Credit Bureau Servs. v. Experian Info. Solutions

526 	285 NEBRASKA REPORTS
C redit Bureau ServiCeS, inC., a neBraSka Corporation,
appellant and CroSS-appellee, v. experian information
SolutionS, inC., an ohio Corporation,
appellee and CroSS-appellant.
828 N.W.2d 147
Filed March 22, 2013. 	No. S-12-107.
1. Statutes. Statutory interpretation presents a question of law.
2. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
3. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
Appeal from the District Court for Dodge County: G eoffrey
C. hall, Judge. Affirmed.
Jonathan L. Rubin, of Rubin, P.L.L.C., and Thomas B.
Thomsen, of Sidner, Svoboda, Schilke, Thomsen, Holtorf,
Boggy, Nick & Placek, for appellant.
Michael F. Coyle and Patrick S. Cooper, of Fraser Stryker,
P.C., L.L.O., and Thomas Demitrack, Brian K. Grube, Meir
Feder, and David Cooper, of Jones Day, for appellee.
heaviCan, C.J., WriGht, C onnolly, Stephan, mCC ormaCk,
miller-lerman, and CaSSel, JJ.
miller-lerman, J.
NATURE OF CASE
Credit Bureau Services, Inc. (CBS), brought this case
against 	Experian 	Information 	Solutions, 	Inc. 	(Experian),
alleging that Experian sought to drive CBS out of business in
violation of Neb. Rev. Stat. § 59-805 (Reissue 2010), which
is a provision of Nebraska’s antitrust act, known as the Junkin
Act. See Neb. Rev. Stat. §§ 59-801 to 59-831 (Reissue 2010).
After a jury trial, the district court for Dodge County entered
judgment on a jury verdict in favor of Experian and against
CBS. CBS appeals, claiming that the district court erred when
it gave jury instruction No. 5 and refused CBS’ competing
proposed jury instruction. Experian cross-appeals, claiming
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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CREDIT BUREAU SERVS. v. EXPERIAN INFO. SOLUTIONS 	527
Cite as 285 Neb. 526
that the district court erred when it overruled Experian’s
motion for directed verdict. Given the elements of § 59-805
which we explain below, we determine that the district court
erred when it overruled Experian’s motion for directed ver-
dict. Although our reasoning differs from that of the district
court, the entry of judgment in favor of Experian was correct
and we affirm.
STATEMENT OF FACTS
Experian is one of three nationwide repositories of consumer
credit information. These three companies gather and store
consumer credit information on a nationwide basis and sell that
information either to end users, such as banks, or to resellers
which sell the information to end users. CBS was a reseller
of specialized credit reports to the mortgage industry and is
located in Fremont, Nebraska. As a general matter, a report
referred to as a “Tri-merge report,” which combines data from
the three companies, is required by some lenders, including
federal lenders.
CBS began purchasing credit reports from Experian in
the 1990’s. In 2000, Experian imposed a minimum purchase
requirement of $250 per month. Because CBS had a low
volume of transactions, it moved its business to an Experian
affiliate that did not impose a minimum purchase requirement.
In 2003, Experian purchased the consumer credit operations of
its affiliate and began servicing CBS again. In 2004, Experian
informed CBS that it would impose a minimum purchase
requirement of $1,000 per month. CBS then moved its business
to another Experian affiliate. In 2007, Experian purchased the
consumer credit operation of that affiliate and resumed serving
CBS in February 2007. In 2011, Experian completed the buy-
out of its last remaining affiliate.
As noted, CBS resumed purchasing data from Experian in
February 2007 and continued to do so until October 2008,
when Experian dropped CBS as a customer because of CBS’
past-due balance. CBS asserted that the past-due balance arose
after Experian had imposed a new minimum purchase require-
ment of $5,000 per month. CBS contends that the increased
minimum purchase requirement by Experian was part of a plan

528 	285 NEBRASKA REPORTS
to “thin the ranks of smaller credit reporting agencies” and that
CBS was a victim of the plan. Brief for appellant at 14. CBS
asserted that the plan was successful because in 2000, there
were more than 400 local and regional credit reporting resellers
nationwide, and by December 2011, there were only 60 nation-
wide and none in Nebraska.
CBS filed this civil action against Experian in the district
court under § 59-821, which provides:
Any person who is injured in his or her business or
property by any other person or persons by a violation of
sections 59-801 to 59-831 . . . may bring a civil action in
the district court in the county in which the defendant or
defendants reside or are found . . . .
CBS alleged that Experian violated § 59-805, which provides:
Every person, corporation, joint-stock company, lim-
ited liability company, or other association engaged in
business within this state which enters into any contract,
combination, or conspiracy or which gives any direction
or authority to do any act for the purpose of driving out
of business any other person engaged therein . . . shall be
deemed guilty of a Class IV felony.
Sections 59-805 and 59-821 are part of Nebraska’s antitrust
act, known as the Junkin Act. See §§ 59-801 to 59-831.
A 4-day jury trial was conducted. During trial, CBS called a
total of six witnesses, one of whom testified by written depo-
sition, and two of whom appeared by video deposition. CBS
submitted and the court received 37 exhibits. The video evi-
dence is not in the record. CBS essentially attempted to prove
that Experian engaged in a plan called Project Green, which
had among its objectives driving out resellers. CBS points to
the fact that after Experian increased the minimum purchase
requirement as a part of Project Green, 160 resellers canceled
their business with Experian.
After CBS rested its case, Experian moved for directed
verdict, which the district court denied. Experian called one
witness, and it submitted and the court received 42 exhibits.
Experian attempted to establish that it increased its charges
for the purpose of improving data security and compliance
with the Fair Credit Reporting Act. See 15 U.S.C. § 1681 et

CREDIT BUREAU SERVS. v. EXPERIAN INFO. SOLUTIONS 	529
Cite as 285 Neb. 526
seq. (2006). After Experian rested its case, it again moved for
directed verdict, which the district court denied.
A jury instruction conference was conducted in which the
district court rejected several of CBS’ proposed instructions.
The district court instructed the jury in this case on its under-
standing of the elements of § 59-805 with its jury instruction
No. 5. The court rejected CBS’ proposed jury instruction No.
12. The court gave commonplace instructions on evidence,
both circumstantial and direct.
On December 16, 2011, the case was submitted to the jury at
6:30 p.m. and the jury returned a verdict in favor of Experian
at 7:50 p.m. On January 4, 2012, the district court entered
judgment on the jury’s verdict for Experian.
The district court’s order filed January 19, 2012, granted,
in part, Experian’s motion to alter or amend judgment. In this
order, the district court modified its January 4 order, stating
that CBS shall pay Experian’s taxable costs in the amount of
$3,921.57. On February 8, the district court entered an order
overruling CBS’ amended motion for new trial. CBS appeals,
and Experian cross-appeals.
ASSIGNMENTS OF ERROR
CBS assigns, restated, that the district court erred when it
(1) gave jury instruction No. 5 and (2) failed to instruct the
jury consistent with CBS’ proposed jury instruction No. 12.
On 	cross-appeal, 	Experian 	assigns, 	restated, 	that 	the
district court erred when it denied Experian’s motion for
directed verdict.
STANDARDS OF REVIEW
[1] Statutory interpretation presents a question of law.
Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d
409 (2013).
[2] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law. American Central City
v. Joint Antelope Valley Auth., 281 Neb. 742, 807 N.W.2d
170 (2011).

530 	285 NEBRASKA REPORTS
[3] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides. InterCall, Inc.
v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
ANALYSIS
In this case, the district court provided the jury with jury
instruction No. 5, which set forth the district court’s descrip-
tion of the elements the jury was required to find in order to
find in favor of CBS on its claim under § 59-805. CBS claims
on appeal that the district court prejudicially erred when it
gave instruction No. 5, because it misstated the law under
§ 59-805. CBS’ motion for new trial encompassed this claimed
error, so CBS effectively contends that the district court erred
when it denied CBS’ motion for new trial. On cross-appeal,
Experian claims that the district court erred when it denied its
motion for directed verdict made at the close of the evidence.
We agree with Experian that the district court erred when it
denied Experian’s motion for directed verdict, and therefore
we do not reach CBS’ assertion that instruction No. 5 mis-
stated the law and comment only that a proper jury instruction
on the elements of § 59-805 should comport with our discus-
sion of § 59-805 in this opinion.
Elements of § 59-805.
We have not previously enumerated the elements of a cause
of action based on the allegation that a defendant acted with
the purpose of driving the plaintiff out of business under
§ 59-805. Section 59-805 provides:
Every person, corporation, joint-stock company, lim-
ited liability company, or other association engaged in
business within this state which enters into any contract,
combination, or conspiracy or which gives any direction
or authority to do any act for the purpose of driving out
of business any other person engaged therein . . . shall be
deemed guilty of a Class IV felony.
The balance of the statute is in the alternative and refers to
competition and underselling, and thus it is not applicable to
this case. See Pierce Co. v. Century Indemnity Co., 136 Neb.
78, 285 N.W. 91 (1939).

CREDIT BUREAU SERVS. v. EXPERIAN INFO. SOLUTIONS 	531
Cite as 285 Neb. 526
The language of § 59-805 establishes the elements which a
plaintiff such as CBS must prove. The elements relating to the
form of company, engaging in business, presence in Nebraska,
and contract, combination, or conspiracy are fairly obvious.
However, we must determine the contours of the elements
represented by the phrase in § 59-805 requiring the doing of
“any act for the purpose of driving out of business any other
person engaged therein.” In construing § 59-805, we recognize
that it is a part of the Junkin Act, and therefore we look to
the Junkin Act as a whole. Section 59-829 of the Junkin Act
is known as the harmonizing statute. Section 59-829 provides
that when a provision of the Junkin Act is the same or similar
to the language of a federal antitrust law, the courts of this state
in construing such section or chapter shall follow the construc-
tion given to the federal law by federal courts. However, we
note that § 59-805 is unusual among state statutes and there
is no federal equivalent statute. Compare: § 59-801 equates
to Sherman Act § 1 (restraint of trade), and § 59-802 equates
to Sherman Act § 2 (antimonopoly). See 15 U.S.C. § 1 et
seq. (2006).
In Pierce Co. v. Century Indemnity Co., supra, we analyzed
the predecessor statute of § 59-805 in a case where the plain-
tiff brought an action against the defendants to recover for
damages for an alleged conspiracy to drive the plaintiff out of
business. In Pierce Co., we noted that the predecessor statute
to § 59-805 was located in article 8 and that
Article 8 is entitled “Unlawful Restraint of Trade” and is
patterned after the antitrust laws of the federal govern-
ment, i.e., the Sherman [Act] and [the] Clayton [Act],
with the exception that the Nebraska law is broader and
provides protection against commerce (intrastate) as such,
and in addition provides that any attempt to drive another
person (corporation) out of business is unlawful.
136 Neb. at 80, 285 N.W. at 93-94.
Like its predecessor statute, § 59-805 is located in article
8, currently entitled “Unlawful Restraint of Trade.” Pierce Co.
is instructive because we noted therein that the Legislature
patterned Nebraska’s antitrust laws after the federal antitrust
laws, except that Nebraska’s law is broader in the sense that

532 	285 NEBRASKA REPORTS
it protects intrastate commerce and contains § 59-805, which
makes it unlawful to drive another entity out of business. In
this regard, we note that unlike certain areas of federal anti-
trust law which limit complaints to competitors, it has been
determined that § 59-805 applies to complaints between a
producer and a supplier. See Oak Grove Farm Ltd. Partnership
v. ConAgra Inc., 105 F. Supp. 2d 1064, 1067 (D. Neb. 2000)
(interpreting § 59-805 of Nebraska law and stating that “giving
the words of the statute their ordinary meaning and reading all
portions of the statute together to make them consistent, . . .
§ 59-805 applies to contracts entered into between a producer
and a supplier”).
In this case, we must specifically consider the phrase in
§ 59-805 which prohibits the giving of “any direction or
authority to do any act for the purpose of driving out of busi-
ness any other person engaged therein.” (Emphasis supplied.)
Both parties agree that despite the language of § 59-805, the
expression “any act” cannot mean “all acts” tending to drive
another out of business, because such an interpretation would
be too broad. We must give the expression “any act” a sen-
sible construction. See State v. Magallanes, 284 Neb. 871, 824
N.W.2d 696 (2012).
In Hompes v. Goodrich Co., 137 Neb. 84, 288 N.W.
367 (1939), we stated that a person may do business with
whomsoever he or she desires, and that a person may like-
wise refuse business relations with any person whomsoever,
whether the refusal is based on reason, whim, or prejudice.
In Ploog v. Roberts Dairy Co., 122 Neb. 540, 543, 240 N.W.
764, 765 (1932), we stated that it is “‘elementary law that
a trader could buy from whom he pleased and sell to whom
he pleased, and that his selection of seller and buyer was
wholly his own concern.’” (Quoting Great Atlantic & Pacific
Tea Co. v. Cream of Wheat Co., 227 F. 46 (2d Cir. 1915).)
Accordingly, despite the expression “any act” in § 59-805,
the statute cannot logically include all acts of the defendant
which have the effect of driving an entity out of business. As
discussed below, the act must be intended to drive an entity
out of business.

CREDIT BUREAU SERVS. v. EXPERIAN INFO. SOLUTIONS 	533
Cite as 285 Neb. 526
In determining which types of acts of a defendant are
included under § 59-805, we turn to a case from the Idaho
Supreme Court, which analyzed a statute similar to § 59-805.
In Woodland Furniture, LLC v. Larsen, 142 Idaho 140, 124
P.3d 1016 (2005), the Idaho Supreme Court initially deter-
mined that Idaho’s unfair competition statute which was in
effect when the plaintiff filed its complaint applied to the case
although it had since been repealed. Similar to Nebraska’s
§ 59-805, the former version of the Idaho statute “prohibited
any person engaged in business in Idaho from ‘enter[ing] into
any contract, combination or conspiracy . . . for the purpose
of driving out of business any other person engaged therein.’”
142 Idaho at 146, 124 P.3d at 1022.
Construing the Idaho statute similar to Nebraska’s § 59-805,
the Idaho Supreme Court stated the statute requires as an ele-
ment that the defendant intend to drive the plaintiff out of busi-
ness. The Idaho Supreme Court reasoned that
[the] statute requires a claimant to show a purpose to
drive another out of business, reflecting the notion that
unfair competition laws were enacted to protect competi-
tion, not competitors. . . . [The statute] strikes the balance
between free competition and fair competition by offering
relief only where a company can show a competitor’s
intent to drive the company out of business, rather than
simply an intent to compete.
142 Idaho at 146, 124 P.3d at 1022 (emphasis supplied).
Because of an absence of evidence to support the plaintiff’s
claim that the defendant had an intent to drive the plain-
tiff out of business, the Idaho Supreme Court affirmed the
trial court’s judgment in favor of the defendant under the
Idaho statute.
We agree with the reasoning of the Idaho Supreme Court,
and determine that the phrase in § 59-805 which prohibits
a defendant from doing “any act for the purpose of driving
out of business” means that the prohibited act must be done
with the purpose to drive the plaintiff out of business. Section
59-805 protects competition, not competitors; it is directed
at unfair competition. See Woodland Furniture, LLC, supra.

534 	285 NEBRASKA REPORTS
The statute reaches intentional predatory conduct which has
no purpose other than to drive another entity out of business.
In this regard, we note that we have previously considered
intent and recognized that intent under the Junkin Act may be
proved by circumstantial evidence. See Hompes v. Goodrich
Co., 137 Neb. 84, 288 N.W. 367 (1939) (stating that alleged
overt acts may in themselves be lawful, but evidence as whole
may show that intent of alleged wrongdoer is to accomplish
result prohibited by statute). Thus, in order for the plaintiff
to succeed on a claim under § 59-805, the plaintiff must
show that the defendant intended to drive the plaintiff out
of business.
Experian contends that for a defendant to drive a plaintiff
“out of business” as that phrase is used in § 59-805, the plain-
tiff’s business must no longer be in operation. Experian asserts,
“[t]he phrase ‘out of business’ has a well-understood meaning:
that the company no longer operates.” Brief for appellee at 17.
Experian argues that “out of business” cannot refer to just a
portion of the plaintiff’s business or a line of business, because
such a definition of business would be too narrow. We gener-
ally agree.
Absent a statutory indication to the contrary, words in a
statute will be given their ordinary meaning. State v. Parks,
282 Neb. 454, 803 N.W.2d 761 (2011). When § 59-805
was enacted, and today, the ordinary meaning of the phrase
“out of business” would be a complete cessation of business
operations. Under § 59-805, for liability to attach, the plain-
tiff must show that the defendant acted with the purpose that
plaintiff’s business should cease. See State, ex rel. Spillman
v. Interstate Power Co., 118 Neb. 756, 226 N.W. 427 (1929)
(describing concept of destroying another entity’s business)
(superseded by statute on other grounds as stated in Omaha
Pub. Power Dist. v. Nebraska Dept. of Revenue, 248 Neb.
518, 537 N.W.2d 312 (1995)). In sum, in order for a plaintiff
to successfully bring a claim that a defendant drove it out
of business under § 59-805, the plaintiff must show that the
defendant is a person, corporation, joint-stock company, lim-
ited liability company, or other association which is engaged
in business within Nebraska and that the defendant gives any

CREDIT BUREAU SERVS. v. EXPERIAN INFO. SOLUTIONS 	535
Cite as 285 Neb. 526
direction or authority to do any act with the intent and for the
purpose of driving the plaintiff out of business.
Cross-Appeal: The District Court Erred
When It Denied Experian’s Motion
for Directed Verdict.
In its cross-appeal, Experian argues that its motion for
directed verdict made at the close of CBS’ case and renewed
at the close of all the evidence should have been sustained,
because CBS failed to prove that Experian engaged in an “act”
for the purpose of driving CBS out of business under § 59-805
and CBS failed to prove its lost profits with reasonable cer-
tainty. We find merit to Experian’s assignment of error on
cross-appeal regarding “driving out of business.”
We have stated that a directed verdict is proper only when
reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be
decided as a matter of law. Lesiak v. Central Valley Ag Co-op,
283 Neb. 103, 808 N.W.2d 67 (2012) (quoting American
Central City v. Joint Antelope Valley Auth., 281 Neb 742,
807 N.W.2d 170 (2011)). As stated above, on a claim that a
defendant drove the plaintiff out of business under § 59-805,
the plaintiff must show that the defendant gave direction or
authority to act with the intent and for the purpose of driving
the plaintiff out of business. Also as stated above, § 59-805
applies to the business relationship at issue, which in this case
involves Experian’s providing data for resale by CBS. See Oak
Grove Farm Ltd. Partnership v. ConAgra Inc., 105 F. Supp. 2d
1064 (D. Neb. 2000).
Experian argues that CBS did not provide evidence Experian
engaged in an act which violated § 59-805 and that there-
fore, the district court erred when it did not grant Experian’s
motion for directed verdict. In the present case, evidence was
adduced at trial regarding Experian’s Project Green. As part
of Project Green, Experian increased the minimum monthly
purchase requirement for mortgage-related purchases. CBS
contends that Experian implemented Project Green in order to
drive out of business a number of the resellers such as CBS
who could be viewed collectively as competitors of Experian’s

536 	285 NEBRASKA REPORTS
largest reseller customer, “First American.” CBS explains that
Experian’s ultimate motivation behind Project Green was to
take steps to avoid dilution of the “Tri-merge norm” in the
retail market for mortgage credit reports. That is, by imple-
menting Project Green, First American would prosper as a
reseller and Experian could prevent the entry of First American
or another fourth repository into the wholesale market for
mortgage credit information.
Experian 	argues 	that 	CBS’ assertions 	regarding 	Project
Green are based on speculation and have no factual support in
the evidence presented by both CBS and Experian. Experian
presented evidence that the increased fees it charged CBS asso-
ciated with Project Green were designed specifically to further
secure Experian’s data, reduce the risk of any mishandling
of Experian data by resellers and their customers, and ensure
reseller compliance with Experian’s policies. Experian also
contends that the evidence shows that the reduction in the num-
ber of resellers is a collateral outcome of its heightened effort
to comply with various reporting statutes. Experian argues that
the increased charges were not for the purpose of driving CBS
out of business. Experian contends that because CBS failed to
show that Experian engaged in an act in violation of § 59-805,
the district court erred when it did not grant its motion for
directed verdict.
Given the evidence admitted at trial, we determine that on
this record, reasonable minds could not differ and there is
not more than one conclusion which can be drawn from the
evidence. Based on the evidence, it cannot be concluded that
Experian acted with the sole intent to drive CBS out of busi-
ness. We find merit to Experian’s cross-appeal and determine
that the trial court erred when it overruled Experian’s motion
for directed verdict.
CONCLUSION
We determine that the district court erred when it overruled
Experian’s motion for directed verdict. We need not reach the
remaining assignments of error on appeal and cross-appeal,
except to comment that a jury instruction on the elements of
§ 59-805 should comport with the analysis set forth in this

STATE v. MCCLAIN 	537
Cite as 285 Neb. 537
opinion. Although our reasoning differs from that of the district
court, the entry of judgment in favor of Experian was not error.
Accordingly, we affirm.
affirmed.
State of neBraSka, appellee, v.
dontaviS mCC lain, appellant.
827 N.W.2d 814
Filed March 22, 2013. 	No. S-12-256.
1. Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion.
2. Trial: Expert Witnesses: Pretrial Procedure: Notice. A challenge to the admis-
sibility of evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), should take the form of a concise
pretrial motion. It should identify, in terms of the Daubert and Schafersman fac-
tors, what is believed to be lacking with respect to the validity and reliability of
the evidence and any challenge to the relevance of the evidence to the issues of
the case.
3. Trial: Evidence: Appeal and Error. To preserve a challenge on appeal to the
admissibility of evidence on the basis of Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), a litigant must object on
that basis and the objection should alert the trial judge and opposing counsel as
to the reasons for the objections to the evidence.
4. Motions to Suppress: Confessions: Constitutional Law: Appeal and Error.
In reviewing a trial court’s ruling on a motion to suppress, whether based on a
claimed violation of the Fourth Amendment or on its alleged involuntariness, an
appellate court applies a two-part standard of review. Regarding historical facts,
the appellate court reviews the trial court’s findings for clear error. Whether those
facts meet constitutional standards, however, is a question of law, which the
appellate court reviews independently of the court’s determination.
5. Confessions: Police Officers and Sheriffs. Interrogation necessarily includes
elements of psychological pressure which are meant to elicit a confession. The
question is whether the techniques used are so coercive as to overbear the sus-
pect’s will.
6. Jury Instructions: Appeal and Error. Whether a court’s jury instructions were
correct is a question of law. On a question of law, an appellate court is obligated
to reach a conclusion independent of the determination of the court below.
7. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
ficiency of the evidence claim, whether the evidence is direct, circumstantial, or a
combination thereof, the standard is the same: An appellate court does not resolve