VKGS v. Planet Bingo
962 N.W.2d 909
Neb.2021Background
- VKGS (Video King) and Planet Bingo (with subsidiary Melange) were competitors; dispute centered on EPIC (Melange) and OMNI (VKGS) bingo software and a 2005 confidentiality provision.
- Melange developed EPIC; Planet Bingo alleged VKGS reverse-engineered EPIC to build OMNI; VKGS alleged Planet Bingo breached contracts and tortiously interfered.
- During VKGS’s case, VKGS sought to introduce a 2001 Canadian patent application (158 pages of alleged source code) obtained from the internet; the court excluded it for lack of authentication and surprise, and offered to allow it in Planet Bingo’s case.
- The court bifurcated the trials (VKGS’s claims tried first): jury 1 awarded VKGS $558,405; jury 2 (Planet Bingo’s claims) later awarded Planet Bingo $2,990,000; the court offset and entered judgment for Planet Bingo while awarding VKGS postjudgment interest from the date of the first verdict.
- VKGS appealed (challenging bifurcation, evidentiary rulings, and jury instructions); Planet Bingo cross-appealed the postjudgment interest award.
Issues
| Issue | Plaintiff's Argument (VKGS) | Defendant's Argument (Planet Bingo) | Held |
|---|---|---|---|
| Admissibility of 2001 Canadian patent application | Should be admitted to impeach Wei and to show EPIC material was public | Exhibit lacked foundation, was unauthenticated, and was a surprise | Exclusion affirmed — VKGS failed to authenticate or certify the record; unfair surprise justified exclusion |
| Bifurcation vs. dismissal of Planet Bingo’s claims | Court should dismiss Planet Bingo’s claims (public patent made claims meritless) | Claims raise factual issues about confidentiality; Planet Bingo needed time to investigate | Denial of dismissal affirmed; bifurcation proper; VKGS invited bifurcation and factual disputes existed for jury |
| Exclusion of portions of Melange financial/install exhibit in Planet Bingo’s trial | Exclusion prejudiced VKGS’s defense that software disclosures defeated confidentiality | Court admitted relevant portions and excluded irrelevant material | No reversible error — remaining evidence supported VKGS’s defense; no prejudice shown |
| Jury instructions (contract aggregation; implied covenant) | Jury should not consider superseded 2003/2004 agreements; requested instruction on implied covenant of good faith | Contracts were interrelated; Michigan law governs and does not recognize separate implied-covenant claim | No reversible error — instructions adequate as a whole; implied-covenant instruction properly refused under Michigan law |
| Postjudgment interest award (cross-appeal) | VKGS: interest from first verdict date | Planet Bingo: no final judgment until all claims resolved; interest should not accrue earlier | Reversed — interest may not accrue from the first verdict because order was not a final judgment under §25-1315; remand to modify judgment |
Key Cases Cited
- O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017) (standards for authentication and appellate review of hearsay/authentication rulings)
- Wayne L. Ryan Revocable Trust v. Ryan, 308 Neb. 851, 957 N.W.2d 481 (statutory interpretation and plain-meaning canon)
- Acklie v. Greater Omaha Packing Co., 306 Neb. 108, 944 N.W.2d 297 (trial court discretion on relevancy and admissibility of evidence)
- Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (orders adjudicating fewer than all claims are not final under §25-1315)
- Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 395 (presumption that a general verdict rests on valid grounds presented to the jury)
- First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465 (interpretation of Nebraska Trade Secrets Act and related confidentiality issues)