy solicitor will only solicit its own proxies, only requiring a solicitor to include its own candidates. Accordingly, CIRI should not be held to an obligation to solicit proxies on behalf of others.
As to 8 AAC 08.345, the section governing the contents of proxy statements, we addressed this exact issue last year and held that corporations are not required to include
Further, as both CIRI and the superior court note, CIRI in fact provided Rude and the other New Alliance candidates an opportunity to be included in the proxy statement, but they chose not to be included. Rude now argues that they should have been included despite this previous refusal. But surely CIRI cannot be required to solicit a candidate's proxies against that candidate's will. The superior court did not err by granting summary judgment to CIRI on this point.
3. - CIRI's selection of board-recommended candidates was not improper..
Rude next argues that it was improper for the board to hold "a closed primary election" in which a board-endorsed slate was chosen without shareholder participation. To support his argument he cites to cases concluding that shareholders must be allowed to nominate candidates to oppose board-nominated slates.
4. - CIRI did not improperly remove Rude from the board of directors..
Rude next argues that CIRI improperly removed him as a director by "taking him off the list of its current directors" in its statement. This, he argues, violated CIRI's duty to disclose the names of its directors, exceeded CIRI's powers to punish a sitting director, violated common law rules of disclosure and candor, violated common law proxy rules, and amounted to common law fraud.
The superior court correctly granted summary judgment on these claims. The fundamental flaw in Rude's contention is that his name was not removed from CIRI's proxy statement. As discussed above, CIRI was not required to list Rude as a candidate in its proxy statement, and so the omission of his name as a candidate cannot be considered removal.
5. CIRI did not impermissibly solicit proxies before distributing its annual report.
Rude next argues that the superior court erred when it concluded that "[uJnder
The superior court rejected this argument, relying on 3 AAC 08.345(a). That regulation provides:
(a) The solicitation of proxies on behalf of the board for an annual meeting must be preceded or accompanied by the annual report for the corporation's last fiscal year, anless
(1) the solicitation is made on behalf of the board before the annual report is available;
(2) solicitation is being made at the time in opposition to the board; and
(3) the board's proxy statement includes an undertaking to furnish the annual report to all shareholders being solicited at least 50 days before the date of the annual meeting. (Emphasis added.)
The regulation provides an exception to the general rule that a proxy solicitation cannot precede a financial report. Because there was no dispute as to the second and third prongs of the exception, the superior court focused on the first Rude argued, as he does now, that the first prong was not satisfied because, although it is undisputed that the financial report was not available when CIRI sent out its first proxy mailing, CIRI had all the essential information it needed to compile the report well before its first mailing. The superior court correctly rejected this argument.
CIRI Vice President Barbara Donatelli filed a sworn affidavit stating that the report was not available when CIRI sent out its first mailing. Rude counters that CIRI received its independent auditor's report on March 21, 2008, and therefore had enough time to produce its final report before mailing its first proxy solicitation on approximately April 11. But Rude's bare assertion that CIRI could have completed its financial report within approximately 20 days of the completion of the independent auditor's report does not create a genuine issue of material fact. Summary judgment was therefore properly granted on this point.
6. CIRI was not required to include information about New Alliance's proposed special dividend in its proxy materials.
Rude next argues that the trial court erred in granting summary judgment on his claim that CIRI was required to disclose the New Alliance proposal for a special dividend and to allow shareholders a way to vote on it. Several interlocking provisions of the Alaska proxy regulations govern whether board proxy materials must provide shareholders with a way to vote on proposals. As a general matter, 3 AAC 08.335(d) provides that proxies can confer authority on proxy holders to vote on proposals only "if the proxy discloses how the shares represented by the proxy will be voted in each case." In some cases, though, proxies may grant proxy holders discretionary authority to vote on certain matters. 3 AAC 08.335(f) provides two potentially relevant cireumstances in which discretionary authority may be granted.
First, 3 AAC 08.835(F)(1) allows for proxies to confer on their holders discretionary authority to vote with respect to "matters which the persons making the solicitation do not know, a reasonable time before the solicitation, are to be presented at the meeting." CIRI argues, and the superior court agreed, that this exeeption applies because "although Rude and the New Alliance had expressed their intention to include the proposal, CIRI could not know whether that plan would indeed be carried out, nor could CIRI know the language that would be used."
Second, 3 AAC 08.335(f)(4) allows for proxies to confer on their holders discretionary
We will focus on the second exception.
When interpreting an agency regulation for which an agency has provided its own interpretation, we apply "a deferential standard of review [that] properly recognizes that the agency is best able to discern its intent in promulgating the regulation at issue."
The proxy regulations at 8 AAC 08.335(f)(4) state that a proxy may confer discretionary authority to vote on proposals omitted from the proxy statement and proxy materials if solicited for an annual meeting by participants other than the board. We do not agree ... that the intent of this section is to allow discretion only if the promoters of it refuse to allow the proposal's inclusion in the management proxy. We do not find that CIRI's intent to use discretion to vote on [shareholder] proposals is a violation of the regulations.
Rude proposes no alternative interpretation of the regulation except to assert that his interpretation is correct. He makes no argument that the Division's interpretation of the regulation lacks a rational basis. Because an agency is best able to interpret the intent of its regulations,
7. CIRI's proxy forms did not improperly contain too few slots for write-in candidates.
Finally, in the last of his election-fairness claims, Rude argues the superior court should have invalidated CIRI's proxies because they "did not contain five ... blanks for write-in candidates, but only one." According to Rude, this implied that a voter could only vote for one write-in candidate. As the superior court correctly noted, however, Rude provides no authority
to support [his] assertion that a proxy must provide space for shareholders to write in the names of other candidates. Nor does the format misrepresent the options available to the shareholder casting a ballot.... [A] reasonable shareholder*93 would understand [CIRI's use of the term] 'write-in candidates' to mean that a shareholder is permitted to write-in more than one candidate.
Because the regulations governing proxies do not require spaces for write-in candidates, and because even if such a requirement were inferred, CIRI's use of the plural "candidates" conveys that more than one name may be written in, the superior court correctly granted summary judgment on this point.
8. Rude's claim that CIRI impermissibly refused to disclose information to which he was entitled as a director is moot.
Rude's next two claims argue that CIRI improperly denied him access to corporate information to which he was entitled. In the first claim, Rude argues that he was entitled to the information by virtue of his position as a director. In the second, Rude argues that he was entitled to the information by virtue of his position as a shareholder.
Rude argues that he was denied access to two types of corporate information to which he was absolutely entitled as a director. First, he argues that CIRI wrongfully refused to disclose shareholder email addresses and phone numbers. Second, he argues that CIRI wrongfully refused to disclose "information related to the management of the corporation." - Rude argues that as a director he had an absolute right to this information under AS 10.06.450(d).
CIRI argues, and the superior court found, that Rude's claim as a director is moot because onee he lost his seat as a director he was no longer entitled to this information. Therefore, even if CIRI's denial was improper, Rude no longer has a right to any relief. Rude concedes mootness but argues that the public interest exception applies to his claims. But, in an unpublished decision, we addressed the public interest exception in this context and determined that it does not apply because claims like this would not "continually evade review."
Unlike the other claims at issue in this appeal that are technically moot though nonetheless justiciable, Rude's claim that he was denied corporate information has no bearing on his status as a prevailing party and therefore cannot affect an award of attorney's fees. Rude is seeking to invalidate CIRI's proxies. Whether Rude prevails on this information claim has no bearing on whether CIRI's proxies should have been invalidated, but only on whether Rude was entitled to certain information back when he was a director. The appropriate relief for a denial of corporate information is an injunetion,
9. Rude abandoned his argument that CIRI impermissibly refused to disclose information to which he was entitled as a shareholder.
Rude's second information claim argues that he was denied access to shareholder email addresses to which he was entitled as a shareholder. He argues that AS 10.06.430(b)
Rude has abandoned his shareholder claim for information. Onee the superior court had granted summary judgment to CIRI on most of Rude's counterclaims, the superior court gave Rude an opportunity to identify remaining counterclaims. When Rude failed to do so CIRI filed a motion to dismiss the remaining counterclaims. Rude opposed CIRI's motion and identified four remaining counterclaims, none of which concerned shareholders' rights to information. The superior court then converted CIRI's motion to a motion for summary judgment on the four remaining counterclaims exactly as delineated by Rude and gave the parties an opportunity to file briefing. Rude's failure to identify shareholder information requests as a live issue at this point constitutes an abandonment of his claim.
For the foregoing reasons, CIRI is entitled to summary judgment on all of Rude's counterclaims. We now turn to CIRI's original claims that the New Alliance proxy materials contained material misrepresentations.
B. CIRI's Claims
The superior court determined that five statements or sets of statements in the New Alliance proxy solicitations were materially misleading as a matter of law. Rude responds that four of these sets of statements are true while the fifth is not misleading because it is aspirational. CIRI urges us to affirm the superior court and further argues that the superior court erred by failing to grant CIRI summary judgment on three other allegedly false statements made by New Alliance.
Alaska law prohibits material misrepresentations in proxy solicitations.
A misrepresentation is a statement that, at the time and under the cireumstances in which it is made (1) is false or misleading with respect to a material fact; (2) omits a material fact necessary in order to make a statement made in the solicitation not false or misleading; or (8) omits a material fact necessary to correct a statement, in an earlier communication regarding the solicitation of a proxy for the same meeting or subject matter, which has become false or misleading.[51 ]
The same regulation provides that a "misrepresentation is material if there is substantial likelihood that a reasonable shareholder
[a] series of statements or omissions that are objectively false or misleading, but which might not be material misrepresentations if considered separately, might be material misrepresentations if there is a substantial likelihood that a reasonable shareholder would consider the series important in deciding how to vote."[53 ]
Alaska applies the "total mix" standard for determining the materiality of omitted facts.
Although the issue of materiality is generally one of fact, we have held that the issue "may be resolved as a matter of law on summary judgment 'if the established [misrepresentations] are so obviously important to an investor, that reasonable minds cannot differ on the question of materiality.'"
1. The superior court did not err by granting summary judgment to CIRI on New Alliance's statements concerning CIRI's liquidation.
The first set of statements the superior court found materially misleading were found in New Alliance's third mailer:
Who is liquidating CIRI? The New Alliance believes CIRI is being liquidated by management. As of May 2006; CIRI sold total ANCSA land entitlements of $336,344,180. Included in this amount was the sale of $275,141,211 worth of federal surplus properties.
The CIRI May 1996 newsletter listed CIRI's original ANCSA land entitlement at 1,801,515 acres of surface and 2,366,685 acres of subsurface estate. CIRI traded 602,399 acres of surface and subsurface estate for our federal surplus properties.
Page 7 of the CIRI 2007 Annual Report lists CIRI's current ANCSA land entitlement at approximately 600,000 acres of surface and 1,300,000 acres of subsurface estate. Our land entitlements have been reduced by approximately 700,000 acres of surface and 1,000,000 acres of subsurface estate. (Emphases in original.)
The basis for the superior court's conclusion that these statements, taken together, were misleading was an affidavit filed by CIRI's Director of Land and Resources Kim Cunningham. - That affidavit stated, in part:
Since CIRI's inception, in no way has CIRI "sold" or "liquidated" anywhere close to 700,000 acres of surface or 1,000,000 acres of subsurface lands that CIRI received as [its] ANCSA entitlement. The original ANCSA lands made available to CIRI for selection within its region were of little value because they consisted largely of "mountain tops and glaciers." Through a comprehensive settlement with the federal government, followed by a series of land exchanges, CIRI agreed to forego certain of its original entitlement acreage in exchange for potentially more valuable land of a lesser acreage outside of the CIRI*96 region. As stated in the 1996 Annual Report at 21, the land CIRI agreed to accept for its ANCSA entitlement consisted of approximately 699,000 acres of surface estate and 1,764,000 acres of subsurface estate. To date, CIRI has received over 90% of its entitlement, as restructured....
... CIRI's business records [attached to the affidavit] reflect that as of April 2, 2008, CIRI owned 606,057 acres of surface estate, and had sold only 11,755 acres of surface estate, for a total sales price of $306,139,284 .... CIRI owned 1,559,083 acres of subsurface estate, and had sold only 118,763 acres for a total sales price of $31,105,256. ...
CIRI still owns over 90% of the acreage it received under ANCSA. ...
In granting summary judgment, the superior court found that asking "who is liquidating CIRI" gave the false impression that its assets were being liquidated or sold off, The superior court rejected the defendants' argument that they had a good-faith basis for believing that CIRI was liquidating large landholdings.
On appeal, Rude does not argue that he had a good-faith belief that the New Alliance statements were true, but rather that they are true. Rude argues that "[the New Alliance's third mailer did not state or imply that CIRI had sold or liquidated 700,000 acres of surface estate or 1,000,000 acres of subsurface estate, only that CIRI's entitlement to this acreage had been traded away for government surplus property, much of which was sold between 1997 and the present." But taken together, the three paragraphs clearly suggest the former. By titling this section of the mailer "Who is liquidating CIRI?" and claiming that CIRI had disposed of vast estates, New Alliance suggested that major assets are being sold as part of a total dismantling of CIRI This is an affirmative misrepresentation. It is material because, as the superior court noted, "a reasonable shareholder would of course consider it important when deciding how to vote if he/she understood that 700,000 acres of surface estate and 1,000,000 acres of subsurface estate had been liquidated without explanation."
By mentioning the $336 million in land sales, along with the reductions in CIRI's entitlement, without mentioning that the former was for the sale of only 12,000 acres of surface estate and 119,000 acres of subsurface estate and that the latter was as a result of swapping less valuable (though larger) acreage for more valuable (though smaller) acreage, the mailer suggests that more than half of CIRI's original ANCSA entitlement has been sold. The omission of any explanation as to the sales and land swap is material because "there is 'a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the 'total mix' of information made available.'"
2. The superior court did not err by granting summary judgment to CIRI on New Alliance's statements concerning shareholder rights.
The superior court also found materially misleading the following statements from New Alliance's third mailer:
Shareholder participation. Section 2(b) of ANCSA says "Natives shall have maximum participation in decisions affecting their rights and property."
We believe shareholder participation is lacking in our corporation.... Shareholders do not get to vote on: the sale of large ANCSA land and natural resource properties; large cash donations; the granting of CIRI owned stock to senior executives; political donations; large payments made to lobbyists and consultants; nor do they get to vote on legislation that would affect their rights or property. We want to change this! (Emphases in original.)
Rude argues on appeal that these statements were not misleading because they were "merely aspirational." "The New Alliance," he argues, "is stating that if shareholders elect a majority of New Alliance directors, the directors will consult with shareholders and seek advisory votes on certain large transactions." But the New Alliance materials give the impression that the supposed lack of shareholder participation in CIRI decisions is a violation of Section 2(b) of ANCSA. Rude's after-the-fact explanation-that New Alliance was merely proposing advisory votes-is unpersuasive because New Alliance could easily have said that in the mailer, but chose not to.
3. The superior court did not err by granting summary judgment to CIRI on New Alliance's statements that "a hardcore minority of 6 directors" controlled CIRI
Third, the superior court found that it was a material misrepresentation for New Alliance to say on its website that "never again will a hardcore minority of 6 directors control our corporation." The superior court rejected New Alliance's argument that it was referring to the power of six directors to select an executive committee that conducted much of CIRI's business, New Alliance omitted this explanation from the statement on its website. As a result, the total mix of available information suggested improper corporate governance.
4. The superior court did not err by granting summary judgment to CIRI on New Alliance's statements.
These three misrepresentations permeated New Alliance's proxy solicitation and together gave the materially misleading impression that the CIRI board was improperly depriving shareholders of the benefits of corporation ownership. Because these three misrepresentations, taken together, are sufficient to justify the superior court's decision to void the New Alliance proxies, we need go no further. Addressing further alleged misrepresentations can have no bearing on CIRI's status as the prevailing party.
C. Rude's Second Appeal
Rude's second appeal in this case challenges the superior court's fee award and three procedural matters. First, Rude argues that the attorney's fee award to CIRI should be reduced to zero based on various alleged forms of misconduct committed by CIRI. Second, Rude argues that the court improperly refused to admit the exhibits that Rude attached to his Rule 60(b) motion. Third, Rude argues that the superior court wrongly denied his Rule 60(b) motion for relief from judgment on procedural grounds and should have reached the substance of his argument. Finally, Rude argues that the court erred in dismissing New Alliance as a party. None of these arguments has merit, and we affirm the superior court on all points.
1. The superior court did not abuse its discretion in awarding attorney's fees to CIRI.
Following summary judgment on all of CIRI's claims and Rude's counterclaims, the superior court ordered Rude to pay CIRI attorney's fees totaling $48,778.80 and costs totaling $5,441.14.
Alaska Civil Rule 82(b)(2) provides that in cases without money judgments, the superior court "shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred." Here CIRI submitted evidence showing that it had spent $223,530 in litigating the claims and counterclaims against Rude, and the superior court accordingly awarded attorney's fees of slightly below 20%. Rude does not challenge that this was the proper presumptive amount under Rule 82. Instead, he argues that the superior court abused its discretion
Further, with the exception of the claim that CIRI refused to disclose shareholder email addresses, Rude explicitly stated in his opposition to CIRI's motion for attorney's fees that neither party had engaged in vexatious or bad-faith conduct. He has therefore waived this argument.
Rude's second argument, relying on Rule 82(b)(8)(D),
Relying on Rule 82(b)(3)(J), Rude next argues that "[this [clourt should vacate CIRI's award of costs and attorney fees because
Finally, Rude argues that the superior court should have applied "the equitable doe-trine of common benefit" to "protect[ ] a lone shareholder from bearing the burden of litigation that is intended to benefit many shareholders, to promote corporate suffrage, and to protect the corporate democracy." As discussed above, though, Rude's private interest in bringing his counterclaims was substantial, The superior court was therefore acting within its discretion when it declined to vary the fee award.
Because Rude has not shown that the superior court abused its discretion in declining to vary from Rules 82's presumptive fee awards, we affirm the superior court's fee award.
2. The superior court did not abuse its discretion by striking from the record exhibits filed with Rude's Rule 60(b) motion.
Rude next argues that the superior court abused its discretion in refusing to admit 33 exhibits attached to his Rule 60(b) motion. - Rude's motion for relief from judgment, filed after summary judgment had been granted on all of the claims and counterclaims and after Rude had already filed a notice of appeal, contained 33 new exhibits. CIRI then filed a motion to strike the exhibits on the grounds that they were irrelevant to Rude's Rule 60 motion, that they were filed much too late and were "a blatant attempt to inappropriately supplement the record on appeal," and that they were not authenticated. The superior court granted CIRI's motion for the reasons stated therein.
On appeal, Rude argues that the motion was brought as a Rule 12(f) motion to strike and that Rule 12(f) empowers courts to strike material from pleadings only, and not exhibits. He argues that even if Rule 12(f) were applicable, the exhibits in question "were not redundant, immaterial, impertinent, or scandalous" because they were "CIRI's own business records." He further argues that the superior court erred in finding that the evidence was not relevant under Alaska Evidence Rules 401 and 408. He finally argues that the superior court erred in finding that the exhibits were not admissible because they were not authenticated.
The superior court did not abuse its discretion in refusing to admit the exhibits. As the superior court found, Rude's new exhibits were filed after summary judgment had already been granted on all claims and those judgments had already been appealed. At that point, Rude's delay in filing the exhibits could fairly be called undue, and admitting the exhibits-ie., giving Rude an opportunity to supplement the appellate record after the case had already terminated-would have unfairly prejudiced CIRI.
3. The superior court did not abuse its discretion by denying Rude's Rule 60(b) motion.
Rude next argues that the superior court abused its discretion in denying his Rule 60(b) motion for relief from judgment.
4. The superior court did not abuse its discretion by entering the stipulated order dismissing New Alliance as a party.
Finally, Rude argues that the superior court erred by entering a stipulated order dismissing New Alliance as a party. On July 6, 2009, following the superior court's two main summary judgment rulings, the superior court entered a stipulation and order dismissing defendants Anagick, Kiana, Thomas, and New Alliance as parties. The stipulation was signed by CIRI's attorney, Thomas's attorney, Chris Kiana, and Ella Anagick, who four days before had filed an entry of appearance as attorney on behalf of New Alliance.
Rude argues that this stipulation was "not effective" with respect to New Alliance because Triem was the attorney of record for New Alliance, and he "has never withdrawn or been substituted." Alaska Civil Rule 81(c), on which Rude relies, provides:
(1) An attorney who files a pleading or appears in a court proceeding on behalf of a party shall be deemed to have entered an appearance for all purposes in that case unless the attorney has filed and served a limited entry of appearance under (d) of this rule.
(2) Except as otherwise ordered by the court, or except as provided in Rule 81(d) and 81(e)(1)(D), a party who has appeared by an attorney may not thereafter appear or act in the party's own behalf in any action or proceeding, unless order of substitution shall have been made by the court after notice to such attorney.
According to Rude, this rule required a substitution of counsel before Anagick could act on behalf of New Alliance.
- CIRI responds that neither Rude nor Triem objected to the dismissal below, nor to Anagick's entry of appearance as counsel for New Alliance, and that this point is therefore waived. CIRI is correct. "A party may not raise an issue for the first time on appeal.
v. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court.
. When reviewing a grant of summary judgment, we construe the facts in the light most favorable to the non-moving party. See McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001).
. 3 Alaska Administrative Code (AAC) 08.365(12) (2012) defines proxy as "a written authorization which may take the form of a consent ... signed by a shareholder ... giving another person power to vote with respect to the shares of the shareholder."
. Anagick, Kiana, and Thomas were parties to the initial lawsuit in this case but have since been dismissed.
. - The board's initial slate included, in addition to Rude and Thomas, incumbent directors Roy Hubndorf, Penny Carty, and Patrick Marrs.
. The revised slate included incumbent directors Penny Carty, Roy Huhndorf, Patrick Marrs, and B. Agnes Brown, as well as Katrina Jacuk.
. A proxy statement is "a letter, publication, press release, advertisement ... or other communication of any type which is made available to shareholders under circumstances reasonably calculated to result in the procurement, withholding, or revocation of a proxy." 3 AAC 08.365(14).
. CIRI's annual shareholder meeting, at which elections would be held, was scheduled for June 7, 2008, with proxies due May 30.
. The alleged misstatements in New Alliance's first mailer-and the procedural history of the dispute concerning those alleged misstatements-are not at issue in this appeal. Because CIRI initially pursued its complaints concerning alleged misrepresentations in New Alliance's first mailer with the Division of Banking, Securities and Corporations, the superior court found that those claims upon which the Division ruled must be pursued as an administrative appeal, and therefore converted that portion of CIRI's complaint into an administrative appeal. That appeal has apparently been stayed pending the resolution of this case.
. - We refer to the New Alliance candidates collectively as New Alliance, except where more specificity is required.
. In its counterclaims, styled as 56 separate claims, New Alliance suggested several other possible counterclaims which are not germane to this appeal and so are not described here.
. 3 AAC 08.345 provides:
(b) The solicitation of proxies on behalf of the board must be preceded or accompanied by a dated, written proxy statement including, but not limited to, the following:
(1) if action is to be taken on the election of directors, a description of each nominee of the board who has consented to act if elected and of each director whose term of office will continue after the shareholders' meeting.... (Emphasis added.)
. 3 AAC 08.335 provides:
(c) The proxy must
(1) indicate that the proxy is solicited on behalf of the board or, if solicited other than by the board, indicate the identity of the persons on whose behalf the solicitation is made;
(2) provide a specifically designated blank space for dating the proxy; and
(3) provide a means for the shareholder to specify by boxes a choice between approval or disapproval of each matter or group of related matters identified in the proxy as intended to be acted upon, other than the election of directors.
[[Image here]]
(e) A proxy that provides for the election of directors must
(1) set out the names of the nominees for whom the proxy is solicited; and
(2) clearly provide one of the following:
(A) a box opposite the name of each nominee which may be marked to indicate that authority to vote for that nominee is withheld;
(B) an instruction that the shareholder may withhold authority to vote for a nominee by lining through or otherwise striking out the name of that nominee;
(C) a "ballot" type of selection in which the shareholder is permitted to award votes to selected nominees of the shareholder's choosing.
. See Yost v. State, Div. of Corps., Bus. & Prof'l Licensing, 234 P.3d 1264, 1272 (Alaska 2010).
. Wright v. State, 824 P.2d 718, 720 (Alaska 1992).
. State, Dep't of Highways v. Green, 586 P.2d 595, 606 n. 32 (Alaska 1978).
. Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006).
. Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982).
. Id.
. See Valdez Fisheries Dev. Ass'n., Inc. v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 672 (Alaska 2002).
. See Cook v. Cook, 249 P.3d 1070, 1077 (Alaska 2011).
. See Carroll v. Carroll, 903 P.2d 579, 582 n. 7 (Alaska 1995).
. See Dome Labs. v. Farrell, 599 P.2d 152, 155-56 (Alaska 1979).
. Marsingill v. O'Malley, 128 P.3d 151, 155 (Alaska 2006).
. Clark v. State, Dep't of Corr., 156 P.3d 384, 387 (Alaska 2007) (internal quotation marks and citations omitted).
. 920 P.2d 1387 (Alaska 1996).
. Id. at 1388-89.
.. Id. at 1389 (quoting Peloza v. Freas, 871 P.2d 687, 688 (Alaska 1994)).
. Id.
. See Mullins v. Local Boundary Comm'n, 226 P.3d 1012, 1019 (Alaska 2010) (comparing "the time it takes to bring the appeal with the time it takes for the appeal to become moot," and determining that the second prong of the public interest exception was not met because the time between the filing of a petition for incorporation and the incorporation election was not "insufficient to permit judicial review") (internal quotations and citations omitted).
. Gold Country Estates Pres. Grp., Inc. v. Fairbanks N. Star Borough, 270 P.3d 787, 795 (Alaska 2012) (quoting Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 777 (Alaska 2001)); see also Smallwood v. Cent. Peninsula Gen. Hosp., Inc., 227 P.3d 457, 461 (Alaska 2010); Lamoureaux v. Totem Ocean Trailer Express, Inc., 651 P.2d 839, 840 n. 1 (Alaska 1982).
. - In one line in his brief, without any citation to any legal authority, Rude asserts that he is owed either two or three years of unpaid director's fees for the time he was unfairly denied a seat on the board (pursuant to the superior court's order voiding Rude's proxies). However, "where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal." Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991). Rude also suggests, in a single clause in his brief and without any legal citation, that a further remedy is "to enjoin CIRI's inequitable election practices from continuation." - Again, such a cursory treatment of an issue is not considered on appeal. Finally, Rude argues for the first time on appeal that an appropriate remedy "is to remove the entrenched directors and officers who have devised and implemented these schemes intended to maintain their grip on corporate control." But we have said we "will not address for the first time on appeal an issue the appellant failed to raise below," and so this claim for relief is waived. Alaska State Emps. Ass'n/AFSCME Local 52, AFL-CIO v. State, 74 P.3d 881, 886 (Alaska 2003). In his second appeal, aside from seeking to have his attorney's fees award reversed, Rude seeks to have the case remanded back to the superior court to have his Rule 60(b) motion reconsidered, to have his previously denied exhibits admitted, and to have New Alliance reinstated as a party. But these remedies all relate to a claim that is now moot and so will not be considered by this court.
. See Schweitzer v. Salamatof Air Park Subdivision Owners, Inc., 278 P.3d 1267, 1273 (Alaska 2012) ("To determine the prevailing party and resolve the attorney's fees issue we need only review the superior court's holding on what we determine is the 'main issue.' ").
. Chambers v. Briggs & Stratton Corp., 863 F.Supp. 900 (E.D.Wis.1994); Bertoglio v. Texas Intern. Co., 488 F.Supp. 630 (D.Del.1980).
. 863 F.Supp. 900 (E.D.Wis.1994).
. Id. at 902.
. Id. at 905.
. Henrichs v. Chugach Alaska Corp., 260 P.3d 1036, 1044 (Alaska 2011) ("Chugach was not required to include the former directors in the proxy statement because the board did not nominate them. And although Henrichs and Tabios were incumbent directors, Chugach was not required to include their names because their terms were scheduled to expire and therefore would not 'continue after the shareholders' meeting.' ").
. Goldstein v. Lincoln Nat'l Convertible Sec. Fund, Inc., 140 F.Supp.2d 424 (E.D.Pa.2001), vacated in part, appeal dismissed by Goldstein v. Lincoln Nat'l Convertible Sec. Fund, Inc., 2003 WL 1846095 (3d Cir. Apr. 2, 2003); Durkin v. Nat'l Bank of Olyphant, 772 F.2d 55 (3d Cir.1985).
. 3 AAC 08.335(c)(1).
. - Rude never argued common law fraud in the superior court, and we accordingly do not consider this argument. See Alaska State Emps. Ass'n/AFSCME Local 52, AFL-CIO v. State, 74 P.3d 881, 886 (Alaska 2003) ("We will not address for the first time on appeal an issue the appellant failed to raise below.").
. - See supra Part IV.A.2.
. We conclude that the first exception applies because CIRI, though it had general notice of New Alliance's intent, could not have known if the plan would be completed or what language New Alliance would use in the proposal. See 3 AAC 08.335(f)(1).
. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (internal quotation marks omitted).
. Id.
. AS 10.06.450(d) provides:
A director has the absolute right at a reasonable time to inspect and copy all books, records, and documents of every kind and to inspect the physical properties of the corporation or a domestic or foreign subsidiary of the corporation. Inspection by a director may be made in person or by agent or attorney and the right of inspection includes the right to copy and make extracts.
. Mielke v. Matanuska Elec. Ass'n, Mem. Op. & J. No. 1047, 2001 WL 34818260, at *2 (Alaska, Sept. 26, 2001) ("The public interest exception does not apply to this case [addressing the same issue] ... because applying the mootness doctrine would not create a circumstance in which the issues in Mielke's claim are subject to repetition yet continually evade review. It is possible that the issues disputed in Mielke's case could be repeated. Informational access to a quasi-public entity is arguably important to the public interest. - But it is readily conceivable that another director could bring suit to force MEA management to divulge sought-after information, and timely judicial review would be possible, assuming the plaintiff remained a director.")..
. See Mielke, 2001 WL 34818260, at *3.
. AS 10.06.430(b) provides:
A corporation organized under this chapter shall make its books and records of account, or*94 certified copies of them, reasonably available for inspection and copying at the registered office or principal place of business in the state by a shareholder of the corporation. Shareholder inspection shall be upon written demand stating with reasonable particularity the purpose of the inspection. The inspection may be in person or by agent or attorney, at a reasonable time and for a proper purpose. Only books and records of account, minutes, and the record of shareholders directly connected to the stated purpose of the inspection may be inspected or copied.
. State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980) (citing Lewis v. State, 469 P.2d 689, 691-92 n. 2 (Alaska 1970)) ("Failure to argue a point constitutes an abandonment of it."); see also Powercorp Alaska, LLC v. Alaska Energy Auth., 290 P.3d 1173, 1186 (Alaska 2012) (citing Hidden Heights Assisted Living, Inc. v. State, Dep't of Health & Soc. Servs., Div. of Health Care Servs., 222 P.3d 258, 270 n. 60 (Alaska 2009) and Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991)) (holding that inadequate briefing of a claim constitutes waiver).
. AS 45.55.160 ("A person may not, in a document filed with the [Commissioner of Commerce, Community, and Economic Development or a designee of the commissioner} or in a proceeding under this chapter, make or cause to be made an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.") - (substituted - language - from _ AS 45.55.990(1) (defining "administrator).
.. 3 AAC 08.315(a).
. Id.; see also Meidinger v. Koniag, Inc., 31 P.3d 77, 83 (Alaska 2001).
. 3 AAC 08.315(a).
. Skaflestad v. Huna Totem Corp., 76 P.3d 391, 397 (Alaska 2003).
. Meidinger, 31 P.3d at 84 (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)).
. Id.
. Id. (quoting Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1097, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991)).
. Id. at 83 (quoting TSC Indus., 426 U.S. at 450, 96 S.Ct. 2126) (internal quotations omitted).
. Meidinger, 31 P.3d at 84 (quoting TSC Indus., Inc., 426 U.S. at 449, 96 S.Ct. 2126).
. 43 U.S.C. § 1601(b) (2006).
. "All corporate powers shall be exercised by or under the authority of, and the business and affairs of a corporation shall be managed under the direction of, a board of directors except as may be otherwise provided in this chapter." AS 10.06.450(a).
. Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1198 n. 10 (Alaska 1995) (citing Alaska Int'l Constr., Inc. v. Earth Movers of Fairbanks, 697 P.2d 626, 629 (Alaska 1985)) ("[Plost hoc rationalizations are suspect and must be viewed critically, [although] they still may be considered.").
. See Skaflestad v. Huna Totem Corp., 76 P.3d 391, 397 (Alaska 2003); Meidinger, 31 P.3d at 84 (quoting TSC Indus., Inc., 426 U.S. at 449, 96 S.Ct. 2126).
. Schweitzer v. Salamatof Air Park Subdivision Owners, Inc., 278 P.3d 1267, 1273 (Alaska 2012) (explaining that the prevailing party is "the one who is successful on the main issue of the action and in whose favor the decision or verdict is rendered and the judgment entered" (internal quotation marks omitted) (quoting Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1092 (Alaska 2008))).
. Although the heading of this section of Rude's brief mentions costs as well as attorney's fees, he makes no arguments about costs in the body of his brief.
. - "Application of Rule 82(b)(3) factors is discretionary, not mandatory." Rhodes v. Erion, 189 P.3d 1051, 1055 (Alaska 2008)..
. Alaska R. Civ. P. 82(b)(3) provides:
The court may vary an attorney's fee award calculated under subparagraph (b)(1) or (2) of this rule if, upon consideration of the factors listed below, the court determines a variation is warranted:
(G) vexatious or bad faith conduct;
(I) the extent to which a given fee award may be so onerous to the non-prevailing party that*99 it would deter similarly situated litigants from the voluntary use of the courts;
(J) the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar, such as a desire to discourage claims by others against the prevailing party or its insurer; and
(K) other equitable factors deemed relevant.
. - Included in this argument is an allegation that CIRI perjured itself by "dissembl[ing] and misrepresent[ing] to the [superior] court that it did not use E-mail addresses" for campaign purposes. However, Rude did not argue this below and has thus waived it. See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) ("A party may not raise an issue for the first time on appeal.").
. See Lentine v. State, 282 P.3d 369, 381 (Alaska 2012) (A party's "characterization of her actions as an "innocent mistake' involves a question of fact that was litigated at trial, and the superior court's failure to consider it again in determining attorney's fees was not an abuse of discretion.").
.. Rude also argues that the superior court should have applied the equitable doctrine of unclean hands to reduce CIRI's attorney's fee award. But because his argument that CIRI's hands were unclean is premised on the claims of specific electoral misconduct by CIRI-claims that have no merit-his argument must also fail.
. See State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980) (citing Lewis v. State, 469 P.2d 689, 691-92 n. 2 (Alaska 1970) ("Failure to argue a point constitutes an abandonment of it.")).
. See supra note 67.
. See Little Susitna Constr. Co. v. Soil Processing, Inc., 944 P.2d 20, 29 (Alaska 1997) (noting that a losing party "hald] failed to explain, either below or on appeal, how [subsection IJ might apply to its situation, particularly since [the prevailing party] initiated the litigation and {[the losing party) made no 'voluntary use of the courts' ") (citing Rule 82(b)(3)(I)).
. Evidence Rule 403 allows a court to exclude relevant evidence "if its probative value is outweighed by the danger of unfair prejudice ... or by considerations of undue delay."
. - Rule 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal*101 representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(D)L.]
. Further, the disposition of this motion is moot. Resolving whether Rude's Rule 60(b) motion was improperly denied has no bearing on prevailing party status at this point.
. Anagick's signature is actually dated June 29, 2009, five days before she entered her appearance on behalf of New Alliance. Rude does not mention this in his argument that the superior court abused its discretion in entering the order, and so we will assume that the superior court was acting within its discretion to give after-the-fact effect to Anagick's signature.
. Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001).
. Martin v. State, 797 P.2d 1209, 1217 (Alaska App.1990).
. Id.
. Rude only objected after summary judgment had been granted and attorney's fees awarded. At that point, the only benefit that could inure to Rude in winning on this argument is that some portion of his award of attorney's fees could be apportioned to New Alliance.