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Cite as 296 Neb. 818

ACI Worldwide Corp., a Nebraska corpora

appellant, v. Baldwin Hac

Meeks, Inc., et al., appelle

___ N.W.2d ___

Filed June 9, 2017. No. S-16-358.

1. Motions to Vacate: Proof: Appeal and Error. An appellate court will 

reverse a decision on a motion to vacate or modify a judgment only if 

the litigant shows that the district court abused its discretion.

2. Motions for New Trial: Appeal and Error. An appellate court reviews 

a trial court’s ruling on a motion for a new trial for abuse of discretion.

3. Pretrial Procedure: Appeal and Error. Decisions regarding discovery 

are directed to the discretion of the trial court and will be upheld in the 

absence of an abuse of discretion.

4. Verdicts: Appeal and Error. When reviewing a jury verdict, the appellate court considers the evidence and resolves evidentiary conflicts in 

favor of the successful party.

5. Verdicts: Juries: Appeal and Error. A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent 

evidence presented to the jury upon which it could find for the successful party.

6. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in 

receiving or excluding an expert’s testimony which is otherwise relevant 

will be reversed only when there has been an abuse of discretion.

7. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

8. Attorney Fees: Appeal and Error. When an attorney fee is authorized, 

the amount of the fee is addressed to the trial court’s discretion, and its 

ruling will not be disturbed on appeal absent an abuse of discretion.

9. Appeal and Error. To be considered by an appellate court, an error 

must be both specifically assigned and specifically argued in the brief of 

the party asserting the error.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/27/2017 12:10 AM CDT
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10. Trade Secrets: Pretrial Procedure. There is no talismanic procedure 

for trade secret discovery that may be used to obtain the best results in 

any given case.

11. ____: ____. In determining whether a party’s trade secret information 

should be discoverable, the moving party’s need for the trade secret 

information must be weighed against the injury that disclosure might 

cause the party opposing the discovery.

12. Torts: Parties. Under the doctrine established by Eastern R. Conf. v. 

Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and 

Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 

626 (1965), a party is protected from tort liability for the act of filing 

a lawsuit.

13. Torts. The doctrine established by Eastern R. Conf. v. Noerr Motors, 

365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and Mine Workers 

v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), 

does not protect a party from liability for the act of filing a “sham” 

lawsuit. A lawsuit is a “sham” if it is both (1) objectively baseless in the 

sense that no reasonable litigant could expect success on the merits and 

(2) subjectively motivated by bad faith.

14. Pleadings. An affirmative defense raises new matters which, assuming 

the allegations in the petition to be true, constitutes a defense to the 

merits of a claim asserted in the petition.

15. ____. The doctrine established by Eastern R. Conf. v. Noerr Motors, 365 

U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and Mine Workers v. 

Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), is 

an affirmative defense.

16. Vendor and Vendee. For purposes of the Junkin Act, monopolization 

consists of two elements: (1) the possession of monopoly power in the 

relevant market and (2) the willful acquisition or maintenance of that 

power as distinguished from growth or development as a consequence 

of a superior product, business acumen, or historic accident.

17. ____. The existence of monopoly power ordinarily is inferred from the 

seller’s possession of a predominant share of the market.

18. Vendor and Vendee: Damages. Despite the broad remedial language of 

the Junkin Act, not every person claiming an injury from a Junkin Act 

violation can recover damages.

19. Vendor and Vendee: Damages: Proof. To recover damages, a plaintiff 

must prove an antitrust injury. To constitute an antitrust injury, the injury 

must reflect the anticompetitive effect of the violation or the anticompetitive effects of anticompetitive acts made possible by the violation.

20. Vendor and Vendee. Actual anticompetitive effects include, but are 

not limited to, reduction of output, increase in price, or deterioration 

in quality.
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21. Contracts: Appeal and Error. The interpretation of a contract is a 

question of law, in connection with which an appellate court has an 

obligation to reach its conclusions independently of the determinations 

made by the court below.

22. Contracts. When the terms of a contract are clear, they are to be 

accorded their plain and ordinary meaning.

23. Trial: Expert Witnesses: Appeal and Error. There is no exact standard for fixing the qualifications of an expert witness, and a trial court 

is allowed discretion in determining whether a witness is qualified to 

testify as an expert. Unless the court’s finding is clearly erroneous, such 

a determination will not be disturbed on appeal.

24. Trial: Expert Witnesses. Experts or skilled witnesses will be considered qualified if they possess special skill or knowledge respecting the 

subject matter involved superior to that of persons in general, so as to 

make the expert’s formation of a judgment a fact of probative value.

25. Trial: Rules of Evidence: Expert Witnesses. A witness may qualify as 

an expert by virtue of either formal training or actual practical experience in the field.

26. Damages: Evidence: Proof. A plaintiff’s burden of offering evidence 

sufficient to prove damages cannot be sustained by evidence which is 

speculative and conjectural, but proof of damages to a mathematical 

certainty is not required; the proof is sufficient if the evidence is such 

as to allow the trier of fact to estimate actual damages with a reasonable 

degree of certainty and exactness.

27. Words and Phrases. Overhead costs are business expenses that cannot 

be allocated to a particular service or product.

28. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is a factor only when the rules make 

such discretion a factor in determining admissibility.

29. Trial: Evidence: Appeal and Error. To constitute reversible error in a 

civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of the litigant complaining about evidence admitted or excluded.

30. Trial: Presumptions: Waiver. Generally, a motion which is never 

called to the attention of the court is presumed to have been waived or 

abandoned by the moving party, and, where no ruling appears to have 

been made on a motion, the presumption is, unless it otherwise appears, 

that the motion was waived or abandoned.

31. Attorney Fees. If an attorney seeks a statutory attorney fee, that attorney should introduce at least an affidavit showing a list of the services 

rendered, the time spent, and the charges made.
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32. ____. An award of attorney fees involves consideration of such factors 

as the nature of the case, the services performed and results obtained, 

the length of time required for preparation and presentation of the case, 

the customary charges of the bar, and general equities of the case.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirme

Gregory C. Scaglione, Patrice D. Ott, and John V. Matson, 

of Koley Jessen, P.C., L.L.O., and Eric J. Magnuson, Ryan W. 

Marth, and Christopher P. Sullivan, of Robins Kaplan, L.L.P., 

for appellant.

Michael F. Coyle, Timothy J. Thalken, and Robert W. Futhey, 

of Fraser Stryker, P.C., L.L.O., for appellees.

Heavican, C.J., Wright, Cassel, Stacy, K

Funke, JJ

Kelch, 

I. NATURE OF CASE

In September 2012, ACI Worldwide Corp. (ACI) sued 

Baldwin Hackett & Meeks, Inc. (BHMI); its cofounders; and 

other BHMI principals. The primary claims involved in this 

case are ACI’s claim that BHMI misappropriated its trade 

secrets and BHMI’s counterclaims that ACI tortiously interfered with a business relationship, breached a nondisclosure 

agreement, and violated provisions of Nebraska’s unlawful 

restraint of trade statutes (referred to as the “Junkin Act”).1

In a 2014 trial, a jury found that ACI had not met its burden 

of proof with respect to its misappropriation claim. In a 2015 

trial, a jury found in favor of BHMI on all of its counterclaims and awarded BHMI $43,806,362.70. The district court 

awarded BHMI $2,732,962.50 in attorney fees and $7,657.93 

in costs.

ACI filed motions to vacate the 2014 and 2015 judgments, 

reopen the evidence, and grant ACI a new trial on the basis 

1 See Neb. Rev. Stat. §§ 59-801 to 59-831 (Reissue 2010).
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that it had discovered new evidence. This “new” evidence was 

trade secret information, which the district court had previously ruled could not be discovered until ACI conducted more 

non-trade-secret discovery to support its claims. However, 

ACI obtained the evidence in a federal action against one of 

BHMI’s customers. The district court overruled ACI’s posttrial 

motions, and ACI appeals.

II. FACTS

1. Prelitig

ACI and BHMI are competitors in the business of developing and licensing electronic payment processing software, 

including “middleware.” Middleware is computer software that 

enables other software applications to communicate with one 

another by routing messages between them. Two different 

middleware programs are involved in this case: (1) ACI’s middleware, “NET24-XPNET” (XPNET), and (2) BHMI’s middleware, “Concourse - TMS” (TMS).

(a) Middleware Programs

(i) XPNET

ACI’s XPNET software has been the primary middleware 

in the electronic payments market for the past 40 years, and it 

generates approximately $52 million in annual revenue for ACI. 

Of the approximately 350 worldwide customers in the market, 

approximately 300 customers use XPNET. One of those customers is MasterCard International, LLC (MasterCard).

By itself, XPNET does not do anything. In order for a 

customer like MasterCard to use XPNET, it must purchase 

or develop a program to “bolt onto” XPNET. To “bolt onto” 

XPNET, MasterCard purchased a program known as the 

MasterCard Debit Switch or MDS.

In a March 2008 letter, ACI announced to MasterCard and 

other customers that it intended to transition all customers 

from “BASE24,” which XPNET is a part of, and which runs 

exclusively on Hewlett Packard (HP) NonStop hardware, to 

“BASE24-eps,” which would run on IBM hardware. In the 
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letter, ACI advised its customers that it would no longer provide routine enhancements or support for BASE24.

After the March 2008 announcement, ACI’s customers 

became concerned that they would have to license all new 

software and purchase new IBM hardware, resulting in the loss 

of their significant investment in the HP NonStop hardware. 

MasterCard representatives met with HP representatives to discuss the future of HP hardware. When the topic of middleware 

came up, HP recommended that MasterCard take a look at 

BHMI, who had previously worked for HP on a project.

(ii) TMS

In April 2008, a sales representative from HP contacted 

BHMI to see if BHMI would be interested in developing an 

XPNET replacement for MasterCard. BHMI indicated that it 

was interested, and in mid-April, HP, MasterCard, and BHMI 

had a preliminary conference call to discuss BHMI’s capabilities and MasterCard’s requirements and interest in replacing XPNET.

In April 2009, MasterCard entered into a contract with 

BHMI to develop the XPNET replacement. MasterCard wanted 

a middleware that could be used not only on HP NonStop hardware, but on other platforms as well. BHMI developed TMS, 

which was designed to run on all major types of hardware.

In June 2010, MasterCard sent ACI a notice that it would 

not renew its contract for XPNET. By May or June, TMS had 

been delivered to MasterCard, and MasterCard was testing it 

by running it on various components of its network. On August 

20, MasterCard accepted TMS.

In December 2010, BHMI began to market TMS and issued 

a press release announcing that MasterCard had replaced 

XPNET with TMS and that TMS would be commercially available to other HP NonStop users.

(b) ACI Meets With BHMI

In late December 2010, ACI contacted BHMI and requested 

a meeting to discuss ACI’s concerns that BHMI had used 
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ACI’s proprietary information to develop TMS. BHMI denied 

ACI’s accusation and agreed to meet so long as ACI provided 

an agenda prior to the meeting and signed a nondisclosure 

agreement. ACI and BHMI exchanged at least six versions of 

the nondisclosure agreement before agreeing on the final version. The final version of the nondisclosure agreement (NDA) 

contained a provision that ACI would not utilize the confidential information of BHMI in any manner, including in a legal 

action against BHMI or its customers.

After the NDA was signed, BHMI met with Charles Linberg, 

ACI’s chief technology officer, and Alan Hoss, another ACI 

employee, to discuss how TMS operated. At the conclusion 

of the meeting, Linberg and Hoss requested to see the source 

code and manuals for TMS. After an internal discussion, BHMI 

agreed to allow Linberg and Hoss to review the technical 

manuals for TMS.

2. ACI’s Complaint

BHMI’s Counte

In September 2012, ACI filed a complaint against BHMI and 

its officers, alleging eight causes of action: breach of contract, 

misappropriation of trade secrets, fraud, unjust enrichment, 

tortious interference with business relations and expectations, 

conversion, trespass to chattels, and civil conspiracy. All of 

these claims, except for the claim of misappropriation of trade 

secrets against BHMI, were dismissed through pretrial motions. 

To support its claim of misappropriation of trade secrets, ACI 

alleged in its complaint that “BHMI agreed to allow ACI 

representatives to conduct an examination of the operations, 

configurations, and application programming manuals related 

to [TMS]” and that “[a]s a result of the inspection, ACI found 

a high degree of conceptual similarity . . . .”

BHMI countersued, alleging that ACI had (1) breached 

the NDA by utilizing BHMI’s confidential information in 

a legal action against BHMI; (2) tortiously interfered with 

BHMI’s prospective business relationships by falsely claiming 

that TMS was the product of infringment, which placed a cloud 
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over TMS and prevented BHMI from marketing or licensing it; 

and (3) violated the Junkin Act, which is Nebraska’s counterpart to the federal antitrust laws, i.e., the Sherman Act and the 

Clayton Act.2

In November 2012, the first hearing was held. At the hearing, BHMI asked for expedited discovery because of the 

impact that the litigation was having on BHMI’s ability to market TMS. Counsel for ACI stated that “we certainly welcome 

expedited discovery.”

3. Discov

(a) ACI’s Motions to Compel BHMI to 

Produce Trade Secret Information

In December 2012, before ACI had even served written 

discovery on BHMI, ACI filed a motion to compel BHMI 

to produce trade secret information, including TMS’ source 

code and manuals. In the same motion, ACI sought a protective order for its own trade secret information. In support of 

its motion to compel, ACI alleged that ACI employees had 

reviewed TMS manuals and found a high degree of similarity 

between XPNET and TMS. In the motion, ACI proposed that 

BHMI disclose its source code and manuals to an expert hired 

by ACI, who would review the information and provide to ACI 

an opinion as to whether misappropriation had occurred. ACI 

would then decide whether to continue its suit, and if it did, 

then ACI would submit its trade secret information to an expert 

hired by BHMI.

After three hearings on ACI’s motion, which are described 

below, the district court overruled ACI’s motion to compel, 

indicating that it would consider granting a similar motion 

in the future, provided that ACI conducted some non-tradesecret discovery.

2 Credit Bureau Servs. v. Experian Info. Solutions, 285 Neb. 526, 531, 828 

N.W.2d 147, 151 (2013) (citing Pierce Co. v. Century Indemnity Co., 136 

Neb. 78, 285 N.W. 91 (1939)).
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(i) February 2013 Hearing

The first hearing on ACI’s motion to compel was held in 

February 2013. In opposition to the motion, BHMI argued 

that under Nebraska case law, before ACI could gain access 

to BHMI’s trade secrets, ACI must set forth with particularity what trade secrets of XPNET it contends BHMI misappropriated. BHMI also expressed concern that under the 

plan proposed by ACI, BHMI’s biggest competitor, ACI’s 

expert would have access to its most sensitive information, 

and that if ACI decided not to continue the suit, then ACI 

would never have to disclose the information contained in 

the expert’s report, nor would there be any “checks” on what 

ACI did with that information. ACI argued that it had pled 

its misappropriation claim with sufficient particularity when 

it pled that TMS and XPNET were similar in conception and 

implementation and that it needed BHMI’s source code to 

prove its claims.

After hearing the parties’ arguments, the district court 

told ACI:

I want you to get what you need, but I understand 

completely [BHMI counsel’s] need to protect his client, 

too, at the same time. So — these trade secret cases and 

confidential information cases are kind of tricky sometimes, and I understand both needs here. You can’t be so 

handcuffed you can’t prove your case; but, on the other 

hand, I just don’t think because they get sued they have 

to turn over everything to you that could damage — 

potentially damage them far beyond just disclosing the 

limited amount of information.

The court stated, “I think the best thing to do would be to 

respond — to provide with particularity what it is you believe 

they have done and then we’ll decide the most limited way 

that you can obtain the information that you believe you 

need.” The court then decided to hold ACI’s motions in abeyance until such time as ACI produced with particularity what 

it believed BHMI had misappropriated.
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(ii) April 2013 Hearing

The second hearing on ACI’s motion was held in April 2013. 

At this hearing, ACI offered exhibit 5, which was a response 

to interrogatories, in support of its motion. ACI asserted that 

exhibit 5 identified with particularity the trade secrets it contended BHMI misappropriated. However, BHMI argued that 

the characteristics identified in exhibit 5 were not ACI’s trade 

secrets, but characteristics of every middleware program and 

were available in the public domain. BHMI argued that before 

ACI could gain access to its trade secret information, ACI must 

show that the information in exhibit 5 is a trade secret and that 

it was misappropriated by BHMI. The district court agreed and 

again held ACI’s motion in abeyance.

(iii) May 2013 Hearing

In May 2013, another hearing was held on ACI’s motion 

to compel. This time, ACI offered a document referred to as 

ACI’s “trade secret statement.” In the statement, ACI aimed to 

show what information it believed BHMI had misappropriated 

and that such information was a trade secret. To prove that the 

information was a trade secret, ACI illustrated the steps ACI 

had taken to keep the information a secret and the economic 

value that XPNET had to ACI.3 ACI also alleged in the statement that it was convinced BHMI stole the information, but it 

did not know how.

In opposition to the motion, BHMI offered Linberg’s deposition, which BHMI argued showed that ACI did not have a good 

faith basis for its lawsuit against BHMI and that therefore ACI 

was not entitled to trade secret discovery. ACI had identified 

Linberg as one of two people who had knowledge of BHMI’s 

alleged improprieties. So, at the deposition, counsel for BHMI 

3 See Neb. Rev. Stat. § 87-502(4)(a) (Reissue 2014) (defining “[t]rade 

secret” as information that “[d]erives independent economic value, actual 

or potential, from not being known to . . . other persons who can obtain 

economic value from its disclosure or use” and is “the subject of efforts 

that are reasonable under the circumstances to maintain its secrecy”).
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asked Linberg for all the bases Linberg had for believing 

that BHMI had misappropriated ACI’s proprietary information. 

Linberg testified that he believed BHMI had misappropriated 

ACI’s proprietary information after he saw BHMI’s marketing 

materials and website, because “it would be impossible for any 

other company to develop a software system that does the same 

functions that [XPNET] does without stealing [ACI’s] trade 

secrets.” BHMI counsel asked Linberg, “So even if we were 

to come forward and produce all of our software code and it’s 

completely different but it does the same thing [as XPNET], 

you still believe that it’s a violation of your trade secrets?” 

Linberg replied, “[Y]es.” Linberg testified that even if he had 

not met with BHMI and reviewed its manuals, ACI still would 

have sued BHMI.

After hearing both parties argue, the court reserved ruling 

until it received BHMI’s brief.

(iv) Order Overruling ACI’s 

Motion to Compel

On July 29, 2013, the district court issued an order overruling ACI’s motion to compel BHMI to produce its source code 

and manuals. In the order, the court agreed with ACI that it 

was not “required at this stage of litigation to prove exactly 

how and when the trade secrets were allegedly misappropriated,” but stated that ACI “should not be able to gain unfettered access to [BHMI’s] own valuable trade secrets simply 

by making the allegation [that BHMI misappropriated ACI’s 

proprietary information].”

The court noted its broad discretion under Neb. Ct. R. Disc. 

§ 6-326 of the Nebraska Rules of Discovery to limit the time, 

place, and manner of discovery as required “‘to protect a 

party or person from annoyance, embarrassment, oppression, 

or undue burden or expense.’” Additionally, the court noted its 

“broad discretion to modify the timing and sequence of discovery ‘for the convenience of the parties and witnesses and in the 

interests of justice.’” The court then stated:
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Under a properly crafted protection order, the Court 

would be inclined to allow discovery of the source code, 

if and when there is significantly more evidence to support [ACI’s] allegations. At this juncture, there are the 

allegations contained in [ACI’s] Complaint, denials in 

[BHMI’s] Answer, and testimony of [ACI’s] representative, [Linberg]. Short of ordering BHMI to produce its 

source code to [ACI’s] expert, there would appear to be 

any number of means of discovery that may uncover evidence of plagiarizing, including depositions of MasterCard 

representatives, [BHMI], current and former employees of 

[BHMI], third-party contractors of BHMI, as well as subpoenas for documents from MasterCard and third-party 

contractors, and, of course, requests for production of 

documents from [BHMI].

(b) Further Discovery: MasterCard

In August 2013, ACI served MasterCard with a subpoena 

duces tecum. In the subpoena, ACI requested that MasterCard 

produce, among other documents, TMS’ manuals and any 

documents showing MasterCard’s requirements and specifications for TMS. After MasterCard indicated that it would not 

produce these documents, ACI filed a “Motion to Clarify Order 

Regarding Source Code and Notice of Hearing.”

(i) ACI’s First Motion to Clarify

At the hearing on ACI’s motion to clarify, the district 

court stated that it did not intend “to just allow [ACI] to go 

to MasterCard and get what we’re not disclosing yet from 

BHMI.” ACI argued that it was not asking for all of BHMI’s 

manuals, but for manuals that BHMI had given to MasterCard 

during the development of TMS. Counsel for BHMI agreed 

that any exchanges between MasterCard and BHMI made 

before BHMI entered into a contract with MasterCard were 

“fair game.” But counsel for ACI clarified that ACI wanted 

all exchanges made before the delivery of TMS, including 

exchanges made after the parties entered into an agreement. 
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Because it seemed that the parties might be able to reach an 

agreement as to what ACI could discover from MasterCard, 

the court directed the parties to work together to draft a protective order to govern the MasterCard discovery. Although 

the parties agreed on a protected order, they did not reach an 

agreement as to whether postcontract, predelivery exchanges 

were discoverable.

After the hearing, MasterCard produced some of the documents requested by ACI. However, MasterCard did not produce “Requirements Documents” or “External Specification 

Documents,” because it believed doing so would violate 

the district court’s July 29, 2013, order. The “Requirements 

Documents” and “External Specification Documents” were 

sent to MasterCard as attachments in emails. MasterCard produced the emails to which the documents were attached, but 

not the attachments. After MasterCard refused to disclose those 

attachments, ACI filed a motion to compel MasterCard to produce the email attachments.

(ii) September 2013 Hearing

In September 2013, a hearing was held on ACI’s motion 

to compel MasterCard to produce the email attachments. 

At the hearing, ACI argued that certain emails produced by 

MasterCard showed that the attachments at issue must have 

contained ACI’s trade secrets. In support of its argument, ACI 

pointed to an email sent from MasterCard to BHMI, wherein 

MasterCard answered some questions that BHMI asked in the 

course of developing TMS. In the email, BHMI asked questions 

such as, “What is the MSG Transparent field in the header used 

for? I don’t think TMS has any need for this.” ACI claimed 

that “MSG Transparent” relates to XPNET and argued that 

MasterCard must have given BHMI information about XPNET 

in order for BHMI to ask this question. ACI also pointed to a 

document that contained an action list, which was sent from 

MasterCard employee Theresa LaRosa to other MasterCard 

employees. Under the name “Kim Hall,” the document stated, 
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“Provide BHMI current setup of XPNet external processes and 

how these configurations are cycled in.”

MasterCard argued that ACI was again seeking documents 

from MasterCard that it was precluded from getting from 

BHMI. MasterCard asserted that both the “Requirements 

Documents” and the “External Specification Documents” were 

sent to MasterCard from BHMI and contained BHMI’s confidential trade secret information, including manuals and hundreds of pages describing the functionality and design of TMS. 

MasterCard also argued that it was precluded from producing 

the attachments because MasterCard had signed nondisclosure 

agreements with BHMI.

BHMI agreed that the email attachments were confidential 

trade secret information and asked the court to overrule the 

motion. BHMI also argued that even though the document 

with the action list suggested that MasterCard had planned to 

provide BHMI with XPNET information, ACI had not produced any evidence that such an action was ever taken. BHMI 

asserted that ACI was set to depose a MasterCard representative in October 2013 and argued that ACI had “more than 

adequate evidence and paperwork to go take the deposition.” 

BHMI suggested that if ACI could produce additional evidence 

in support of its claims as a result of the deposition, then the 

court could reconsider its decision to allow ACI to discover 

the attachments.

After hearing the parties argue their positions, the district 

court asked ACI if it could proceed with the MasterCard deposition without the attachments and then report back to the court 

with more specific information regarding BHMI’s alleged misappropriation. ACI indicated that it could not “take a meaningful deposition” without those documents.

The district court then suggested a number of questions 

that ACI could ask to solicit information about the email 

attachments. The court suggested for example that ACI could 

“depose any number of MasterCard authors of these e-mails 

[and ask them:] What did you mean by this? What did you 
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send?” The district court also suggested that ACI could “ask 

[BHMI’s employees:] Why did you ask the question [about 

MSG Transparent field in the header]? Why did you use that 

term? Isn’t that an XPNET header field?” The court stated that 

if the answers to the depositions were “not enough, they’re 

guarded, they’re deceptive, there is a lot of, I don’t recall, I 

don’t remember,” then the court would entertain expanding the 

scope of discovery.

(iii) MasterCard Deposition: 

Stephen Birge

On October 2, 2013, ACI deposed Stephen Birge, a senior 

business leader at MasterCard. ACI asked Birge about the 

email attachments. Birge testified that one of the documents 

was “BHMI created” and was a “very high level proposal to 

MasterCard.” Another document contained “some of the header 

fields that the MDS [MasterCard debit switch] application was 

using at that time,” which was “produced by looking at the 

MDS source code.” As stated above, MDS was an application 

that MasterCard had purchased to “bolt onto” XPNET. Birge 

testified that the MDS source code did not contain any components of XPNET and that MasterCard never provided BHMI 

with any of the ACI header layouts. When asked whether “bits 

of information in the MDS source code [were] only there 

because . . . MasterCard used XPNET for its middleware,” 

Birge stated that he did not know the origin of particular lines 

of code.

Birge also testified that MasterCard never provided BHMI 

with a written list of MasterCard’s requirements for TMS. 

According to Birge, “since TMS was already 80 percent [written]” when MasterCard met with BHMI, MasterCard and 

BHMI merely had a “back and forth dialogue” about what was 

already written and what MasterCard needed.

Birge was also asked about the action list, wherein “Kim 

Hall” was to “[p]rovide BHMI current setup of XPNET external processes . . . .” Birge testified that he did not know if Hall 
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ever provided that information to BHMI, but he did not see it 

upon his review of MasterCard documents. Birge believed that 

whoever created the action list was using the term “XPNET” 

as a generic term for middleware and that the intent was not 

to send BHMI the XPNET information, but to provide them 

with information about “processes that run outside of middleware control.”

In the 3 months following Birge’s deposition, ACI did not 

communicate with MasterCard and did not request any further information from MasterCard. Additionally, ACI did not 

and had not requested any depositions of BHMI or any of 

its employees.

(c) BHMI’s Motion for Summary Judgment 

and ACI’s Motions to Compel 

MasterCard and BHMI

On December 27, 2013, BHMI filed a “Motion for Summary 

Judgment” in favor of BHMI on all issues. One week later, 

ACI filed a motion to continue BHMI’s motion for summary 

judgment, as well as a motion to compel MasterCard to produce documentation of all the documents it was withholding 

pursuant to the July 29 protective order. On January 30, 2014, 

a hearing was held on BHMI’s motion for summary judgment 

and ACI’s motion for a continuance.

(i) January 30, 2014, Hearing

ACI argued that it needed a continuance for the motion for 

summary judgment because, without the email attachments, 

ACI could not yet prove its case. To persuade the district court 

to allow ACI to discover the email attachments, ACI pointed 

to Birge’s deposition, wherein Birge was unable to recall, 

without referencing the attachments, exactly what information 

MasterCard sent to BHMI.

In opposition to ACI’s motion to continue, BHMI reminded 

the district court of the parties’ request for expedited discovery 

and argued that ACI was not actively pursuing discovery.
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After hearing the parties’ arguments, the district court 

offered ACI 30 days to submit evidence and any resistance, 

but indicated that BHMI’s motion for summary judgment was 

not premature. ACI argued that to defend the motion for summary judgment within 30 days, ACI would need a ruling on its 

motion to compel production from MasterCard. Although ACI 

had not requested a hearing on that motion, the district court 

stated that it would do “everything in [its] power” to get ACI 

an expedited hearing on that matter. Additionally, although 

ACI had not previously requested a deposition of BHMI or 

any of its employees, counsel for BHMI offered to “make 

somebody available from [BHMI] for deposition in the next 

30 days.”

(ii) February 7, 2014, Hearing

One week later, the district court held a hearing on ACI’s 

motion to compel production from MasterCard. In support of 

its motion to compel, ACI again argued that it was unable to 

properly depose Birge without the attachments. ACI argued 

that the documents were “crucial for [ACI] to examine the 

BHMI representatives . . . and to further examine MasterCard.”

In opposition to ACI’s motion, MasterCard argued that 

although counsel for ACI “would lead [the court to] believe 

that [Birge was] not prepared to testify” on the documents ACI 

was requesting, “the requirements document was the subject 

of over 20 pages of testimony in a seven-hour deposition.” 

MasterCard argued that it had already produced over 19,000 

pages of documents and that all of the documents that ACI 

sought were all within BHMI’s possession. Thus, MasterCard 

argued, if ACI is entitled to the documents, it should get them 

from BHMI.

The district court agreed with MasterCard, stating, “I’m 

going to overrule the motion to compel as against MasterCard. 

I’m not saying you’re not entitled to this information; but 

I think to the extent you’re entitled to it, it needs to come 

from BHMI.”
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Later that day, ACI filed a motion to compel BHMI to produce the email attachments. A hearing on the motion was held 

on February 25, 2014.

(iii) February 25, 2014, Hearing

At the hearing, ACI argued that it should at least be able to 

discover the attachments that MasterCard had sent to BHMI, 

because those attachments were from MasterCard and therefore 

were not BHMI’s proprietary information.

BHMI advised the court that on January 31, 2014, ACI had 

filed a suit against MasterCard in the U.S. District Court for 

the District of Nebraska.

After hearing both parties, the district court commented:

[O]ne of the problems with . . . these type of cases, is that 

both sides are a little bit at a disadvantage, because you 

think something happened and you’re trying to prove it. 

That’s your burden. They say it didn’t, and why would we 

have to turn stuff over when we don’t think there’s any 

evidence that says we did what you’re alleging. You’re 

both kind of handcuffed a little bit.

. . . I think I kind of discussed this a little bit in one of 

my first orders in this case . . . . Basically you’re asking 

the defendants in this case to reveal everything they got 

from MasterCard, and you got MasterCard’s trade secrets, 

you’ve got BHMI’s trade secrets, you’ve got your trade 

secrets. You’re trying to protect yours, they’re trying to 

defend and protect theirs, yet you want them to disclose 

things that they shouldn’t have to disclose if they didn’t 

do anything wrong.

The court told counsel for ACI, “I’m very sympathetic to your 

plight,” but added, “Basically what you’re asking me to do 

is order BHMI to turn over the trade secrets, if you will, of 

MasterCard, while you’re in the process of suing them for 

$40 million . . . .”

The district court suggested a number of ways that ACI 

could proceed with discovery without the email attachments. It 

asked counsel for ACI, “Did you depose [Theresa] LaRosa?” 
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ACI’s counsel stated, “Not yet.” The court asked, “When do 

you intend to do so? Because she’s the one that wrote this 

[action list].” The court also asked ACI, “Did you depose 

Kim Hall? . . . She’s on this as the person that’s going to 

provide BHMI the current set of XPNET external processes 

. . . .” ACI responded, “I certainly will, Your Honor.” The 

court also asked, “Did you depose the people who actually 

sent the [e]mails [with the attachments]?” Counsel for ACI 

responded, “No, not yet.” The court then advised ACI that it 

should go take depositions. It told ACI, “I’m not precluding 

or pre-deciding any issue, but I think it’s premature until these 

individuals are deposed. And once it’s completed, if you want 

to spend more time on this issue, either party, I’d be more than 

happy to provide the time.”

(iv) Order on Motion for 

Summary Judgment

After another hearing on BHMI’s motion for summary 

judgment, the district court issued an order granting summary 

judgment in favor of BHMI as to all of ACI’s claims, except 

the claim of misappropriation of trade secrets.

(d) ACI’s Motions to Continue Trial 

and to Compel Production of 

BHMI’s Trade Secrets

In April 2014, ACI filed a motion to continue the trial, which 

had been set for July 28. On the same day, ACI also filed a 

motion to compel the production of the email attachments and 

TMS’ source code and manuals, as well as a motion to renew 

its prior motions to compel. A hearing on those motions was 

held on June 25.

(i) June 25, 2014, Hearing

In support of its motion to continue trial, ACI argued that 

just 5 days prior, BHMI had identified three new expert witnesses that were not previously disclosed and had claimed 

damages in excess of $20 million. ACI argued that it needed 
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to analyze the information relating to damages and to depose 

the newly identified witnesses.

In response, BHMI argued that ACI has been aware of the 

damages it was going to claim for months. In March 2014, 

a BHMI employee had testified that BHMI was estimating 

prospective damages in excess of $10 million and that First 

National Bank of Omaha had canceled a seven-figure contract based solely on ACI’s lawsuit. BHMI also argued that 

it had been 2 years since ACI filed the lawsuit and “they’ve 

got nothing.”

The court indicated that it did not want to delay the trial 

on ACI’s claims, but that it was willing to bifurcate the case 

into two trials. It suggested that the first trial be on ACI’s 

claims against BHMI and that the second trial be on BHMI’s 

claims against ACI. ACI admitted that bifurcation would solve 

some of the “recent disclosure issues,” but maintained that 

there were a lot of other reasons why the trial on ACI’s claims 

should be delayed. For example, ACI asserted that MasterCard 

had refused to consent to depositions of its employees. But 

when asked whether ACI had subpoenaed those witnesses, ACI 

indicated that it had not.

In support of ACI’s motion to compel, ACI argued that it 

had presented sufficient evidence for the district court to allow 

discovery of the trade secret information: It had produced a 

“trade secret statement”; it had produced BHMI’s contract with 

MasterCard, wherein it referenced XPNET functionality; and 

it had produced MasterCard’s action list, wherein it stated that 

Hall should “‘[p]rovide BHMI current setup of XPNET external processes . . . .’”

After ACI referenced the action list, the district court asked 

ACI if it ever took the depositions of Hall and LaRosa. 

Counsel for ACI stated, “I want to, Your Honor,” to which 

the court asked ACI, “Well, why haven’t you?” Rather than 

explaining why ACI had not taken the depositions, counsel 

for ACI gave the court a history of its efforts to get access to 

BHMI’s trade secrets.
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ACI then told the court, “Your Honor, we need the e-mail 

attachments. I don’t know how we try this case without them.” 

After approximately 30 pages of argument, the district court 

indicated that without any new evidence, it was not going to 

change its previous rulings.

(ii) District Court’s 

July 14, 2014, Order

On July 14, 2014, the district court issued an order, which, 

among other things, overruled ACI’s motion to continue trial. 

In the order, the court noted that although the case was filed 

in September 2012, no depositions were taken until May 2013, 

when BHMI deposed ACI representative Linberg. The court 

wrote, “As of this writing in late June, 2014, so far as the Court 

can tell, only 4 other depositions have been taken”: Birge, the 

MasterCard representative, and three BHMI employees.

The district court also noted that although ACI knew the 

trial date was approaching, ACI has “resisted to this point 

the Court’s encouragement to engage in vigorous non trade 

secret discovery.” The court stated that “the only significant 

evidence” that ACI presented of plagiarism was the affidavit 

of an ACI employee, stating that he reviewed emails transmitting information from MasterCard to BHMI and that based on 

his review, he strongly believed that MasterCard had provided 

BHMI with ACI’s proprietary information. The district court 

noted that the emails referenced in the affidavit were between 

11 different MasterCard employees and that ACI had not 

deposed any of them.

The district court ended its order stating:

To be absolutely clear, the Court has never taken 

the position that [ACI] could not have access to the 

source codes under any circumstances. The Court has 

simply asked for evidence to be produced that supports 

a certain level of probability that plagiarism occurred 

before triggering the disclosure of the source code and 

related materials.
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4. First Trial: ACI’s C

Agains

ACI’s claims against BHMI were tried in July and August 

2014. At the trial, as ACI states in its brief on appeal, “ACI 

was forced to rely on circumstantial evidence as to what was 

disclosed to and used by BHMI,” such as “the fact that communications were flowing back and forth” and “the necessity 

of XPNET trade secrets being incorporated into TMS for the 

MDS to function properly in the manner BHMI claimed.”4

Although the district court denied BHMI’s motion for 

directed verdict, concluding “there’s enough evidence for the 

jury to consider the misappropriation of trade secrets,” the jury 

ultimately returned general verdicts that ACI had not met its 

burden of proof on any of its claims.

5. Between T

On March 6, 2015, pursuant to ACI’s federal action against 

MasterCard, ACI was able to obtain the attachments to the 

emails from MasterCard to BHMI. In June or July, the federal 

court granted ACI’s motion to amend the protective order to 

allow ACI to use the email attachments in the state court case.

(a) July 2015 Motions

In July 2015, a series of motions were filed by both parties. 

On July 13, ACI filed a motion for summary judgment as to 

all BHMI’s counterclaims, and on July 17, it filed a motion to 

vacate the 2014 verdicts and associated judgments, reopen discovery, and grant a new trial. On July 26, BHMI filed a motion 

to continue the hearings on ACI’s motions, and ACI filed 

another motion to continue trial. On July 31, a hearing was 

held on (1) ACI’s motion for summary judgment, (2) ACI’s 

motion to vacate the 2014 judgment, and (3) BHMI’s motion to 

continue the hearings for ACI’s motion for summary judgment 

and motion to vacate the 2014 judgment.

4 Brief for appellant at 17.
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(i) Motion for Summary Judgment

In support of its motion for summary judgment, ACI argued, 

among other things, that BHMI’s damages evidence was impermissibly speculative and that the breach of contract claim 

based on the NDA was inadequate “as a matter of law.” ACI 

also argued that the Noerr-Pennington doctrine immunized 

ACI from claims relating to the filing of its lawsuit.5 According 

to the record on appeal, this hearing was the first time ACI 

ever raised the Noerr-Pennington defense. ACI’s motion for 

summary judgment was overruled.

(ii) ACI’s Motion to Vacate 

2014 Judgment

In support of ACI’s motion to vacate the 2014 judgment, 

ACI advised the district court of the documents it obtained 

during federal discovery. It also represented to the district 

court that the attachments had been given to Mark Newsom, a 

principal software engineer from ACI who works on XPNET. 

Newsom created a report, which, according to ACI, showed 

that the email attachments contained both paraphrased information as well as “direct quotes” from XPNET’s manuals.

BHMI sought to continue this motion until after the second 

trial, arguing that ACI had not produced to BHMI the email 

attachments, any portions of the XPNET manuals, or Newsom’s 

report. BHMI also argued that only 6 weeks remained until the 

second trial. The district court agreed that there was no reason 

to “mess with it right now.”

There was also some discussion as to whether the email 

attachments could be produced at the second trial. ACI 

argued that the attachments were relevant to the breach of 

the NDA claim, because per the NDA, BHMI’s “Confidential 

Information” did not include information that was independently developed by ACI.

5 See Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. 

Ed. 2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S. 

Ct. 1585, 14 L. Ed. 2d 626 (1965).
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ACI then offered the email attachments “in support of the 

motion to reopen discovery, vacate orders, grant and set a new 

trial, and the other relief set forth in the motion.” The “other 

relief” included a continuation of the second trial, but did not 

include allowing ACI to present the email attachments at the 

second trial.

ACI also asked the court to review the email attachments 

in camera. The district court indicated that it would not do 

so prior to the second trial; instead, it sealed the documents 

and stated that it would consider them after the second trial, 

if necessary.

(b) ACI’s Motion in Limine

In August 2015, ACI filed a motion for an order that the 

email attachments and Newsom’s testimony about the email 

attachments were admissible in the second trial. A hearing was 

set for September 14 at 9 a.m. However, on appeal, there is no 

record of the hearing or the court’s ruling on the motion.

6. Second Trial

Countercla

The second trial on BHMI’s counterclaims against ACI was 

held in mid-September 2015. Because ACI assigns that there 

was insufficient evidence to support BHMI’s claims of breach 

of contract and violation of the Junkin Act, and because ACI 

assigns that there was “no cognizable evidence of damages to 

support any claim,” we review the evidence presented on these 

issues in detail.

(a) Evidence of Breach of NDA

Most of the evidence concerning BHMI’s claims of breach 

of contract came from the testimony of Lynne Baldwin.

(i) History of BHMI

Lynne testified that she and her husband, Jack Baldwin, 

formed BHMI in 1986, and in 1987, they were joined by 

Michael Meeks, who now serves as BHMI’s vice president of 

development.
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BHMI started as a custom software company that would 

write specific software from customer’s specifications. Its 

customers included large transportation and communications 

corporations.

In the early 2000’s, BHMI began to develop “Concourse 

Financial Software Suite” (Concourse), a software for companies that exchange transactions among different parties, 

referred to as “switches,” such as companies that track when 

one bank’s customer uses another bank’s automated teller 

machine. Lynne explained that if a customer uses its “Bank A” 

debit card at “Bank B’s” automated teller machine, Concourse 

can help switch companies route the transactions to “Bank 

A,” so that “Bank B” will dispense cash to the customer, 

all the while keeping track of the amounts that different 

financial institutions owe each other for the service. Lynne 

testified that a number of switches have licensed Concourse, 

including a debit switch in Canada, the New York Cash 

Exchange, and “Pulse,” the third largest debit switch in the 

United States.

(ii) Development of TMS

According to Lynne, BHMI had a close, working relationship with HP. In April 2008, HP contacted BHMI to 

ask if it was interested in doing a project with MasterCard. 

BHMI indicated that it was. In April 2009, BHMI entered 

into an agreement with MasterCard to create a replacement 

for XPNET.

MasterCard and BHMI entered into a “Software License 

and Maintenance Agreement.” Per the agreement, MasterCard 

agreed to pay BHMI $1.3 million to license TMS for 5 years.

Lynne testified that because of BHMI’s development of 

Concourse, BHMI already had a certain level of TMS developed. Nevertheless, according to Lynne, TMS took “thousands of hours” and over a year to create. In August 2010, 

MasterCard accepted TMS, and BHMI then had a proprietary 

product that it could license and sell on the market.
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(iii) Marketing TMS

To advertise its new product, BHMI’s marketing director, 

Casey Scheer, began a series of activities to market TMS, 

including adding a YouTube video about TMS on BHMI’s 

website and releasing a press statement about TMS and how 

MasterCard was using it to replace XPNET. BHMI also hired 

a marketing consultant to tell them how large the market for 

TMS would be.

The marketing consultant advised BHMI that in order to 

market the software, it needed to secure as a customer a premier bank (as opposed to a switch like MasterCard) to show 

other banks that they could replace XPNET and the BASE24 

system with TMS. Lynne explained that this would require 

finding a bank that was willing to create its own application 

around TMS, because “if you write any logical software that 

hooks into [XPNET or BASE24], ACI also owns that software 

even though [ACI] didn’t write it, because that’s the term of 

[its] contract.”

(iv) First National Bank of Omaha 

Expresses Interest in TMS

According to Lynne, after BHMI issued its press release, it 

started to get responses from customers around the globe. One 

such customer was First National Bank of Omaha (hereinafter 

FNBO), one of the largest credit card processing banks in the 

United States. A representative from FNBO emailed BHMI’s 

marketing support person expressing interest in using TMS for 

its credit card processing. BHMI then met with FNBO to discuss replacing the BASE24 system with TMS.

Lynne testified that FNBO was not happy with XPNET, 

because it did not like ACI’s transaction-based pricing. Under 

ACI’s transaction-based pricing, customers like FNBO had 

to pay a certain amount per transaction in addition to the 

license and maintenance fees. Additionally, FNBO had financial concerns about the cost of transitioning to IBM hardware. 

Accordingly, BHMI started to negotiate with FNBO for the 

installation and licensing of TMS.
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(v) ACI Contacts BHMI

In early January 2011, 1 month after BHMI issued its press 

release, BHMI received a call from Dennis Byrnes, ACI’s 

legal counsel. Byrnes requested a meeting, and Lynne met 

with him. Byrnes told Lynne that ACI’s upper management 

and technical support personnel had heard about TMS and 

had concerns that it infringed on XPNET. Lynne responded 

that she “‘didn’t know how it could infringe on XPNET’” and 

explained to him that BHMI had used all of its own software 

to create TMS.

Byrnes told Lynne that ACI staff would like to talk to BHMI 

and have BHMI answer some questions. Lynne agreed to talk 

to ACI and answer general questions, but because ACI was 

now one of BHMI’s competitors, BHMI asked that ACI sign a 

nondisclosure agreement and provide BHMI with a written list 

of questions ahead of time. ACI agreed. Lynne testified that 

Byrnes never said anything about filing a lawsuit; he wanted 

only to “allay the fears of [ACI’s] upper management.”

Lynne testified that when she received the nondisclosure 

agreement and list of questions from ACI, she was shocked by 

the list of questions. She explained that she expected the questions to be related to the marketing materials that BHMI had 

released. Instead, ACI asked “how [TMS] worked, how everything inside of it worked, what are your algorithms?” Lynne 

described these questions as “truly invasive,” because they 

went to the “very essence of [BHMI’s] intellectual property.”

After receiving the nondisclosure agreement and questions, 

Lynne wrote a letter to Byrnes, stating, “With regard to the 

nondisclosure, BHMI does not see any language that would 

restrict ACI from using information about [TMS] in its own 

products. . . . Until we can mutually come to some agreement on the nondisclosure, we cannot provide any substantive 

information to ACI.” Lynne also expressed to Byrnes that 

ACI’s question about “‘[i]dentify[ing] all interfaces providing XPNET compatibility’” made Lynne believe that ACI had 

incorrect information about TMS. Lynne explained to Byrnes 

that TMS is “‘not compatible with XPNET since it provides 
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no interfaces with any part of XPNET,’” and “‘a TMS node 

only communicates with other TMS nodes [and] cannot communicate with XPNET.’” Lynne suggested to Byrnes that perhaps with this new information, ACI might be assuaged and 

wish to withdraw its questions.

But ACI did not withdraw its questions, and instead continued to negotiate the NDA with BHMI. The final version of the 

NDA provided that ACI would not use any confidential information of BHMI’s in a legal action against BHMI. The NDA 

provided, in relevant part:

1. CONFIDENTIAL INFORMATION AND 

AUTHORIZED USE

a. “Confidential Information” means all non-public 

information which [BHMI] furnishes to [ACI] . . . .

b. [ACI] wishes to receive [BHMI’s] Confidential 

Information for the sole purpose of facilitating discussions between management of each party regarding information related to each party’s proprietary products (the 

“Authorized Use”). . . .

c. Confidential Information shall not include any 

information that (i) is or subsequently becomes publicly 

available without [ACI’s] breach of any obligation owed 

[BHMI], (ii) became known to [ACI] prior to [BHMI’s] 

disclosure of such information to [ACI], (iii) became 

known to [ACI] from a source other than [BHMI] other 

than by breach of an obligation of confidentiality owed 

to [BHMI] or (iv) is independently developed by [ACI].

2. RESTRICTIONS

. . . .

c. Confidential Information may only be disclosed, 

reproduced, summarized or distributed (i) as strictly necessary for the Authorized Use, and (ii) only as otherwise 

provided hereunder. For the avoidance of doubt, [ACI] 

understands and agrees that in no event shall [ACI] utilize the Confidential Information of [BHMI] in any manner whatsoever (i) in the development of its respective 

products; . . . (iii) in any legal action directed toward 
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[BHMI] or its vendors, representatives, agents, or customers . . . .

After the NDA was executed by both parties, Lynne and 

Meeks met with Linberg and Hoss of ACI. Although Lynne 

expected that ACI would have some general questions about 

TMS, ACI again wanted to know how TMS, its routing algorithms, and its protocols all worked. According to Lynne, 

Linberg was very adamant about seeing BHMI’s source code 

and manuals. Lynne testified that she and Meeks did not show 

Linberg or Hoss their source code or manuals and did not 

answer all of ACI’s questions, and the meeting was adjourned.

Lynne then met with Byrnes to express her frustrations 

about the questions she received from ACI. The questions, she 

explained, were not what she and Byrnes agreed to. According 

to Lynne, Byrnes looked at the questions and said, “‘Oh, I 

guess there’s some mistake. I’ll take it back,’” and then he left. 

Lynne testified that again Byrnes did not say anything about 

ACI’s taking any legal action against BHMI.

BHMI held an internal meeting to discuss ACI’s concerns, 

and it was decided that because BHMI “‘ha[d] nothing to 

hide,’” maybe BHMI could let ACI “‘look at a couple of manuals.’” Lynne testified that BHMI believed there was nothing 

in the manuals that would be a problem, so ACI could come 

over, look at the manuals, and then “‘be happy.’”

On July 21, 2011, Linberg and Hoss came back to BHMI 

to look at the manuals. BHMI allowed Linberg and Hoss to 

look at the manuals in an office by themselves for as long as 

they wanted, but restricted them from making any copies. In 

addition, if Linberg and Hoss took any notes, BHMI wanted 

to be able to see what they had written before they left. Lynne 

believed that Linberg and Hoss spent “an hour and a half, 

maybe two hours” looking at the manuals.

After Linberg and Hoss finished looking at the manuals, 

they did not show Lynne any notes, and Lynne did not notice 

any. Linberg told Lynne that BHMI would hear from ACI 

within 2 weeks, but in the following months, BHMI did not 

hear anything from ACI.
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(vi) Development Agreement 

With FNBO

In the meantime, BHMI had entered into a development 

license agreement with FNBO for $125,000 per year. The 

development license allowed FNBO to start looking at how 

TMS worked so that it could develop and install its own 

hardware. The development license also contained all of the 

commercial terms to upgrade to a 5-year full operating license 

for $1.25 million, plus an 18-percent annual maintenance 

fee. Under the agreement, BHMI would receive a total of 

$1.525 million over 5 years. FNBO planned to “go live” with 

TMS in August 2012.

As part of the agreement, BHMI agreed to indemnify FNBO 

against any claims that its use of TMS violated a third-party’s 

intellectual property rights. The agreement also required BHMI 

to let FNBO know if it believed that TMS was going to 

become the subject of an infringement claim. It also allowed 

FNBO to terminate the agreement and receive a full refund 

if TMS became the subject of an infringement claim. Lynne 

testified that these indemnification provisions were standard 

provisions in its agreements.

(vii) ACI Sues BHMI

In March 2012, ACI notified BHMI of its intent to sue the 

company. According to Lynne, this was the first time that ACI 

had ever stated its intention “out loud.”

Lynne testified that ACI’s lawsuit threat was a “huge deal.” 

She explained that a claim of infringement “is very serious in 

the marketplace” and that the “threat alone casts doubt on your 

capabilities, on how responsible you are as a company, and a 

lot of other areas.”

Both ACI’s chief executive officer and former HP executive 

Steven Saltwick testified that a company would not be able to 

license software that was alleged to be the product of infringement. Saltwick testified he would never even propose that an 

HP NonStop customer consider a software solution if there was 

a claim it had been misappropriated.
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In response to ACI’s lawsuit threat, BHMI told its marketing director to concentrate on marketing Concourse, instead 

of TMS. BHMI also disclosed ACI’s threat to FNBO. FNBO 

wanted the TMS solution to work and told BHMI that it would 

work with BHMI as long as it could.

In July 2012, ACI and BHMI met again to discuss the issue, 

but no resolution was reached. Lynne testified that at the 

conclusion of the meeting, Linberg told BHMI that if it kept 

going forward with TMS, then ACI would sue BHMI and any 

customer that licensed TMS. Lynne testified that she could not 

in good faith market the software when ACI had threatened to 

sue anyone who licensed it.

Because the threat of litigation persisted, FNBO eventually 

terminated its license with BHMI and demanded a refund, 

which BHMI provided. Michael O’Neil, FNBO’s vice president of technology, testified that “but for” ACI’s lawsuit 

and threats, it would have entered into the 5-year production 

license for TMS under the terms to which the parties had 

already agreed and it would have renewed that license for an 

additional 5-year term.

At the trial, counsel for BHMI questioned Lynne, over 

ACI’s objections, about all of the different claims ACI alleged 

against BHMI and against officers of BHMI in their personal capacity. Lynne was then asked about the first trial and 

whether BHMI “won on every one of [ACI’s claims].” Over 

ACI’s objection, Lynne testified that ACI did not win any of 

its claims.

(b) Evidence Relating to 

Junkin Act Claim

BHMI also sought to prove that ACI had violated the Junkin 

Act by engaging in predatory or anticompetitive conduct to 

acquire or maintain its monopoly power. Its theory was that 

ACI sought to acquire or maintain monopoly power by asserting, without good faith, that TMS was the product of infringement so as to put a cloud over TMS and prevent BHMI from 

marketing it. Most of the evidence about the relevant market 
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and ACI’s role within that market came from the testimony 

of Saltwick.

As part of his role at HP, Saltwick had been responsible 

for marketing HP NonStop hardware on a global basis and 

had worked with HP NonStop customers and advised them 

regarding software solutions. Because of this role, Saltwick 

was familiar with the worldwide market for retail financial 

payments software running on the HP NonStop platform. Of 

the 350 companies in this market, 300 of them used ACI’s 

software.

(c) Evidence Relating to Damages

Jack was the main witness to testify about BHMI’s lost 

profits. BHMI does not use an outside public accounting firm; 

instead, Jack handles BHMI’s finances, preparing documents 

such as BHMI’s profit and loss statements, cashflow reports, 

and tax returns. To calculate BHMI’s lost profits, Jack subtracted BHMI’s estimated costs from its estimated revenue.

(i) Estimated Costs

Jack testified that in his lost profits analysis, he accounted 

for certain estimated costs. Although BHMI did not accrue 

much in additional costs after it had already developed TMS 

for MasterCard, Jack explained BHMI would incur costs associated with the installation, consulting, and educating of customers as to how to use TMS. Jack estimated that these costs 

added up to about 160 hours of labor. But for purposes of his 

analysis, he “rounded up” to a “one-man month” of labor. To 

calculate the cost of a “one-man month” of labor, he used the 

$95,000 salary of an actual employee and added all the costs 

associated with the employee’s employment, including unemployment insurance fees, family medical insurance premiums, 

and Social Security. Jack testified that BHMI paid a total of 

$121,000 per year to employ the employee. Dividing that cost 

by 12 for each month, Jack arrived at a cost of $10,113 per 

month for the employee’s labor. This is the cost Jack attributed 

to each licensing agreement.
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Jack testified that he did not account for BHMI’s general 

overhead costs, because those costs would be incurred regardless of TMS. For example, BHMI’s costs for rent, telephones, 

insurance, office supplies, and electricity would not have varied based on whether BHMI licensed TMS to additional customers. Jack also testified that if customers had a problem with 

TMS, they would call BHMI’s general help desk, which BHMI 

paid to operate regardless of TMS. Because BHMI did not 

have a help desk dedicated to TMS, Jack did not attribute any 

costs to those calls. Jack testified that he considered the marketing costs for TMS, but explained that these costs were minimal, because marketing TMS typically consisted of Scheer’s 

attending conferences to market all of BHMI’s products, not 

just TMS.

(ii) Net Lost Profits

a. FNBO

For the FNBO contract, Jack estimated that BHMI lost a 

total of $3,103,793.24 as a result of FNBO’s backing out after 

ACI’s lawsuit. For purposes of his lost profits analysis, Jack 

assumed that FNBO would have licensed TMS for 5 years 

and would have then renewed its license for another 5 years. 

As for the fees under a 5-year licensing agreement, Jack used 

the fees set forth in the development license, which shows 

a licensing fee of $1.25 million and a maintenance fee of 

$225,000. To calculate BHMI’s lost profits in relation to the 

FNBO contract, Jack added the amount that BHMI refunded 

FNBO for the development license and professional fees 

($163,906.24) to the amount in fees that FNBO would have 

paid under two 5-year licensing agreements ($2,950,000) for 

a total of $3,113,906.24. Jack then subtracted the costs associated with those agreements ($10,113) to reach a net profit of 

$3,103,793.24.

b. Other Lost Contracts

Jack also estimated lost profits incurred as a result of being 

unable to market TMS to other companies during the course 
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of the litigation. Jack assumed that BHMI would be able to 

secure two customers per year. This assumption was supported 

by Scheer’s testimony that, based on the interest she received 

from the TMS marketing campaign, she felt “‘very confident 

[BHMI could] close at least two contracts a year.’”

Jack also assumed that each company would renew their 

5-year contracts for another 5-year term. This assumption was 

based on O’Neil’s testimony that FNBO would have “continued with the [licensing] agreement another five years” and 

other testimony that installing TMS is a significant investment 

for a company.

To determine the fees that BHMI would have charged under 

the licensing agreements, Jack based the fees off the existing contracts with MasterCard and FNBO. Jack testified that 

BHMI had negotiated two different licensing fees for different 

pricing structures used by MasterCard and FNBO. Because 

Jack was unsure of which pricing structure most companies 

would want, Jack averaged the net profit that each structure 

would bring in his lost profits calculation.

Jack testified that because securing MasterCard and FNBO 

as customers would help BHMI secure other customers, BHMI 

offered MasterCard and FNBO discounted rates of one-third 

the retail price for those pricing structures. Rather than using 

the discounted rates, Jack used the retail prices to project the 

profit that BHMI would have generated if it had been able to 

enter into two 5-year license agreements per year for years 

2012, 2013, and 2014. For these six licensing agreements, 

Jack projected that TMS would have generated $17,703,072 

in net profit. Assuming each of those companies renewed for 

another 5-year licensing agreement, Jack projected a net profit 

of $35,016,822.

7. Conclusion of Se

At the end of BHMI’s case in chief and at the close of 

the evidence, ACI moved for a directed verdict on multiple 

grounds, including that BHMI failed to produce sufficient 
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evidence of its antitrust claims, damages, and causation. The 

district court denied ACI’s motion.

The evidence was submitted to the jury, and the jury returned 

a verdict in favor of BHMI on all three claims, awarding damages of $43,806,362.70.

8. Attorney Fe

Having prevailed on its Junkin Act claim, BHMI petitioned 

for attorney fees in the amount of $2,732,962.50 and costs 

in the amount of $7,657.93. In support of its petition, BHMI 

submitted the affidavit of Steven Davidson, the chair of a 

local law firm’s litigation section, regarding the reasonableness of BHMI’s fee application. Davidson reviewed a detailed 

summary of the work performed and concluded that both 

the numbers of hours expended and the hourly rates were 

reasonable. ACI did not offer any expert evidence rebutting 

Davidson’s opinion.

The district court applied the factors set forth in our case law 

in determining the amount of a reasonable attorney fee. Well 

aware of the nature of the proceedings and the novelty and 

difficulty of the questions raised, the district court concluded 

that under the totality of the circumstances, the fee requested 

by BHMI was reasonable. Additional facts about the district 

court’s reasoning are set forth in the analysis section below.

9. Posttrial Mo

After the second trial, ACI filed a number of motions, 

including a motion for remittitur, motions to vacate the judgments associated with the 2014 and 2015 trials, and motions 

for new trials. These motions were overruled.

III. ASSIGNMENTS OF ERROR

ACI assigns, reordered and restated, that the district court 

erred (1) in overruling ACI’s motions to dismiss BHMI’s counterclaims because the Noerr-Pennington doctrine precludes 

BHMI’s antitrust and tortious interference claims; (2) in overruling its motion to vacate the dismissal of ACI’s claims 
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against BHMI on the basis of denied discovery; (3) in refusing 

to vacate the 2014 verdicts and associated judgment because 

ACI was denied discovery of BHMI trade secret information; 

and (4) in refusing to vacate the 2015 verdicts and associated 

judgment because (a) the Noerr-Pennington doctrine precludes 

BHMI’s antitrust and tortious interference claims, (b) BHMI 

presented insufficient evidence to support any of its claims, (c) 

BHMI presented no cognizable evidence of damages to support any claim, (d) ACI was denied discovery of BHMI’s trade 

secret information, and (e) the email attachments were erroneously excluded from evidence.

ACI further assigns that the district court abused its discretion in granting BHMI’s application for attorney fees and 

costs.

IV. STANDARD OF REVIEW

[1] An appellate court will reverse a decision on a motion to 

vacate or modify a judgment only if the litigant shows that the 

district court abused its discretion.6

[2] An appellate court reviews a trial court’s ruling on a 

motion for a new trial for abuse of discretion.7

[3] Decisions regarding discovery are directed to the discretion of the trial court and will be upheld in the absence of an 

abuse of discretion.8

[4,5] When reviewing a jury verdict, the appellate court 

considers the evidence and resolves evidentiary conflicts in 

favor of the successful party.9 A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent evidence presented to the jury upon which it could find 

for the successful party.10

6 Destiny 98 TD v. Miodowski, 269 Neb. 427, 693 N.W.2d 278 (2005).

7 Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).

8 Moreno v. City of Gering, 293 Neb. 320, 878 N.W.2d 529 (2016).

9 See Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173, 459 N.W.2d 

718 (1990).

10 Koster v. P & P Enters., 248 Neb. 759, 539 N.W.2d 274 (1995).
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[6,7] Generally, a trial court’s ruling in receiving or excluding an expert’s testimony which is otherwise relevant will be 

reversed only when there has been an abuse of discretion.11

An abuse of discretion occurs when a trial court’s decision is 

based upon reasons that are untenable or unreasonable or if 

its action is clearly against justice or conscience, reason, and 

evidence.12

[8] When an attorney fee is authorized, the amount of the 

fee is addressed to the trial court’s discretion, and its ruling 

will not be disturbed on appeal absent an abuse of discretion.13

V. ANALYSIS

[9] We first note that a number of ACI’s assignments of 

error and arguments will not be addressed on this appeal. To be 

considered by an appellate court, an error must be both specifically assigned and specifically argued in the brief of the party 

asserting the error.14

First, ACI assigned a number of errors that it failed to argue. 

ACI assigned that the district court erred in overruling both 

ACI’s motions to dismiss BHMI’s counterclaims and ACI’s 

motions to vacate the dismissal of ACI’s claims against BHMI. 

However, in its argument section, ACI failed to alert this court 

as to why ACI believes these rulings are in error. Not only 

were we unable to locate any reference to these motions in 

the body of ACI’s brief, but we were unable to locate within 

the appellate record the district court’s orders overruling these 

motions. For these reasons, we do not address the first two 

assignments of error.

11 Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).

12 Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).

13 Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011); 

Lamar Co. v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009); In 

re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

14 In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781 

(2015).
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ACI also assigns that the 2015 judgment should be vacated, 

because BHMI failed to present sufficient evidence to support any of its counterclaims. However, ACI did not argue in 

its brief that BHMI failed to present sufficient evidence as 

to its tortious interference claim. Therefore, we only address 

the sufficiency of the evidence as to BHMI’s Junkin Act and 

breach of contract claims.

Second, ACI argues that several of the court’s rulings were 

in error, but failed to assign those rulings as error. For example, 

ACI argues that the district court erroneously allowed BHMI to 

“taint the jury” with (1) evidence that ACI lost the 2014 trial, 

(2) “the irrelevant fact” that ACI initially sued BHMI principals individually along with the company, and (3) evidence of 

the Department of Justice’s second request for information.15

Because ACI failed to assign these rulings as error, we do not 

consider them on appeal.

1. Motion to Vacate 2014 Ju

The first issue is whether the district court abused its discretion in overruling ACI’s motion to vacate the 2014 judgment 

on the basis of denied discovery. In summary, ACI contends 

that the district court should have vacated the 2014 judgment 

and granted a new trial because it erroneously denied ACI 

access to BHMI’s source code and manuals, thereby prohibiting ACI from presenting the evidence needed to prevail on its 

misappropriation claim.

Thus, in order to determine whether the district court 

abused its discretion in overruling ACI’s motion to vacate 

the 2014 judgment, we must determine whether the district 

court erred in denying ACI’s requested discovery. Decisions 

regarding discovery are directed to the discretion of the trial 

court and will be upheld in the absence of an abuse of discretion.16 A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly 

15 Brief for appellant at 47.

16 Moreno v. City of Gering, supra note 8.
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depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition.17

Parties are generally entitled to discovery regarding any 

nonprivileged matter that is relevant to any claim or defense.18

However, under discovery rule § 6-326(c), the court has broad 

discretion to limit the time, place, and manner of discovery as 

required “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The court 

also has broad discretion to modify the timing and sequence of 

discovery “for the convenience of parties and witnesses and in 

the interests of justice.”19

With regard to discovery of trade secret information, 

§ 6-326(c)(7) specifically authorizes a trial court to enter a 

protective order requiring that “a trade secret . . . not be disclosed or be disclosed only in a designated way.” It appears 

that we have not discussed this specific section as it relates 

to discovery of trade secret information, such as source code. 

But because § 6-326(c)(7) is modeled after Fed. R. Civ. P. 

26(c)(1)(G), we look to the federal decisions for guidance.20

[10,11] A review of federal decisions governing trade secret 

discovery reveals that there is no talismanic procedure that may 

be used to obtain the best results in any given case.21 Federal 

courts have taken different approaches, depending on the facts 

17 Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015); Kercher v. 

Board of Regents, 290 Neb. 428, 860 N.W.2d 398 (2015); Richards v. 

McClure, 290 Neb. 124, 858 N.W.2d 841 (2015); Despain v. Despain, 290 

Neb. 32, 858 N.W.2d 566 (2015); Fox v. Whitbeck, 286 Neb. 134, 835 

N.W.2d 638 (2013).

18 § 6-326(b)(1).

19 § 6-326(d).

20 See Kellogg v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 

574 (2005).

21 Vesta Corp. v. Amdocs Management Ltd., 147 F. Supp. 3d 1147 (D. Or. 

2015); DeRubeis v. Witten Technologies, Inc., 244 F.R.D. 676 (N.D. Ga. 

2007); Microwave Research Corp. v. Sanders Associates, 110 F.R.D. 669 

(D. Mass. 1986).
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of a specific case.22 In fact, one article on trade secret discovery identifies nine different approaches.23 However, despite all 

the various approaches, an overarching theme emerges; i.e., the 

moving party’s need for the trade secret information must be 

weighed against the injury that disclosure might cause the party 

opposing the discovery.24 Here, the district court attempted to 

balance these competing interests by requiring ACI to first 

engage in non-trade-secret discovery to provide a factual basis 

for its claim before risking harm to BHMI’s interest in TMS. 

This approach is commonly used by federal courts,25 and we do 

not find it to be untenable in the context of this case.

22 See Kevin R. Casey, Identification of Trade Secrets During Discovery: 

Timing and Specificity, 24 AIPLA Q.J. 191 (1996).

23 Id.

24 In re Remington Arms Co., Inc., 952 F.2d 1029 (8th Cir. 1991); Casey, 

supra note 22.

25 See, Vesta Corp. v. Amdocs Management Ltd., supra note 21, 147 F. Supp. 

3d at 1154 (D. Or. 2015) (“[p]laintiff is required to identify the trade 

secrets it claims Defendants misappropriated with reasonable particularity 

before Defendants are required to produce their confidential information 

and trade secrets to Plaintiff in discovery”); Puritan-Bennett Corp. v. 

Pruitt, 142 F.R.D. 306, 308-09 (S.D. Iowa 1992) (“it is first incumbent 

upon [the plaintiff] to make a showing that there is a substantial basis for 

its claim”); Microwave Research Corp. v. Sanders Associates, supra note 

21, 110 F.R.D. at 674 (D. Mass. 1986) (stating that “before a plaintiff is 

entitled to the type of broad discovery into a defendant’s trade secrets, it 

must show that other evidence which it has gathered through discovery 

provides a substantial factual basis for its claim”); Xerox Corp. v. 

International Business Machines Corp., 64 F.R.D. 367, 371-72 (S.D.N.Y. 

1974) (“[a]t the very least, a defendant is entitled to know the bases for 

plaintiff’s charges against it. The burden is upon the plaintiff to specify 

those charges, not upon the defendant to guess at what they are. Thus, 

after nearly a year of pre-trial discovery, [the plaintiff] should be able to 

identify in detail the trade secrets and confidential information alleged to 

have been misappropriated by [the defendant]”); Storagecraft Technology 

Corp. v. Symantec Corp., No. 2:07cv856CW, 2009 WL 361282 at *2 (D. 

Utah Feb. 11, 2009) (unpublished opinion) (“regardless of the approach, 

it is apparent that ‘[t]he reasonable particularity standard requires that the 

alleged trade secret be described “with adequate specificity to inform the 

defendants what it is alleged to have misappropriated”’”).
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The course of discovery leading up to the first trial is perhaps best summarized in the district court’s order overruling 

ACI’s motion to continue the first trial:

The Court has held numerous discovery hearings as 

well as hearings on the Motion for Summary Judgment.

With regard to discovery, particularly [ACI’s] efforts 

to obtain BHMI’s source code, the Court has repeatedly 

urged the parties to engage in discovery in order to determine whether there exists sufficient evidence to order the 

disclosure of BHMI’s source code. The Court has repeatedly told the parties that it would strongly consider some 

type of disclosure of BHMI’s source code provided something more than “strong suspicions” is used to support the 

disclosure. . . .

. . . .

Though this case was filed in September, 2012, no 

depositions were taken at all in this case until May, 2013 

when [ACI’s] representative, . . . Linberg, was deposed. 

As of this writing in late June, 2014, so far as the Court 

can tell, only 4 other depositions have been taken—those 

of [d]efendants . . . Meeks, Karen Furst-Meeks, Jack . . . 

and MasterCard representative . . . Birge.

Since the Court’s July 26, 2013 Order on discovery, 

the only significant evidence presented to the Court by 

[ACI] as to possible plagiarism is the affidavit of [ACI’s] 

employee, . . . Newsom. In . . . Newsom’s affidavit 

(Ex. 33) he states that he reviewed the emails transmitting information from MasterCard to BHMI (Deposition 

exhibits 24C-D, 25, 26-A-C, 27A-M, 32, 37, 38, 41,49,50, 

52, 55, 69, 73,74) which reference attachments or materials by name or description and concludes: “30. Based 

on my review of the documents detailed above, it is my 

strongly held opinion that some of the materials and 

documents provided by MasterCard to BHMI were never 

in the MDS source code or configurations files. The only 

source for these materials and documents are ACI’s [intellectual property].”
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The emails referenced by . . . Newsom are from and 

between some of the following individuals at MasterCard: 

Larry Kjellberg, Glenn Leach, John Lovgren, Tom Wolak, 

. . . LaRosa, [Hall], George Spies, Diane Dobleske, Mike 

Obeidi, James Perkins and Ken Vagt—none of these people have been deposed to find out what they actually sent, 

received or attached to the correspondence.

[ACI] has repeatedly argued that . . . BHMI made references to [MasterCard regarding] the intent and need for 

MasterCard to produce XPNET materials to BHMI so that 

it could develop TMS and that representations have been 

made that XPNET and TMS are compatible or can interface. One of the individuals that [ACI] believes asked for 

such materials or made statements about compatibility 

with XPNET, is . . . Lynne . . . yet she has never been 

deposed to see if she even received such materials or why 

she may have made such representations. . . .

. . . .

. . . The Court believes that its approach to discovery 

in this case is also quite orthodox and [ACI] has resisted 

to this point the Court’s encouragement to engage in 

vigorous non trade secret discovery in preference to its 

own method of discovery knowing that the trial date 

was approaching. The Court notes that according to 

counsel for [BHMI] and MasterCard, their clients have 

disclosed some 5,000 and 19,000 pages of documents, 

respectively, to [ACI] during the course of this case. It 

is not as if this Court has set an insurmountable bar to 

further discovery.

To be absolutely clear, the Court has never taken 

the position that [ACI] could not have access to the 

source codes under any circumstances. The Court has 

simply asked for evidence to be produced that supports 

a certain level of probability that plagiarism occurred 

before triggering the disclosure of the source code and 

related materials.
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Given that ACI conducted little non-trade-secret discovery, its need for trade secret discovery was much less than it 

would have been had it exhausted all of its non-trade-secret 

resources. In contrast, BHMI’s need to protect its trade secrets 

from ACI was high, given that ACI is BHMI’s competitor and 

could incorporate BHMI’s trade secrets into its own products. 

Accordingly, we conclude that the district court did not abuse 

its discretion in overruling ACI’s motions to compel production of BHMI’s trade secrets, nor did it abuse its discretion 

in overruling ACI’s motion to vacate the 2014 judgment. 

Therefore, this assignment of error is without merit.

2. ACI’s Motion to 

2015 Judgmen

The next issue is whether the district court abused its discretion in overruling ACI’s motions to vacate the 2015 judgment 

for any of the following reasons: (a) the Noerr-Pennington 

doctrine precludes BHMI’s antitrust and tortious interference 

claims, (b) BHMI presented insufficient evidence to support 

its antitrust and breach of contract claims, (c) BHMI presented 

no cognizable evidence of damages to support any claim, (d) 

ACI was denied discovery of BHMI’s trade secret information, and (e) the email attachments were erroneously excluded 

from evidence. We address each of these proposed reasons 

in turn.

(a) Noerr-Pennington Doctrine

First, ACI argues that the 2015 judgment should have been 

vacated because BHMI’s antitrust and tortious interference 

claims were precluded by the Noerr-Pennington doctrine. 

BHMI argues that Noerr-Pennington does not apply to those 

claims and that even if it did, ACI waived the protection 

of Noerr-Pennington by failing to raise it as an affirmative 

defense. Before addressing whether ACI waived the protection 

of Noerr-Pennington, we first set forth the principle known as 

the Noerr-Pennington doctrine.
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[12] Under the Noerr-Pennington doctrine, a party is protected from tort liability for the act of filing a lawsuit.26 This 

doctrine was named after the two U.S. Supreme Court cases 

from which it originated: Eastern R. Conf. v. Noerr Motors27

and Mine Workers v. Pennington.

28 Originally, the doctrine 

exempted from antitrust laws certain petitioning of the courts 

and administrative agencies that resulted in anticompetitive 

effects.29 However, the doctrine was later extended to provide a defense to other kinds of claims where the filing of a 

lawsuit is identified as the wrongful conduct, such as a claim 

of malicious prosecution or tortious interference with a business relationship.30

[13] No matter the context, however, Noerr-Pennington

does not protect a party from liability for the act of filing a 

“sham” lawsuit.31 A lawsuit is a “sham” if it is both (1) objectively baseless in the sense that no reasonable litigant could 

expect success on the merits and (2) subjectively motivated by 

bad faith.32

26 International Motor Contest Ass’n, Inc. v. Staley, 434 F. Supp. 2d 650 

(N.D. Iowa 2006) (citing Porous Media Corp. v. Pall Corp., 186 F.3d 1077 

(8th Cir. 1999); Eastern R. Conf. v. Noerr Motors, supra note 5; and Mine 

Workers v. Pennington, supra note 5).

27 Eastern R. Conf. v. Noerr Motors, supra note 5.

28 Mine Workers v. Pennington, supra note 5.

29 International Motor Contest Ass’n, Inc. v. Staley, supra note 26.

30 Id. (citing State of S.D. v. Kansas City Southern Industries, 880 F.2d 40 

(8th Cir. 1989), and Hufsmith v. Weaver, 817 F.2d 455 (8th Cir. 1987)). 

See IGEN Intern., Inc. v. Roche Diagnostics GmbH, 335 F.3d 303 (4th Cir. 

2003).

31 Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, 

Inc., 508 U.S. 49, 61, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993).

32 International Motor Contest Ass’n, Inc. v. Staley, supra note 26 (citing 

Porous Media Corp. v. Pall Corp., supra note 26, and Professional 

Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., supra

note 31).
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We now turn to consider whether ACI waived any protection Noerr-Pennington may have provided by failing to 

reference it in its answer to BHMI’s second amended counterclaim. Because an affirmative defense must be pleaded 

to be considered at the trial court level and on appeal,33 the 

issue is whether the Noerr-Pennington doctrine is an affirmative defense.

ACI argues that Noerr-Pennington is not an affirmative 

defense and that BHMI “has the burden to prove that immunity does not attach to the challenged activity.”34 In support 

of its argument, ACI cites a footnote from the 11th Circuit’s 

opinion in McGuire Oil Co. v. Mapco, Inc.35 The footnote 

states, “Under the Sherman Act, Noerr-Pennington immunity 

is not merely an affirmative defense. Rather, ‘the antitrust 

plaintiff has the burden of establishing that the defendant 

restrained trade unreasonably, which cannot be done when 

the restraining action is that of the government.’”36 We do 

not read this statement to mean that Noerr-Pennington is 

not an affirmative defense; instead, we read it to mean that 

although Noerr-Pennington is an affirmative defense, the antitrust plaintiff still has the burden to prove the elements of an 

antitrust case. In other words, the statement dealt with burdens 

of proof and not with the status of Noerr-Pennington as an 

affirmative defense.

In contrast to ACI’s contention, the Fourth and Fifth 

Circuits, as well as several state appellate courts, have all 

held that the Noerr-Pennington doctrine is an affirmative 

33 Neb. Ct. R. Pldg. § 6-1108(c). See Funk v. Lincoln-Lancaster Cty. Crime 

Stoppers, 294 Neb. 715, 885 N.W.2d 1 (2016).

34 Reply brief for appellant at 1.

35 McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552 (1lth Cir. 1992).

36 Id. at 1558 n.9 (quoting Phillip E. Areeda & Herbert Hovenkamp, Antitrust 

Law, An Analysis of Antitrust Principles and Their Application § 203.4c 

(Supp. 1990)).
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defense.37 The Fifth Circuit held, for example, that “the 

Noerr-Pennington doctrine should be raised as an affirmative defense” and explained that generally, “a party’s failure 

to raise an affirmative defense in its first responsive pleading 

results in waiver.”38 We agree with these courts.

[14,15] An affirmative defense raises new matters which, 

assuming the allegations in the petition to be true, constitutes 

a defense to the merits of a claim asserted in the petition.39

Here, ACI’s claim of Noerr-Pennington immunity raised a new 

matter, which if established, would constitute a defense to the 

merits of, at least, BHMI’s antitrust counterclaim. Accordingly, 

the Noerr-Pennington defense is an affirmative defense.

Nevertheless, ACI contends that even if Noerr-Pennington

is an affirmative defense, its failure to raise that defense in 

the pleadings did not constitute waiver for two reasons. First, 

ACI contends that the failure to plead the Noerr-Pennington

defense does not result in waiver because “[c]onstitutional 

rights are presumed not to be waived,” and Noerr-Pennington

is rooted in the First Amendment’s right to petition the government.40 We find this argument unpersuasive, however, because 

other affirmative defenses that are rooted in the Constitution 

are waived if not pled. For example, “truth” is an affirmative 

defense in a defamation action, and despite the fact that it is 

37 See, Waugh Chapel South v. United Food and Commercial, 728 F.3d 354 

(4th Cir. 2013); Bayou Fleet, Inc. v. Alexander, 234 F.3d 852 (5th Cir. 

2000); Lanzer v. Louisville, 2016 Ohio 8071, ___ N.E.3d ___ (2016); 

Bauldau v. Jonkers, 229 W. Va. 1, 725 S.E.2d 170 (2011); Astoria 

Entertainment, Inc. v. Debartolo, 12 So. 3d 956 (La. 2009); RRR Farms, 

Ltd v. American Horse Protection, 957 S.W.2d 121 (Tex. App. 1997).

Contra Las Vegas Sands v. Culinary Local # 226, 82 Fed. Appx. 580, 

585 (9th Cir. 2003) (“[f]or a plaintiff to succeed in invoking the sham 

exception to defeat Noerr-Pennington immunity, a plaintiff must plead 

with specificity the ‘sham-ful’ nature of the alleged interference”).

38 Bayou Fleet, Inc. v. Alexander, supra note 37, 234 F.3d at 860.

39 See Funk v. Lincoln-Lancaster Cty. Crime Stoppers, supra note 33.

40 Reply brief for appellant at 1.
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rooted in the First Amendment,41 it is waived if not pled.42

Additionally, we have held that sovereign immunity, which is 

rooted in the 11th Amendment,43 is an affirmative defense that 

is waived if not pled.44

Second, ACI suggests that we should adopt the rule set forth 

in Bayou Fleet, Inc. v. Alexander45 that an “affirmative defense 

is not waived if it is raised at a ‘pragmatically sufficient time, 

and the plaintiff was not prejudiced in its ability to respond.’” 

However, even if we adopted such a rule, we find that ACI 

did not raise the Noerr-Pennington defense at a pragmatically 

sufficient time. In Bayou Fleet, Inc., the motion for summary 

judgment setting forth the defense of the Noerr-Pennington

doctrine had been filed 1 year before trial. Here, ACI did not 

mention the Noerr-Pennington defense until the summary 

judgment hearing on July 31, 2015, which occurred less than 

2 months prior to the second trial and nearly 3 years after the 

case began. And ACI did not attempt to amend its pleadings to 

add the defense at that time.

Although prejudice to the plaintiff may be avoided in some 

cases by a continuation of trial, such was not the case here. 

Importantly, both parties in this case requested expedited discovery, and at multiple hearings, BHMI expressed that the 

litigation was having a negative effect on its ability to market 

TMS and that continuation of the trial was not a favorable 

option. The court also indicated that it was unwilling to continue trial. In light of these facts, we conclude that even if we 

41 See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 490, 95 S. Ct. 1029, 43 L. 

Ed. 2d 328 (1975) (“the defense of truth is constitutionally required where 

the subject of the publication is a public official or public figure”).

42 McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).

43 See Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).

44 Fuhrman v. State, 265 Neb. 176, 182, 655 N.W.2d 866, 873 (2003) 

(“sovereign and qualified immunity are affirmative defenses which should 

be affirmatively pleaded or are considered waived”).

45 Bayou Fleet, Inc. v. Alexander, supra note 37, 234 F.3d at 860.
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adopted an exception to the rule that affirmative defenses are 

required to be plead, such exception would not apply here.

We note that on September 11, 2015, 3 days before the 

second trial, ACI filed a motion requesting leave to file 

an amended answer to add the Noerr-Pennington defense. 

Because ACI took the position that Noerr-Pennington was not 

an affirmative defense, the district court overruled the motion, 

reasoning that the pleadings need only set forth affirmative 

defenses. Because ACI did not assign or argue that this ruling was in error, we do not address on appeal whether the 

district court erred in overruling ACI’s motion to amend 

its pleadings.46

Because we find that ACI waived the Noerr-Pennington

defense by failing to raise it as an affirmative defense, the 

district court did not abuse its discretion in overruling ACI’s 

motion to vacate the 2015 judgment for this reason.

(b) Sufficiency of Evidence

ACI next assigns that the 2015 judgment should have been 

vacated, because BHMI did not present sufficient evidence 

to support the jury’s verdict on the Junkin Act and breach of 

contract claims. When reviewing a jury verdict, the appellate 

court considers the evidence and resolves evidentiary conflicts 

in favor of the successful party.47 A jury verdict may not be 

set aside unless clearly wrong, and it is sufficient if there is 

competent evidence presented to the jury upon which it could 

find for the successful party.48

(i) Junkin Act

We first consider the sufficiency of the evidence to support 

BHMI’s Junkin Act claim. The Junkin Act makes it illegal 

to “monopolize, or attempt to monopolize, or combine or 

46 In re Claims Against Pierce Elevator, supra note 14.

47 Chadron Energy Corp. v. First Nat. Bank, supra note 9.

48 Koster v. P & P Enters., supra note 10.
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conspire with any other person or persons, to monopolize any 

part of the trade or commerce.”49 The Junkin Act allows “[a]ny 

person who is injured in his or her business or property” by 

a violation of the Junkin Act to recover damages and costs of 

suit, including a reasonable attorney fees.50

[16,17] For purposes of the Junkin Act, monopolization 

consists of two elements: (1) the possession of monopoly 

power in the relevant market and (2) the willful acquisition 

or maintenance of that power as distinguished from growth or 

development as a consequence of a superior product, business 

acumen, or historic accident.51 The existence of monopoly 

power ordinarily is inferred from the seller’s possession of a 

predominant share of the market.52

[18-20] Despite the broad remedial language of the Junkin 

Act, not every person claiming an injury from a Junkin 

Act violation can recover damages.53 To recover damages, 

a plaintiff must prove an antitrust injury.54 To constitute an 

antitrust injury, the injury must reflect the anticompetitive 

effect of the violation or the anticompetitive effects of anticompetitive acts made possible by the violation.55 As noted 

by the 11th Circuit in Jacobs v. Tempur-Pedic Intern., Inc.,

56

“Actual anticompetitive effects include, but are not limited 

49 § 59-802.

50 § 59-821.

51 Health Consultants v. Precision Instruments, 247 Neb. 267, 527 N.W.2d 

596 (1995) (citing Eastman Kodak Co. v. Image Technical Services, Inc., 

504 U.S. 451, 112 S. Ct. 2072, 119 L. Ed. 2d 265 (1992)).

52 Eastman Kodak Co. v. Image Technical Services, Inc., supra note 51.

53 See Kanne v. Visa U.S.A., 272 Neb. 489, 723 N.W.2d 293 (2006).

54 See, § 59-821; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 

477, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977).

55 Id.

56 Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1339 (11th Cir. 

2010).
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to, reduction of output, increase in price, or deterioration 

in quality.”

With respect to BHMI’s Junkin Act claim, ACI argues only 

that there was insufficient evidence of an “antitrust injury”; it 

does not argue that there was insufficient evidence to establish 

any other element of BHMI’s Junkin Act claim.

ACI argues that BHMI did not present evidence of an 

antitrust injury because it did not show any anticompetitive 

effects of ACI’s Junkin Act violation. In support of that argument, ACI cites Cobb Theatres III v. AMC Entertainment 

Holdings,

57 for the proposition that to support an award of 

damages, “competition must be shown not through harm to 

the plaintiff, but though market-wide impact such as increased 

prices, reduced output, or reduced product quality resulting 

from the defendant’s conduct.”58 ACI argues that BHMI failed 

to prove increased prices, reduced output, or reduced product 

quality; therefore, ACI claims, BHMI has not shown an antitrust injury.

Although we note that the court in Cobb Theatres III did 

not limit evidence of an antitrust injury to those three factors,59

we conclude that BHMI did submit evidence of those factors. 

For example, BHMI presented evidence of a reduced output 

and an increased price when it showed that, by keeping TMS 

out of the market, ACI deprived consumers and the market of 

a more affordable option. In fact, multiple witnesses testified 

that TMS could not be marketed because of ACI’s lawsuit, and 

57 Cobb Theatres III v. AMC Entertainment Holdings, 101 F. Supp. 3d 1319 

(N.D. Ga. 2015).

58 Brief for appellant at 34.

59 See Cobb Theatres III v. AMC Entertainment Holdings, supra note 57 

(quoting Jacobs v. Tempur-Pedic Intern., Inc., supra note 56, 626 F.3d at 

1339, for proposition that “[a]ctual anticompetitive effects include, but are 

not limited to, reduction of output, increase in price, or deterioration in 

quality” (emphasis supplied)).
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O’Neil testified that TMS was approximately half the price of 

XPNET. BHMI also presented evidence of reduced product 

quality. Specifically, BHMI presented evidence that TMS was 

capable of running on multiple platforms, while XPNET could 

run only on HP NonStop hardware. Thus, the jury could infer 

that the market was deprived of higher quality software with 

additional features.

Based on the evidence set forth above, we conclude that 

BHMI presented competent evidence upon which the jury 

could find that BHMI sustained an antitrust injury. Therefore, 

the jury was not clearly wrong in finding in favor of BHMI 

on its Junkin Act claim, and the district court did not abuse its 

discretion in overruling ACI’s motion to vacate the 2015 judgment for this reason.

(ii) Breach of Contract

ACI also claims that BHMI presented insufficient evidence 

to support the jury’s finding that ACI violated the NDA. In 

this regard, ACI sets forth two arguments. First, ACI contends 

that because the NDA protected only “non-public information,” ACI could not have breached the agreement, because the 

allegations in ACI’s complaint are public.60 Second, ACI suggests that the jury misinterpreted the NDA to be a “‘never sue 

agreement.’”61 We address both of these arguments in turn and 

find neither to have any merit.

[21,22] The interpretation of a contract is a question of law, 

in connection with which an appellate court has an obligation to reach its conclusions independently of the determinations made by the court below.62 When the terms of a contract 

are clear, they are to be accorded their plain and ordinary 

60 Brief for appellant at 33.

61 Id.

62 Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d 

178 (2012).
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meaning.63 As noted above, paragraph 2(c) of the NDA provides, in relevant part: “For the avoidance of doubt, [ACI] 

understands and agrees that in no event shall [ACI] utilize 

the Confidential Information of [BHMI] in any manner whatsoever . . . (iii) in any legal action directed toward [BHMI] 

or its vendors, representatives, agents, or customers . . . .” 

(Emphasis supplied.)

The terms of the NDA are clear: ACI was not to use 

BHMI’s confidential information “in any manner whatsoever,” including to form the basis of ACI’s lawsuit against 

BHMI. In ACI’s complaint against BHMI, ACI alleged that 

“BHMI agreed to allow ACI representatives to conduct an 

examination of the operations, configurations, and application programming manuals related to [TMS]” and that “[a]s a 

result of the inspection, ACI found a high degree of conceptual similarity . . . .”

Although ACI did not disclose the specifics of the confidential information within the complaint, the NDA did not 

prohibit ACI from merely disclosing the information; it prohibited ACI from utilizing the information in any manner 

whatsoever, including in a legal action directed toward BHMI 

or its customers. Based on these allegations, we conclude that 

the jury did not commit clear error in finding that ACI utilized 

BHMI’s confidential information to form the basis of its lawsuit in direct violation of the NDA.

Turning to ACI’s second argument, we disagree that the 

NDA was misinterpreted as a “never sue agreement.” The 

language of the NDA does not preclude a legal action against 

BHMI. It simply precluded ACI from using in a legal action 

the information that BHMI provided to it during the course of 

63 Pavers, Inc. v. Board of Regents, 276 Neb. 559, 755 N.W.2d 400 (2008); 

Katherine R. Napleton Trust v. Vatterott Ed. Ctrs., 275 Neb. 182, 745 

N.W.2d 325 (2008); Sayah v. Metropolitan Prop. & Cas. Ins. Co., 273 

Neb. 744, 733 N.W.2d 192 (2007).
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the meetings. The same information could have been obtained 

and used against BHMI through proper methods such as traditional discovery.

Accordingly, we find sufficient competent evidence to support the jury verdict that ACI violated the NDA. Therefore, the 

district court did not abuse its discretion in overruling ACI’s 

motion to vacate the 2015 judgment for this reason.

(c) Evidence of Damages

ACI next assigns that the district court erred in overruling its motion to vacate the 2015 judgment, because BHMI 

presented “no cognizable evidence of damages to support any 

claim.” In this regard, ACI sets forth two arguments. First, 

ACI argues that Jack’s opinion about BHMI’s lost profits 

should not have been admitted because he was not qualified 

to testify as an expert. Second, ACI argues that even if Jack 

was qualified to testify, the evidence he presented was insufficient to support the jury’s award of $43,806,362.70. We 

address each of these arguments in turn and find neither to 

have any merit.

(i) Jack’s Qualification as 

Expert Witness

Generally, a trial court’s ruling in receiving or excluding 

an expert’s testimony which is otherwise relevant will be 

reversed only when there has been an abuse of discretion.64

An abuse of discretion occurs when a trial court’s decision is 

based upon reasons that are untenable or unreasonable or if 

its action is clearly against justice or conscience, reason, and 

evidence.65

An expert’s opinion is ordinarily admissible under Neb. Rev. 

Stat. § 27-702 (Reissue 2016) if the witness (1) qualifies as 

an expert, (2) has an opinion that will assist the trier of fact, 

64 Robb v. Robb, supra note 11.

65 Hartman v. Hartman, supra note 12.
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(3) states his or her opinion, and (4) is prepared to disclose the 

basis of that opinion on cross-examination.66

ACI argues that the district court erred in finding that Jack 

was qualified to testify about BHMI’s future lost profits, 

because Jack was not formally trained in performing a lost 

profits analysis and did not have an accounting degree.

[23-25] However, there is no exact standard for fixing the 

qualifications of an expert witness, and a trial court is allowed 

discretion in determining whether a witness is qualified to 

testify as an expert. Unless the court’s finding is clearly erroneous, such a determination will not be disturbed on appeal.67

Experts or skilled witnesses will be considered qualified if 

they possess special skill or knowledge respecting the subject 

matter involved superior to that of persons in general, so as 

to make the expert’s formation of a judgment a fact of probative value.68 And a witness may qualify as an expert by virtue of either formal training or actual practical experience in 

the field.69

As BHMI points out, we have previously allowed principals of businesses to opine regarding lost profits suffered by 

their businesses. For example, we found that the owner of 

farmland had sufficient basis to opine on lost profits resulting 

from a decrease in crop yields,70 that a principal stockholder 

of a manufacturing business was qualified to testify about lost 

profits of that business,71 and that the owner of a distributorship was qualified to testify regarding lost profits suffered by 

his business.72 Although we allowed owners to testify on lost 

66 Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004).

67 State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).

68 Id.

69 Id.

70 Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012).

71 Alliance Tractor & Implement Co. v. Lukens Tool & Die Co., 204 Neb. 

248, 281 N.W.2d 778 (1979).

72 Diesel Service, Inc. v. Accessory Sales, Inc., 210 Neb. 797, 317 N.W.2d 

719 (1982).
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profits, we note that in each case, it was the practical experience of the owner as it relates to that particular business which 

established the foundation for the opinion, not just ownership. 

The same is true here.

Jack’s knowledge about BHMI’s lost profits is clearly superior to that of persons in general. Jack handles all of BHMI’s 

finances and has had 30 years’ practical experience running 

BHMI. Jack is knowledgeable about the costs incurred to 

develop and license TMS. He is aware of BHMI’s current and 

potential customers and the prices BHMI charges for its licensing. For these reasons, we find the district court did not commit 

clear error in finding that Jack was qualified to testify, did not 

abuse its discretion in allowing Jack to opine on BHMI’s lost 

profits, and did not abuse its discretion in overruling ACI’s 

motion to vacate the 2015 judgment due to the qualifications 

of Jack.

(ii) Sufficiency of Damages Evidence

ACI also contends that BHMI’s damages evidence was 

insufficient, because Jack failed to account for certain costs in 

his future lost profits calculation and because BHMI failed to 

offer business records to support his calculation.

[26] A plaintiff’s burden of offering evidence sufficient 

to prove damages cannot be sustained by evidence which is 

speculative and conjectural, but proof of damages to a mathematical certainty is not required; the proof is sufficient if 

the evidence is such as to allow the trier of fact to estimate 

actual damages with a reasonable degree of certainty and 

exactness.73

a. Costs

ACI argues that BHMI’s damages evidence was insufficient, 

because Jack failed to take into account (1) costs of developing 

new versions of TMS, (2) maintenance costs, and (3) general 

overhead costs.

73 Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003).
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As for costs of developing new versions of TMS, ACI 

asserts that Jack “admitted that, although BHMI would expect 

to release subsequent versions of TMS during the twelve-year 

period of his damages model, his model did not include the 

costs of developing those new versions.”74 However, Jack’s 

testimony in this regard is as follows:

Q. . . . [T]here certainly would have been new versions 

developed of TMS over a 12-year period? Can we agree 

with that?

A. No, sir, I don’t necessarily agree with that.

Q. All right. So software companies don’t routinely 

come up with version 1.0 and 1.2? That would never happen with your software, right?

. . . .

A. They may or may not, sir.

Q. But you didn’t figure that in. You just figured for 

12 straight years TMS — there would be no new versions 

whatsoever, correct?

A. I extrapolated costs and revenue based on what we 

had seen and what I knew.

Q. That’s not my question. You said you did not 

believe that there would be any new versions over a 

12-year period for TMS, correct?

A. I’m not sure I said that. I’m saying that I don’t 

know, but there may or may not be.

Whether or not new versions of TMS would have been 

developed is a question of fact for the jury. Resolving this evidentiary conflict in favor of BHMI, we conclude that it would 

be speculative to attribute costs to the development of new 

versions of TMS, because it is unknown whether new versions 

of TMS would be released.

We turn now to the “maintenance costs” and “general overhead costs” which ACI asserts BHMI was required to account 

74 Brief for appellant at 39.
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for but failed to do so.75 To support its assertion that Jack 

failed to account for “maintenance costs,” ACI points to the 

following testimony:

Q. Isn’t there a cost to your company to provide the 

maintenance?

A. Not really. Not in the case of TMS. We have not 

seen that cost. For example, if people call and say, “I’ve 

got a problem” or “I need to do something,” we don’t 

have a separate help desk facility. Certainly not one that’s 

dedicated to TMS.

Essentially, if somebody calls in for any reason for 

any of our products, we will assign the question or the 

issue or the problem to one of our staff members who’s 

doing that along with other duties. So essentially that is 

what is considered to be a fixed cost to deal with those 

kinds of issues. So it’s not really a cost that comes out 

of our pocket as such because we’re already paying 

that individual for doing that kind of work plus others. So it’s not a particular cost allocated specifically 

against TMS.

[27] Based on Jack’s testimony, it is clear that the above 

“maintenance costs” are overhead costs. Overhead costs are 

business expenses that cannot be allocated to a particular service or product.76 BHMI’s cost of employees to run the help 

desk is an overhead cost because it cannot be allocated specifically to TMS or any other product or service. Accordingly, 

ACI’s arguments about “maintenance costs” and “general overhead costs” run together and present the same issue.

In support of ACI’s argument that Jack should have taken 

BHMI’s general overhead costs into account, ACI cites Home 

Pride Foods v. Johnson.

77 ACI argues that this case shows 

75 Id.

76 Black’s Law Dictionary 1278 (10th ed. 2014). See, also, 177 Neb. Admin. 

Code, ch. 5, § 003 (2006).

77 Home Pride Foods v. Johnson, 262 Neb. 701, 634 N.W.2d 774 (2001).
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that Nebraska law requires that overhead costs be taken into 

account in lost profits analyses. However, we do not find such 

a requirement in our reading of Home Pride Foods.

In Home Pride Foods, we held that a plaintiff has not presented sufficient evidence of lost profits where he or she presents only evidence of gross profits and does not present evidence of any costs. In that case, the plaintiff had not presented 

any evidence of any costs, including overhead costs. But we 

never held that the plaintiff was required to subtract overhead 

costs from its revenue in calculating its lost profits. Instead, we 

concluded that the plaintiff failed to present sufficient evidence 

to support an award of damages, because only net profits are 

recoverable, and that the plaintiff’s net profits could not be 

calculated where there was no evidence of costs.

Contrary to ACI’s argument on appeal, “‘[t]he weight of 

authority holds that fixed overhead expenses need not be 

deducted from gross income to arrive at the net profit properly 

recoverable.’”78 This rule has been explained:

“The true rule seems to be that the prospective profits 

should be diminished by charges composing an essential 

element in the cost to manufacture . . . . Essential elements in such cost do not include remote costs, overhead or otherwise, but are confined to expenditures that 

would necessarily have been made in the performance 

of the contract. The only matter of concern is the detriment suffered or benefit lost as a result of the breach. If 

the fixed expenses neither increased nor decreased as a 

consequence of the nonperformance of the contract, there 

would be no loss or benefit arising from that factor.”79

78 Vanwyk Textile Systems v. Zimmer Mach. Amer., Inc., 994 F. Supp. 350, 

383 (W.D.N.C. 1997).

79 1 Robert L. Dunn, Recovery of Damages for Lost Profits § 6.5 at 487-88 

(6th ed. 2005) (quoting Oakland Cal. Towel Co. v. Sivils, 52 Cal. App. 

2d 517, 126 P.2d 651 (1942)). Accord Vanwyk Textile Systems v. Zimmer 

Mach. Amer., Inc., supra note 78.
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Here, consistent with the rule in Home Pride Foods, BHMI 

presented evidence of its lost net profits by presenting evidence of lost revenue and evidence of the expenses attributable 

to TMS. We therefore conclude that BHMI presented sufficient evidence upon which the jury could reasonably estimate 

BHMI’s lost net profits.

b. Supporting Financial Data

ACI also argues that BHMI’s evidence of damages was 

insufficient because BHMI “failed to offer any quantifiable 

business records (income tax return, proft/loss statements or 

business records) to support its future lost profits calculation.”80

In support of its argument, ACI cites Evergreen Farms v. 

First Nat. Bank & Trust 81 and World Radio Labs. v. Coopers 

& Lybrand.

82 In Evergreen Farms, we held that a claim for 

lost profits must be supported by “some financial data which 

permit an estimate of the actual loss to be made with reasonable certitude and exactness.”83 In that case, we found that 

the plaintiff had not submitted sufficient evidence to sustain 

the jury’s award of damages where the only evidence of damages was the testimony of one of the partners of Evergreen 

Farms (Evergreen). In calculating Evergreen’s lost profits, 

the partner assumed that Evergreen would be paid to feed 

an additional 2,000 head of cattle at a rate of 10 cents per 

head. Not only were these numbers not supported by any of 

Evergreen’s financial documents, but the numbers were not 

based on any reliable evidence. The partner provided no basis 

for his assumption that Evergreen would have made 10 cents 

80 Brief for appellant at 38.

81 Evergreen Farms v. First Nat. Bank & Trust, 250 Neb. 860, 553 N.W.2d 

728 (1996).

82 World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1 

(1996).

83 Evergreen Farms v. First Nat. Bank & Trust, supra note 81, 250 Neb. at 

868, 553 N.W.2d at 734.
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per head of cattle, and the partner’s assumption that Evergreen 

would have had an additional 2,000 head of cattle was based 

on “the fact that Evergreen was feeding 3,500 to 4,000 head 

of cattle and ‘all of a sudden we dropped down to from 1,500 

to 2,000 for two years.’”84 Because we determined that this 

evidence was too speculative and conjectural, we held that 

Evergreen’s damages evidence was insufficient to support the 

jury’s award.

In World Radio Labs., we also found that the damages 

evidence was insufficient. In that case, the plaintiff’s chief 

financial officer estimated lost profits by assuming that the 

plaintiff would have made the same amount of profit that 

it did during another time period. We concluded that the 

chief financial officer’s testimony was too speculative and 

conjectural because his estimation “failed to account for the 

many differences in the business between [the] time periods 

[being compared].”85

Even if we interpreted these two cases, as ACI urges, to 

require a plaintiff to submit business records to support its 

claim for lost profits, we conclude that BHMI did submit 

business records to support its claim. The prices Jack used in 

his lost profits analysis were based on actual contracts that he 

negotiated with MasterCard and FNBO for BHMI, which were 

received into evidence.

We further note that Jack’s lost profits analysis was not 

solely supported by his own testimony, but also by the testimony of Scheer and Saltwick. Scheer testified that given the 

level of interest expressed by target customers, it was reasonable for BHMI to expect to license TMS to two customers per 

year. Saltwick testified that he agreed there was “significant 

market demand for solutions . . . to replace ACI software.” 

In a market of 300 customers, a “significant market demand” 

84 Id. at 867, 553 N.W.2d at 734.

85 World Radio Labs. v. Coopers & Lybrand, supra note 82, 251 Neb. at 281, 

557 N.W.2d at 13.
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would surely encompass two customers per year, which is less 

than 1 percent of the market.

For the foregoing reasons, we conclude that BHMI presented sufficient evidence to allow the jury to estimate actual 

damages with a reasonable degree of certainty and exactness. 

We therefore find that the district court did not abuse its discretion in overruling ACI’s motion to vacate the 2015 judgment 

for this reason.

(d) Denied Discovery

ACI next assigns that the district court erred in overruling its motion to vacate the 2015 judgment because ACI was 

denied discovery of BHMI’s trade secrets. We have previously addressed this issue with regard to the 2014 judgment. A 

review of the record reveals that after the first trial and before 

the second trial, ACI never filed a motion to compel the discovery of BHMI’s trade secrets. Thus, for the same reasons set 

forth in the section on the 2014 judgment, we conclude that the 

district court did not abuse its discretion in overruling ACI’s 

motion to vacate the 2015 judgment.

(e) Exclusion of Email Attachments

Next, ACI assigns that the district court erred in overruling 

its motion to vacate the 2015 judgment because it excluded 

evidence that would allow ACI to show that it filed the original 

lawsuit with good faith. The only evidence that ACI argues was 

improperly excluded was the evidence that ACI obtained in the 

federal litigation and evidence that ACI survived motions to 

dismiss and motions for summary judgment.

[28,29] In proceedings where the Nebraska Evidence 

Rules apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is a factor only 

when the rules make such discretion a factor in determining 

admissibility.86 To constitute reversible error in a civil case, 

86 Nickell v. Russell, 260 Neb. 1, 614 N.W.2d 349 (2000).
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the admission or exclusion of evidence must unfairly prejudice 

a substantial right of the litigant complaining about evidence 

admitted or excluded.87

We first address ACI’s claim that the district court erroneously excluded the evidence obtained in the federal litigation. 

After reviewing the record, we conclude that the district court 

did not make a ruling on the admissibility of such evidence 

because that evidence was never offered during the trial. The 

record reflects that at a hearing on July 31, 2015, ACI first 

offered exhibit 314, which was the emails and attachments 

obtained in the federal litigation, in support of its motion to 

vacate the 2014 judgment.

On August 26, 2015, ACI filed a motion requesting that the 

court rule on the admissibility of exhibit 314 for purposes of 

the second trial, and it set the motion for hearing on September 

14, which was the first day of the trial. However, we have no 

record of that hearing, no record of the district court’s ruling 

on its admissibility, and no record that ACI ever offered exhibit 

314 during the trial.

[30] Generally, a motion which is never called to the attention of the court is presumed to have been waived or abandoned by the moving party, and, where no ruling appears to 

have been made on a motion, the presumption is, unless it 

otherwise appears, that the motion was waived or abandoned.88

Because no ruling appears to have been made on the motion, 

we find that the motion was either waived or abandoned. And 

because we find no evidence that ACI ever offered exhibit 

314 at the trial, we cannot say that the district court abused 

its discretion in not admitting it where it was never given the 

opportunity to do so.

Even if the evidence obtained in the federal trial had been 

improperly excluded, we fail to see how such exclusion would 

87 Id.

88 Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., 235 Neb. 207, 

454 N.W.2d 671 (1990).
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have unfairly prejudiced ACI. In other words, we fail to see 

how the evidence obtained during the federal trial would have 

showed that ACI’s claim was filed with good faith and not with 

the purpose of interfering with BHMI’s business expectations. 

It is undisputed that ACI did not have the materials contained 

within exhibit 314 at the time it filed the initial lawsuit against 

BHMI and thus these materials could not have formed the 

basis of its suit.

We now turn to ACI’s argument that the district court erroneously excluded testimony that ACI survived motions to 

dismiss and motions for summary judgment. ACI argues that 

the district court should have allowed the testimony, because 

it would have showed that ACI’s lawsuit was not a “‘sham 

exception’” for purposes of the Noerr-Pennington defense.89

However, because we held that ACI waived Noerr-Pennington

by failing to plead it as a defense, we cannot find that the 

district court abused its discretion in excluding this evidence 

where it had no prejudicial effect on ACI.

Because there is no record that ACI ever offered exhibit 

314 at the trial and because the testimony at issue would have 

had no prejudicial effect on ACI, we cannot find that the district court erroneously excluded this evidence. We therefore 

conclude that the district court did not abuse its discretion in 

overruling ACI’s motion to vacate the 2015 judgment for this 

reason, and we find this error is without merit.

3. Attorney Fe

Lastly, ACI assigns that the district court abused its discretion in awarding BHMI $2,732,962.50 in attorney fees and 

costs. We note that ACI does not argue that BHMI was not 

entitled to costs and attorney fees; § 59-821 allows a party 

injured by a violation of the Junkin Act to recover the costs 

of suit, including a “reasonable attorney’s fee.” Instead, ACI 

89 Brief for appellant at 47 (citing Professional Real Estate Investors, Inc. v. 

Columbia Pictures Industries, Inc., supra note 31).
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argues that the amount of the award was an abuse of discretion for two reasons. First, ACI argues that the district court 

could not have applied the factors set forth in our case law for 

determining a reasonable attorney fee, because BHMI did not 

offer legal invoices into evidence. Second, ACI argues that the 

district court had no basis for multiplying BHMI’s rate.

[31] We have generally said that if an attorney seeks a 

statutory attorney fee, that attorney should introduce at least 

an affidavit showing a list of the services rendered, the time 

spent, and the charges made.90 Here, BHMI submitted into 

evidence an affidavit executed by Davidson, the chair of a 

local law firm’s litigation section, attesting to the reasonableness of the fees submitted by the law firm representing 

BHMI. In the affidavit, Davidson set forth the hours and 

rates of the attorneys and professional staff who worked on 

the case, which was based upon a detailed summary of work 

provided by counsel for BHMI. We note that ACI did not 

submit any evidence to dispute the contents of the affidavit. 

Although BHMI did not submit any legal invoices into evidence, we are unaware of any relevant information that would 

have been contained in the legal invoice that was not also 

in Davidson’s affidavit. Based on our review of the affidavit, we conclude that it provided sufficient information upon 

which the district court could determine proper and reasonable 

attorney fees.

[32] We now turn to ACI’s argument that the district court 

abused its discretion in applying a multiplier to the fee. When 

an attorney fee is authorized, the amount of the fee is addressed 

to the trial court’s discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion.91 An award 

of attorney fees involves consideration of such factors as the 

nature of the case, the services performed and results obtained, 

90 Black v. Brooks, 285 Neb. 440, 827 N.W.2d 256 (2013).

91 See cases cited supra note 13.
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the length of time required for preparation and presentation of 

the case, the customary charges of the bar, and general equities 

of the case.92

Here, the district court found that the high risk and complex 

nature of the case warranted significant attorney fees, explaining that antitrust actions are one of the most difficult actions 

to litigate. Moreover, the court noted that the subject matter 

of the case involved highly technical issues relating to software and concepts such as source code, object code, application programming interfaces, “wrappers, literals, defines, and 

other technical concepts that are not generally understood by 

laypeople.” The court further noted that the case was vigorously contested by both parties and involved two protracted 

jury trials.

As for the services performed, the district court found 

that claims under the Junkin Act have rarely been litigated 

in Nebraska and that prosecuting such a claim required skill, 

care, and diligence. Moreover, the work involved extensive 

discovery and research, working with experts, and strategizing for and attending trial, among other tasks. The parties 

exchanged “tens of thousands” of pages of documents during 

the course of discovery and were required to review “tens of 

thousands” of other documents from nonparties. Additionally, 

the case involved numerous depositions, which required the 

parties to travel out of state to St. Louis, Missouri, and 

Chicago, Illinois.

As for the results obtained, the district court found that 

BHMI’s case was the only case within the last 100 years 

where a party successfully proved a Junkin Act claim. The 

court further noted that counsel for BHMI obtained an 

“excellent result” for BHMI, which warranted an enhancement of the attorney fees. As for the length of time required 

to prepare the case, the district court found that the case 

involved extended litigation, which required BHMI’s attorneys, 

92 See Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008).
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paralegals, and technical support staff to devote over 2,800 

hours to the case.

After reviewing the district court’s detailed explanation for 

its award of attorney fees, we agree that the above factors 

support a significant attorney fee. We therefore find that the 

district court did not abuse its discretion in awarding BHMI 

$2,732,962.50.

VI. CONCLUSION

For the reasons set forth above, we conclude that the district 

court did not abuse its discretion in overruling ACI’s motions 

to vacate the 2014 and 2015 judgments and did not abuse its 

discretion in awarding BHMI $2,732,962.50 in attorney fees. 

We therefore affirm.

Affir

Miller-Lerman, J., not participat