990 F.3d 1013
7th Cir.2021Background
- Kevin Pack was hired and then terminated by Middlebury Community Schools (MCS) in April 2014; MCS posted a press release critical of Pack on its public website before settlement.
- Pack sued in January 2015 alleging religious discrimination; the parties executed a settlement on November 14, 2016 containing confidentiality and non-disparagement provisions and a broad release of pre-settlement claims.
- The settlement limited MCS responses to inquiries from "prospective employers" to positions held and dates of employment and required stating only that "the case has been settled under confidential terms."
- After the settlement, Superintendent Jane Allen submitted an affidavit in Pack’s defamation suit against The Elkhart Truth that criticized Pack and attached the press release; Allen also, in separate sting calls by Pack’s recruits, told callers Pack was "terminated" and "for cause."
- Pack sued MCS for breach of the settlement (failure to remove the pre-existing press release, the affidavit, and disclosures to prospective employers); the district court granted summary judgment for MCS, and the Seventh Circuit affirmed.
Issues
| Issue | Pack's Argument | MCS's Argument | Held |
|---|---|---|---|
| Whether maintaining a pre-existing, publicly available press release on MCS’s website after the settlement breached the non-disparagement clause | The continued online availability is a new access/publication each time and thus violates the forward-looking non-disparagement and "conduct" language | The non-disparagement clause is forward-looking and does not reach statements made before the agreement; the release covers pre-settlement claims | Court: No breach — single-publication doctrine applies; the forward-looking clause does not obligate removal of a pre-existing post absent explicit agreement |
| Whether Allen’s affidavit in separate litigation breached the settlement or was privileged | The affidavit disparaged Pack and attached the press release, so it violated non-disparagement/confidentiality | Statements made in judicial proceedings are protected by Indiana’s absolute litigation privilege | Court: No breach — absolute litigation privilege protects relevant statements in judicial proceedings, regardless of voluntariness |
| Whether statements made to callers (posed as prospective employers) violated the settlement’s restriction on responses to prospective employers | The calls show MCS provided information beyond positions and dates and thus violated ¶6.B | The callers were not actual prospective employers; ¶6.B applies only to real inquiries from prospective employers | Court: No breach — undisputed evidence shows callers were not prospective employers, so ¶6.B did not apply |
| Whether sting calls or evidence of willingness/intent establish a breach or justify further discovery | Sting calls demonstrate MCS’s willingness/intent to violate the agreement and justify further discovery to find actual employer calls | Willingness/intent alone does not constitute a contractual breach; no evidence of actual employer inquiries was produced | Court: No breach and no basis to deny summary judgment — plaintiff had opportunity for discovery but produced no evidence of actual violations |
Key Cases Cited
- Hartman v. BigInch Fabricators & Constr. Holding Co., 161 N.E.3d 1218 (Ind. 2021) (clear contract language controls; courts enforce parties' agreed terms)
- Platinum Luxury Auctions v. Concierge Auctions, 227 So.3d 685 (Fla. Dist. Ct. App. 2017) (forward-looking non-disparagement in settlement does not require removal of pre-existing online material absent explicit term)
- Kiebala v. Boris, 928 F.3d 680 (7th Cir. 2019) (applying single-publication rule to internet publications)
- Pippen v. NBCUniversal Media, 734 F.3d 610 (7th Cir. 2013) (passive maintenance of website does not constitute republication)
- Wilkins v. Hyde, 41 N.E. 536 (Ind. 1895) (statements made in course of judicial proceedings are privileged)
- Hartman v. Keri, 883 N.E.2d 774 (Ind. 2008) (Indiana recognizes an absolute privilege for relevant statements in judicial proceedings)
- Rain v. Rolls-Royce Corp., 626 F.3d 372 (7th Cir. 2010) (absolute privilege covers voluntary litigation statements despite contractual non-disparagement)