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Credit Bureau Services v. Experian Information

March 22, 2013

CREDIT BUREAU SERVICES, INC., A NEBRASKA CORPORATION, APPELLANT AND CROSS-APPELLEE,
v.
EXPERIAN INFORMATION SOLUTIONS, INC., AN OHIO CORPORATION, APPELLEE AND CROSS-APPELLANT.



Appeal from the District Court for Dodge County: Geoffrey c. hall, Judge.

The opinion of the court was delivered by: miller-lermaN, J.

Nebraska advaNce sheets 526 285 NEBRASKA REPORTS

Cite as

___ N.W.2d ___

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 conclusion 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.

Affirmed.

heavicaN, c.J., WriGht, coNNolly, stephaN, mccormack, miller-lermaN, and cassel, JJ.

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 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 verdict. 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 buyout 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 requirement of $5,000 per month. CBS contends that the increased minimum purchase requirement by Experian was part of a plan 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 nationwide 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, limited 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 deposition, and two of whom appeared by video deposition. CBS submitted and the court received 37 exhibits. The video evidence 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 ...


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