(dissenting).
Today, the majority strips away protection ■for banking consumers that has long been afforded by both the legislature and the courts. To do so, the majority invades the province of the jury and ignores clearly expressed legislative intent. I disagree.
Initially I part company with the majority on its interpretation of the standard for determining when a bank must disclose the fraudulent activity of one of its customers to another of its customers. The majority has, I believe, misinterpreted our prior holdings on this subject and, in so doing, has overruled portions of them sub silentio.
As the majority notes, the general rule, originating in common law, is that one is *404under no duty to disclose the fraud of another. However, this court, like courts in many other jurisdictions has carved out an exception where “special circumstances” exist. Klein v. First Edina National Bank, 293 Minn. 418, 421, 196 N.W.2d 619, 622 (1972). Among those special circumstances which trigger a duty to disclose is “special knowledge of material facts to which the other party does not have access.” Id.
Four years after the Klein decision, in Richfield Bank & Trust Co. v. Sjogren, 309 Minn. 362, 244 N.W.2d 648 (1976), this court had occasion to apply this rule and did so by imposing a duty to disclose upon a bank that had actual knowledge of the irretrievable insolvency of one its customers, a manufacturer of pollution control equipment. We held that under those specific circumstances, the bank had a duty to inform another party that the manufacturing company was indeed insolvent and virtually out of business before loaning the party some $45,000 to purchase air pollution equipment from the manufacturer. Id. at 369, 244 N.W.2d at 652.
The court noted that the jury had specifically found that the manufacturing company was defrauding the Sjogrens and that the loan officer was aware of it. Id. at 368, 244 N.W.2d at 651-52. Acknowledging its usual unwillingness to overturn a jury verdict supported by the evidence, the court held that the bank had “actual knowledge of the fraudulent activities of one of its depositors” and thus “an affirmative duty to disclose those facts to the [borrower] before it engaged in making the loan to the [borrower] which furthered the fraud.” Id. at 369, 244 N.W.2d at 652. Thus, the Richfield Bank & Trust Co. case is the court’s most recent application of the Klein rule that actual knowledge of material facts unknown to a third party may give rise to a duty to disclose. In Richfield Bank & Trust Co., the “material facts” at issue related to the irretrievable insolvency of the depositor.
However, the majority has now taken that single, fact-specific application of the broad, general rule — that knowledge of material facts may give rise to a duty to disclose — and hardened it into a rigid limitation, holding that only knowledge of irretrievable insolvency must be disclosed. To the contrary, there is nothing in either the Klein or the Richfield Bank & Trust Co. decisions that suggests that the only possible “material facts” which can give rise to a duty to disclose are those which relate to “irretrievable insolvency.” In Richfield Bank & Trust Co., the bank’s actual knowledge of the manufacturer’s fraudulent activity indeed was derived from its knowledge that the company was so irretrievably insolvent that it could not meet its obligations. Id. at 368,' 244 N.W.2d at 651-52. In the instant case Liberty Bank had actual knowledge of fraud, based upon Joseph Baker’s own comments: in meetings January 3 and 9, 1990 with John Wittek, Baker promised to use the loan proceeds, not to begin the Lindsay’s Bar venture as he told the plaintiffs, but instead to pay down some of his debts to Liberty. Surely, actual knowledge of fraud, whether caused by irretrievable insolvency or merely larcenous intent, is exactly the type of “material fact” that this court intended to trigger the duty to disclose.
The Richfield Bank & Trust Co. court held that disclosure was compulsory when a bank knows of fraud being perpetrated by one of its customers in a loan transaction. Today, the majority distorts that holding to conclude that such disclosure is necessary only when the bank is aware of fraud perpetrated by virtue of the customer’s financial condition. After reading the majority’s analysis, one is left with the question: why is a consumer protected against one type of fraud and not another, when the knowledge to prevent each is within the grasp of the bank and, in each case, unknown to its customer?
Finally, it is important to keep in mind that this case comes to us with a jury verdict of fraud that is supported by the evidence. The jury specifically found that Joseph Baker defrauded the plaintiffs, that Liberty knew or had reason to know of Baker’s fraud, and that Liberty failed to inform plaintiffs of this fraud. Normally, we do not overturn jury verdicts lightly. Roemer v. Martin, 440 N.W.2d 122, 124 (Minn.1989); State v. Robinson, 262 Minn. 79, 85, 114 N.W.2d 737, 741 (Minn.1962) (quoting Fayerweather v. Ritch, 195 U.S. 276, 306-307, 25 *405S.Ct. 58, 67-68, 49 L.Ed. 193 (1904)), cert. denied, 371 U.S. 815, 83 S.Ct. 26, 9 L.Ed.2d 56 (1962). We have also previously made well-known our significant hesitancy to supplant our judgment for that of the jury. See Vikse v. Flaby, 316 N.W.2d 276, 283 (Minn. 1982); Ottemess v. Horsley, 263 N.W.2d 403, 405 (Minn.1978).
The existence of the jury’s verdict on plaintiffs fraud claims against Baker also seems to me to counter the majority’s long discussion on the nature of fraud and the ability of plaintiffs to discover that fraud. The question of whether plaintiffs could have learned of Joseph Baker’s fraudulent plans for the borrowed funds has been answered by the jury. It determined that the bank knew Joseph Baker intended to use the money in a manner different from that communicated to the plaintiffs and that the bank knew of that fraud — indeed, Joseph Baker’s promise to use the money differently seems central to the bank’s decision to loan the money. Having considered the plaintiffs’ ability to uncover the fraud themselves, the jury nevertheless found both that Baker defrauded the plaintiffs and that the bank knew about it. Nothing more than that is required by Richfield Bank & Trust Co. to trigger the duty to disclose. A discussion of what the jury might have found, but didn’t, is not germane to the question at hand. The majority notes, with regard to interpreting the Consumer Fraud Act, that it is unwilling to invade the province of the legislature; yet it has chosen to overlook the jury’s decision in this matter. Such a jury verdict should not be ignored.
Public policy, precedent, and common sense should not be ignored. The legislature has seen the perpetration of fraud in consumer transactions and responded with consumer protection statutes. Courts, generally, responded by giving those statutes broad interpretation. The jury in this instance responded with its verdict. But, today, the majority responds by allowing, in this as well as future instances, the legal concealment of fraud by banks.
On the second issue, I conclude that the Consumer Fraud Act applies to bank loans. The Act prohibits “any person” from using “any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise.” Minn.Stat. § 325F.69 (1994). As used in the Act, “merchandise” refers to “any objects, wares, goods, commodities, intangibles, real estate, or services.” Minn.Stat. § 325F.68, subd. 2 (1994).
In my view, the majority’s determination that a loan — essentially the provision of sums of money for a period of time in exchange for fees and interest payments — is outside the reach of the Act defies its intended expansive protection. When creating the Act, the legislature did not exclude any sort of transaction from its purview — it created an expansive, far reaching statute to protect consumers as much as possible from unfair practices, including fraud. The court of appeals in this case recognized that fact when it stated that the “onus is on the legislature to exclude, rather than include, loans from within the protection of the Act.” Boubelik v. Liberty State Bank, 527 N.W.2d 589, 593 (Minn.App. 1995).
This state’s attorney general has attempted to further this anti-fraud policy with aggressive prosecution of violators of the Act. However, even the attorney general does not have unlimited resources; again, in keeping with the public policy against consumer fraud, the legislature recognized this fact and allowed private individuals to enforce the Act as so-called “private attorneys general.” See Minn.Stat. § 8.31, subd. 3a (1994).
Courts as well have been aware of this policy in favor of consumers and have interpreted the definition of “merchandise” broadly. For example, in Jenson v. Touche Ross & Co., 335 N.W.2d 720 (Minn.1983), we determined that because the term “merchandise” is defined in the act as including both “commodities” and “intangibles,” the Act applied to sale of investment contracts. Id. at 728. Similarly, in my view, a loan may be characterized as either the sale of money or the sale of the use of money, but in any case it is an intangible or a service within the common sense meaning of these terms and clearly within the statute. To rule otherwise is not only inconsistent with the plain mean*406ing of the statute, but utterly irreconcilable with Jenson.
The majority contends that the Act clearly does not include bank loans in its protections and implies that a judicial determination otherwise would somehow imperil the ability of sophisticated parties to borrow and invest. Yes, the text of the Act does not mention bank loans, but neither did it mention investment contracts, yet we decided such investment devices were included within the purview of the Act. Has the Jenson decision had a negative impact on the investment industry?
Further, courts in other jurisdictions have included bank loans within the ambit of their states’ consumer protection statutes. See, e.g., Smith v. Commercial Banking Corp., 866 F.2d 576, 582 (3rd Cir.1989) (determining that mortgage transactions are within the scope of Pennsylvania’s consumer protection statute); Villegas v. Transamerica Financial Servs., 147 Ariz. 100, 102, 708 P.2d 781, 783 (App.1985) (loan of money is a sale of present use of money on future promise to repay); Baird v. Norwest Bank, 255 Mont. 317, 328, 843 P.2d 327, 333-34 (1992) (consumer loan by bank is a service and thus falls within Montana’s consumer protection statute); Allan v. M & S Mortgage Co., 138 Mich.App. 28, 43, 359 N.W.2d 238, 245 (1984) (loan is “distribution of a service” within definition of Michigan Consumer Protection Act). The theories differ slightly from jurisdiction to jurisdiction, but the central theme of expansively reading consumer protection statutes to protect consumers seeking loans remains.
The creation of this statute and the broad application given to it by courts, including this court prior to today’s ruling, reflect a public policy of low tolerance for fraudulent business activity. See, e.g., State by Humphrey v. Alpine Air Products, Inc., 490 N.W.2d 888, 892 (Minn.App.1992), aff'd 500 N.W.2d 788, 790 (Minn.1993). The majority disregards these public considerations and long standing efforts to deter fraudulent activity. Instead, the majority, somewhat arbitrarily in my view, has imposed a narrow reading on a statute intended to be broad and exempted bank loans from the Consumer Fraud Act’s purview.
Finally, I note that the majority concludes that a decision to include bank loans within the reach of the Act would require us to invade the province of the legislature. I disagree. The majority obviously does not agree with me that a bank loan comes within the reach of the Act, but a disagreement on interpretation of a statute does not rise to the level of an assault on the role of the legislature. Indeed, the task of the judiciary is to interpret legislative enactments, taking into account the legislature’s intent, as best we can determine it, as well as our own past precedents. Should the legislature disagree with a judicial interpretation that a bank loan is covered by the Act, its path is dear.
I respectfully dissent.