Alaska Law Blog

In a case handled by Atkinson, Conway & Gagnon attorney Pat Gilmore, the Alaska Supreme Court recently affirmed the award of a disputed Alaska North Slope oil field "overriding royalty interest" (ORRI) to Rutter and Wilbanks Corporation, a client of the firm. Both the Alaska Supreme Court and the Superior Court agreed that Rutter and Wilbanks retained its interest in the ORRI despite surrendering its interest in the underlying operating entity. The extensive contract documentation drafted by a different law firm did not address the status of the ORRI upon surrender of a party's interest in the operating entity. The Superior Court and Alaska Supreme Court rejected arguments that the court could imply forfeiture of the ORRI based on the "reasonable expectations of the parties" and other legal theories. Renaissance Alaska, LLC v. Rutter and Wilbanks Corporation, Alaska Supreme Court Opinion No. 6613 (October 28, 2011) http://www.courts.alaska.gov/ops/sp-6613.pdf

Atkinson, Conway & Gagnon is featured in the current edition of the The Alaska Contractor magazine. The magazine is a publication of the Associated General Contractors of Alaska ("AGC").

Atkinson, Conway & Gagnon has been a member of AGC for decades. The firm's longstanding contruction law practice is discussed at length in the magazine article. "Founded in 1962, Atkinson, Conway & Gagnon boasts extensive experience in all phases of construction law. Its attorneys have represented contractors, architects, engineers, lenders, title insurance companies and property owners in both small residential and large commercial disputes."

The firm's lead constuction law attorney is Robert J. Dickson. As Mr. Dickson explains, "there are no simple cases" in construction disputes. "All involve big money." The firm's lawyers nevertheless endeavor to meet the client's needs in a business-like and effective manner. As attorney Bruce Gagnon states, "Clients come in, and we help them achieve their goals as efficiently and cost-effectively as possible. It's that simple."

Atkinson, Conway & Gagnon is pleased to announce that Office Manager Jodi L. Walton has achieved the certification of CLM.

Lest the uninformed mistakenly believe that “CLM” is being used in the Urban Dictionary sense of "Career Limiting Move" – e.g., chuckling at the Managing Partner’s bad comb over -- we assure that this is not the case. Rather, “CLM” as we use it here is a career improving move. The acronym actually stands for “Certified Legal Manager.”

The CLM certification is issued by the Association of Legal Administrators (“ALA”). To earn this distinction, a person must be employed full-time in managing a legal organization, must have at least three years experience in the management position, must complete a course of study in areas key to legal organization management, must pass an examination on those areas, must adhere to a code of ethics, and must commit to fulfilling continuing education requirements.

As the ALA explains, the CLM designation demonstrates that a legal administrator has “mastered the knowledge, skills and abilities to operate at a high level of expertise in the field of legal management.”

We could add that the achievement is a rare feat in the Alaska legal community, but we won’t bring that up because it might be perceived as just bragging.

Congratulations, Jodi L. Walton, CLM!

Atkinson Conway & Gagnon is proud of Alaska for many reasons, including the State’s willingness to innovate and be on the cutting edge of important issues. From the use of duct tape in aircraft repairs to proactively banning the use of tasers on bears, Alaska is always pushing boundaries forward. Alaska’s Court of Appeals is no different, as demonstrated by its recent decision in Bates v. State of Alaska, where the Court of Appeals eschewed the dictionary definition of “dating” in favor of the crowd-sourced definition of the term in Wikipedia and the eponymous Bonny’s Dating Blog, by Bonny Albo.

The specific legal issue in Bates was whether the defendant’s prior acts of domestic violence towards his ex-girlfriend were admissible when he was tried for attempting to murder that same ex-girlfriend. Resolving that issue required the Court to determine if the term “dating” as used in Alaska’s domestic violence statute had a “meaningful definition.”

The Court of Appeals began by recognizing that Webster’s New World College Dictionary’s definition could not be used to define the term “dating,” as its definition of “dating” included meeting a business associate or relative if the associate or relative were a member of the opposite sex. Accordingly, the Court turned to a more modern source: Wikipedia, which defined “dating” as “a form of human courtship consisting of social activities done by two persons with the aim of each assessing the other’s suitability as a partner in an intimate relationship or as a spouse.” The Court also relied on the definition of dating contained in Bonny’s Dating Blog, which defined “dating” as “an activity two people share together with the intention of getting to know each other better on a potentially romantic level.”

Unfortunately, the Court did not disclose the search history that led to these sites, or identify the definitions and sites that it declined to rely upon. For the curious, the State’s version of the Freedom of Information Act is located here.

Although odd at first glance, the Court’s explanation for its decision to rely, at least in part, on Wikipedia is cogent. The court recognized that in today’s society, there is a fluidity to cultural norms, such that relying on more up-to-date sources of information may be necessary in certain cases:

people can have quite different views as to what the word “dating” means – in large part, because the meaning of this word has been shifting in the past decades as our society has experienced changes in the relations between the sexes and the role of marriage as an institution.

In these circumstances, one could plausibly argue that Wikipedia offers one of the most accurate gauges of what the word “dating” now means in contemporary culture. The articles in Wikipedia are open to editing by essentially anyone with Internet access. The process of public input means that Wikipedia articles are subject to a type of “social Darwinism”.

The Court is correct. In today’s world, where seismic cultural shifts can occur in years, rather than generations, Courts must be willing to expand their horizons and look to new sources of information and understanding as to what constitutes a family, a relationship, or, as was the case in Bates, dating. And so once again, Alaska demonstrates a forward-looking approach, one that is grounded in the law and logic, but recognizes that sometimes change occurs so quickly that you need to look beyond traditional sources.

Domestic violence is a serious issue in Alaska. That is why Atkinson Conway & Gagnon works with the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA) to provide pro bono legal assistance to abused women who are seeking long-term protective orders. The work is rewarding, and necessary. These are women who, through no fault of their own, are put in horribly difficult situations and need assistance with the legal system at a critical time. If you are interested in assisting ANDVSA, please contact Christine Pate at 907-747-7545 or give us a call at 907-276-1700. We would be happy to discuss our experience working the ANDVSA, the types of cases we have been involved in, and time and effort required.

Atkinson, Conway & Gagnon attorney Neil O'Donnell recently successfully represented Luis Lopez – a 10-year Army service member – in his legal quest to become a U.S. citizen. Mr. Lopez was brought to the United States from Mexico by his parents as an eight-year-old child. After attending school in California, Mr. Lopez enlisted in the Army with a false birth abstract. He subsequently served three combat tours in Iraq and Afghanistan and received numerous awards and medals. After he disclosed and attempted to remedy his illegal immigration status, the Army began discharge proceedings against him and an Army personnel manager characterized his military service for the purpose of his immigration application as "not honorable" because of the circumstances of his original enlistment. Mr. Lopez's commanding officer, however, "strongly recommended that SSG Lopez [be] awarded United States Citizenship for his commitment and service to the United States of America." Mr. Lopez's naturalization application was ultimately approved and Mr. Lopez took the oath of citizenship on February 9, 2011. Mr. O'Donnell represented Mr. Lopez on a pro bono basis. The Wall Street Journal published an article about Mr. Lopez's legal journey on February 10, 2011: "Soldier Finds Minefield on Road to Citizenship" http://online.wsj.com/article/SB10001424052748704570104576124091336851306.html

The Alaska and American Bar Associations encourage all attorneys to provide pro bono legal services to the community and people in need. Atkinson Conway & Gagnon has made a concerted effort to fulfill its obligation to the community by partnering for the last five years with the Alaska Network on Domestic Violence and Sexual Assault and provide pro bono legal representation to victims of domestic assault who are seeking long term protective orders. In 2010, Atkinson Conway & Gagnon donated over 90 hours of legal assistance in the course of representing victims of domestic violence. Over the past five years, Atkinson Conway & Gagnon has donated over 294 hours in representing these victims.

The Alaska Network on Domestic Violence is an invaluable resource to the community. Made up of 17 programs, the Alaska Network on Domestic Violence provides services to victims of domestic violence and sexual assault, including emergency shelter, 24-hour crisis hotlines, food, clothing, transportation, legal assistance, counseling, and community education. The Alaska Network on Domestic Violence’s website contains valuable information for victims of domestic violence, including many links to additional information available on the web.

The Alaska Court System also provides helpful information to individuals seeking protective orders at its Family Law Self-Help Center. The Family Law Self-Help Center provides links to the forms needed to obtain a protective order as well as a good description of the process.

‘Tis the season, all right. The season for a whole banker's box full of Alaska law-related proceedings and topics, any one of which would be worthy of deep analysis and serious discussion in a blog posting.

We’ve got the Alaska Supreme Court rejecting Joe Miller’s challenge to the State’s vote counting. Sad to say this likely won’t be last of the saga as Mr. Miller and crew will no doubt head back to Judge Beistline in federal court to make another run at constitutional claims. You know, Bush v. Gore stuff. (Anyone remember that case? According to the commentators, the U.S. Supreme Court seemingly does not.) In my view, Joe is earning his new title: Joe Miller, R – LaMancha.

Then there is the self-appointed head of the Alaska Peacemakers Militia going into court in Fairbanks. Although the guy was there on a weapons related charge, he sought to turn the tables by serving papers on the judge to charge the judge with a crime. The judge wisely set a trial date quickly, gaveled the proceedings to an end, and ducked out the back. A recent article in the Anchorage Press described the militia members’ off-kilter philosophy.

And we’ve got the still brewing fight over the SBA’s 8(a) program that is designed to benefit Alaska Native corporations (among others). A recent article by ProPublica raised some issues about how the program actually worked out in one particular instance. This is unfortunately going to be used by the 8(a) opponents in Congress to try to end the program, or at least end the special rules for Native corporations who are in it. And I expect that, when Murcowski, Leeza (come on, Joe, you know who I mean) stands up to defend the program in Congress, we are going to see another allegation from The Alaska Standard that she has been bought and paid for by the Native corporations. (But I don’t know what they will say about Begitch, Mack and Yung, Dan, when they also inevitably defend the program.)

The truth, however, is that I don’t want to write a blog post about any of these serious topics. After all, this is the 2010 gala holiday edition of the Alaska Law Blog. For this blog posting I’m in the mood for something uplifting and lawyer-affirming.

Which brings me to this bit of positive news. A lawyer in California did an invaluable service to his client by citing the judge to an old Seinfeld rerun. It seems the client was locked up in the clink but did not care for the salami sandwiches the good jailer was serving. The client was a healthy lifestyle kind of guy (aside from the jail problem), and he wanted better nutrition in the form of kosher meals that were available to Jewish prisoners. The judge was sympathetic to the prisoner – amazing in itself – but pointed out that the client was not actually Jewish. The client offered the religion of “Healthism” as an alternative, but the judge rejected this because even he recognized it was made up on the spot. At this point the lawyer spoke up to offer “Festivus,” the non-denominational holiday that was the subject of a Seinfeld episode some years back. The judge accepted this suggestion as a legally sufficient "religion" to justify ordering the jailer to provide kosher meals to the client. (At least, the jailer had to do so until the client was shifted to the federal gaol a short while later for immigration violations and likely deportation.)

So there we have it. A lawyer down in the trenches using his wits and many years of fine education to serve his client in need by reminding the judge of something he saw on TV years ago. (“Festivus” even sort sounds like it’s Latin.) What could be more heart-warming than that?

Now, the fact this court hearing took place back in October, but the story did not hit the papers until just a few days ago, that I can only attribute to a “Festivus miracle.”

Collecting a judgment can be a real pain. The paperwork can be daunting to the uninitiated. A mistake in the smallest of details can trip you up in getting the official machinery moving in your direction, especially since the Alaska Court System can be slow to process execution packages even when everything is in order.

It seems like an odd sort of problem to have. The whole point of the civil justice system is to give private parties an effective dispute resolution procedure so that they don’t settle things out in the streets. In view of that aspiration, you might think that making use of the ultimate hammer – execution – would be looked upon with favor. I mean, the claims have already been fully adjudicated before a judgment even gets entered. What more is there to decide?

But this is not the view the Court System or even the Alaska Legislature seems to have. There always seems to be another hurdle to overcome, another exemption to adjudicate, or a waiting period to hold things up just a little while longer. The extra time and expense it takes to collect just bogs down the whole process and, in some instances, makes enforcement of the judgment impractical.

It wasn’t always this way. Some decades back the courts actually thought they should be pro-active in enforcing their determinations. But things started to tighten up in the 60s when the U.S. Supreme Court began utilizing the due process clause to put the clamps on abbreviated enforcement procedures. Since then, the collection of judgments has gotten more difficult.

One could hope that it is about time for the pendulum to start to swing back the other direction. Why can’t execution packages be processed more expeditiously? Is any purpose really served by the rule that only one writ of execution can be outstanding at a time, since all collections have to be deposited in the court registry anyway? Are all the exemptions to execution really justified?

(The Ninth Circuit’s recent decision in Peterson v. CMA CGM is what got me thinking about these issues. The plaintiffs in Peterson recovered a $2.6 billion judgment (that's billion with a "b") against Iran over Iran’s participation in the 1983 bombing of the U.S. Marines’ barracks in Lebanon. The plaintiffs sought to collect part of this huge judgment by executing on an obligation that a French shipping company owed to Iran. The Nines held that the execution was invalid because the French company’s obligation was not “property in the United States,” even though the French company did business here and was subject to personal jurisdiction here. And it reached this conclusion even though immunity had not been plead as a defense to execution but was raised by the court on its own. You know executing on a judgment is tough sledding when the courts prevent doing so in an case of state-sponsored terrorism.)

Atkinson, Conway & Gagnon is pleased to announce that Sarah A. Marsey has joined the firm as an associate attorney.

Ms. Marsey is a 2010 graduate of Rutgers School of Law. She also holds a B.A. degree in political science from San Francisco State University.

At Rutgers, Ms. Marsey competed in moot court and appellate advocacy. She received the school's Nathan N. Schildkraut Award for excelling in appellate advocacy, taking first place in the David Cohn Appellate Advocacy Competition. She was a member of the Rutgers National Appellate Advocacy Competition team. Ms. Marsey was also an editor of the Rutgers Business Law Journal.

During her law school career, Sarah Marsey worked in the New York County District Attorney’s Office and was a judicial intern to the U.S. District Court in New Jersey. She also worked in the offices of a large national law firm.

Ms. Marsey will be part of Atkinson, Conway & Gagnon’s civil litigation practice.

Atkinson, Conway & Gagnon is pleased to announce that Bruce E. Gagnon has been named as the “Anchorage Best Lawyers Bet-the-Company Litigator of the Year” for 2011.

The honor was conferred by The Best Lawyers in America, the oldest and most respected peer-review publication in the legal profession. After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities. Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”

The lawyers being honored as “Lawyers of the Year” have received particularly high ratings in surveys by earning a high level of respect among their peers for their abilities, professionalism, and integrity.

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 17th edition of The Best Lawyers in America (2011) is based on more than 3.1 million detailed evaluations of lawyers by other lawyers.

Steven Naifeh, President of Best Lawyers, issued the following statement about Mr. Gagnon's honor: “We continue to believe – as we have believed for more than 25 years – that recognition by one’s peers is the most meaningful form of praise in the legal profession. We would like to congratulate Bruce E. Gagnon on being selected as the ‘Anchorage Best Lawyers Bet-the-Company Litigator of the Year’ for 2011.”

ACG lawyer Robert J. Dickson has been elected as a director of The Alaska Support Industry Alliance. The election took place at the group's annual meeting held in Anchorage on October 7.

The Alliance is a trade organization that represents nearly 500 companies and some 40,000 Alaskan workers providing goods and services to the oil, gas and mining industries. The Allliance was founded in 1979 and works for responsible oil, gas and mining development in the state.

Bob Dickson will serve a three year term as Director of The Alliance. He is one of 21 directors of the organization. Mr. Dickson has previously served as a director for the entity.

A member of Atkinson, Conway & Gagnon since 1972, Mr. Dickson handles complex litigation matters primarily involving the areas of construction litigation, including design professional malpractice defense, and health care law, including medical malpractice defense. He holds an “AV” peer review rating in Martindale-Hubbell. Bob Dickson has been listed in the Best Lawyers in America since 1995, and in 2007 was named an Alaska Super Lawyer by Washington Law and Politics magazine.

Mr. Dickson received his B.A. degree in 1969 from the Northwestern University. He received his Juris Doctorate in 1972 from the University of Illinois.

I’ve found a few minutes to make some notes updating prior posts here on the Alaska Law Blog.

(Hey, I’ve been distracted. Inspired by legal work I did for a couple of local entrepreneurs, I got to brainstorming ideas for possible new products for the unique Alaska market. Like one that consists of SAD lights with mudflap silhouettes stuck on them. Could be a seasonal big seller!)

H-P v. Hurd. I wrote about H-P’s bold lawsuit against its former CEO Mark Hurd just a few weeks ago. H-P apparently wasn’t all that serious about the case, seeing as how it was going to be a tough one to win anyway. H-P quickly settled with Hurd. Hurd has to give back some 350,000 H-P shares (worth maybe $14 million) that he received in his H-P severance package.

It seems like kind of a strange result to me. H-P was supposedly worried about Hurd using its own confidential information in competing against it. One thing that might have blunted such action on Hurd’s part would be the knowledge that he owned a financially significant stake in the company. Giving back the stock just removes this governor on his conduct. Hurd can now use everything he knows about H-P against it, without being worried about impacting his own financial interests.

Arbitration. Quite a while back I posted a piece about how I dislike arbitration clauses in contracts. A recent example illustrates my point. In Lagstein v. Certain Underwriters at Lloyd's London, a doctor bought a $900,000 disability policy. When the insurer didn’t pay the disabled doctor, he pursued a recovery in arbitration as authorized under the policy. The arbitrators did not care for the Lloyd’s folks stiffing the doc. They awarded something like $6 million in favor of the doctor on his $900,000 policy.

The District Court judge said that he was “shocked” by the size of the award and he tried to chop it down. The Ninth Circuit held the District Court judge’s “shock” was irrelevant and re-instated the arbitrators’ award. The Nines said: “A district court may not vacate an arbitration award simply because of its size.” The Nines also noted that, even though some mistakes were made by the arbitrators in reading the disability policy, this wasn’t enough to warrant setting aside the award.

Now, I’m not saying that the Lloyd’s underwriters did not deserve a swift kick in the tuckus for refusing to honor their policy. I’m just pointing out that it is very, very hard to overturn an arbitration decision. Even in cases where the judge might think for good reason the arbitrators have gone too far, the court is going to feel compelled to uphold the result. So think twice (or thrice) before inserting an arbitration clause in any contract.

Toyota Motors v. Tabari. I wrote a piece about this opinion from Judge Kosinski, focusing on the treatment he gave Toyota’s lawyers, which was unusual to say the least. Some IP legal wonks have also chimed in on the decision, focusing more on the hardcore IP issues it presents. (IP = intellectual property) Their comments get into some nuances of the opinion. But I think the blog post of Santa Clara law prof Eric Goldman best summarizes the IP view of the decision:

This is a rich and multi-faceted opinion written in a confident and emphatic style…perhaps too emphatically, as the opinion swings around like a bull in a china shop, breezily overturning or sidestepping numerous 9th Circuit precedents on both domain names and nominative use.

His blog post is well worth reading to understand how the decision fits into the bigger scheme of things in IP law.

(Now, back to the Alaska product development. How about snow tires with retractable studs? I have no idea how to make it work -- electromagnets?? -- but this invention might keep the Seward and Glenn Highways from developing those alarming wheel ruts every winter.

What!? You think maybe I’ve got cold, snow and dark on the brain right now?)