UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PINNACLE PERFORMANCE INC.,

an Illinois Corporation

Plaintiff,

v.

KERRI GARBIS, ERIC BERGERON,

PINNACLE NORTHEAST, INC., a

New York Corporation, OVATION

COMMUNICATIONS, LLC., a

Massachusetts Limited Liability

Company,

Defendants.

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No. 12 C 1136

Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

For the reasons stated below, Defendants’ Motion For Enforcement of Settlement Agreement

Dated September 6, 2012 (Defs.’ Mot.) [dkt 78] is granted.

Background

The lawsuit.

Plaintiff Pinnacle Performance, Inc. (“PPI”) provides presentation and communication skills

training for business professionals. (Am. Not. Rem., Grp. Ex. A, Compl. ¶ 14.) [Dkt 34.]1

Federal court jurisdiction is proper under 28 U.S.C. § 1332. PPI originally filed this 1

action in the Circuit Court of Cook County to which defendants responded by filing a notice of

removal to federal court based on diversity jurisdiction under 28 U.S.C. § 1332. (Order, Apr. 20,

2012, at 1.) [Dkt 32.] The notice of removal, however, failed to allege the citizenship of

Ovation. (Id.) PPI moved to remand based on the defect in the notice of removal and also

claimed that the amount in controversy did not exceed $75,000. (Id.) District Judge found that

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Defendants Kerri Garbis and Eric Bergeron owned and operated a PPI franchise called Pinnacle

Northeast, Inc. (“PNE”). (Id. ¶ 2.) According to PPI, in 2011, Garbis induced PPI to forgive a

$50,000 debt and enter a franchise separation agreement with the understanding that Garbis would

exit the presentation and communication skills training business and would transition PNE’s clients,

in particular General Electric, to PPI. (Id. ¶ 3.) PPI contends that Garbis has opened up a new skills

training business, Ovation Communications, LLC (“Ovation”), which is providing training services

to General Electric. (Id.) 

David Marcotte is currently not a party to this lawsuit although PPI has moved to amend its

complaint to join him as a defendant. [Dkt 35, 36.] According to PPI, Mr. Marcotte has breached

his covenant not to compete with PPI by working for the defendants. (Decl. of David Lewis Supp.

Mot. Am. Compl. ¶¶ 16-23.) [Dkt 55.]

The settlement conference.

This court conducted a settlement conference with the parties and their attorneys over the course

of two days, September 5 and 6, 2012. [Dkt 64, 67.] The conference was attended by David Lewis

(CEO and co-founder of PPI) and Gary Mills (co-founder of PPI) as well as PPI’s attorney Mitchell

Chaban, and by defendants Kerri Garbis and Eric Bergeron (the managers of Ovation) and the

defendants’ attorney Michael Stiegel. The conference began at 10:30 a.m. on September 5, went

until approximately 5 p.m. that day, and continued the next morning. At the conclusion of the

conference on September 6, the parties signed a document entitled “Pinnacle Performance, Inc. v.

the amount in controversy exceeded $75,000, and allowed defendants to file an amended notice

of removal, which they did [dkt 34]. (See Order, Apr. 20, 2012, at 2-3.) 

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Garbis, et al. Sept 6, 2012 Settlement terms.” That document states:

1. Defendants (Kerri Gabris, Eric Bergeron, Pinnacle Northeast, Inc., Ovation

Communication LLC) agree:

A. Theywill never use the Ovation/ GE presentation materials and materials that

Pinnacle Performance, Inc (PPI) regards as proprietary. PPI will identify specific

portions of Defendants’ “vanilla” presentation materials (that Defendants showed to

PPI at the Sept 6, 2012 settlement conference) that PPI regards as proprietary. If the

materials are contained or described in “The Pin Drop Principle” or the public

domain, the parties agree that the information is not proprietary.

B. For 24 months from today, they will not enter into any contracts for meeting

facilitation skills training. This does not prohibit Defendants from conducting

etiquette skills training.

C. For 24 months from today, they will not train any current PPI clients. This

restriction is dependant on PPI providing a list of those clients and proof that they are

current clients. 

2. Defendants will pay PPI $50,000 over 5 years, in annual payments of $10,000

with the first payment made January 1, 2013. There is joint and several liability

among the individual defendants for those payments. 

3. PPI will remove the facebook post to which Defendants object.

4. Parties will execute full general mutual releases. PPI may give a release in the

form of a covenant not to sue or similar, to preserve its rights against third parties.

5. Defendants will provide a mutually acceptable letter on Ovation letterhead drafted

by PPI signed by Garbis to GE endorsing PPI. 

6. PPI will make an offer to David Marcotte to settle its disputes with him on these

terms: PPI will fully release David Marcotte if he pays $1,500 by March 1, 2013 and

signs a letter of apology to PPI.

(Defs.’ Mot., Ex. A (“Settlement Terms sheet”).) The Settlement Terms sheet was signed byMessrs.

Mills, Lewis, and Chaban for PPI, and by Mr. Steigel with authority on behalf of all of the

defendants. (Id.)

The parties then consented to the exercise of jurisdiction by a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(c), and the case was reassigned to this court. [Dkt 71, 73.]

Notwithstanding the signing of the Settlement Terms sheet, no stipulation to dismissthe lawsuit has

yet been filed. Defendants now move to enforce the Settlement Terms sheet.

Discussion

The central issue is whether the Settlement Terms sheet is an enforceable agreement. 

Defendants also assert that PPI is not complying with the provisions of the Settlement Terms sheet

and is acting in bad faith. Each issue is addressed in turn below.

I. The Settlement Terms sheet is an enforceable agreement.

“Whether a settlement agreement is binding is an issue governed by the law of the state in which

the parties executed the agreement.” Lewis v. School Dist. No. 70, 648 F.3d 484, 486 n.1 (7th Cir.

2011). Under Illinois law, “[a] settlement agreement is in the nature of a contract, and construction

and enforcement of such agreements are governed by principles of contract law.” Solar v. Weinberg,

653 N.E.2d 1365, 1368 (Ill. App. 1st Dist. 1995). “Illinois conditions the enforceability of a putative

contract on two predicates: a sufficientlyconcrete expression of the essential terms of the agreement,

as well as an intent to be bound by that agreement.” Ocean A. Dev. Corp. v. Aurora Christian Schs.,

Inc., 322 F.3d 983, 995 (7th Cir. 2003). 

A. Intent to be bound. 

“An enforceable contract must include a meeting of the minds or mutual assent to the terms of

the contract.” Academy Chi. Publishers v. Cheever, 578 N.E.2d 981, 984 (Ill. 1991). Mutual assent

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is based on “the objective conduct of the parties”; “the parties’subjective intentions are irrelevant.” 

Nat’l Prod. Workers Union Ins. Trust v. Cigna Corp., 665 F.3d 897, 901-02 (7th Cir 2011). Whether

a “meeting of the minds” exists “is determined by reference to what the parties expressed to each

other in their writings, not by their actual mental processes.” Laserage Tech. Corp. v. Laserage

Labs., Inc., 972 F.2d 799, 802 (7th Cir. 1992).

“The fact that a formal written document is anticipated does not preclude enforcement of a

specific preliminary promise.” Dawson v. Gen. Motors Corp., 977 F.2d 369, 374 (7th Cir. 1992). 

“[T]hat the parties left some details for counsel to work out during later negotiations cannot be used

to abrogate an otherwise valid agreement.” Porter v. Chicago Bd. of Educ., 981 F. Supp. 1129, 1131

n. 4 (N.D. Ill. 1997). “Where the reduction of an agreement to writing and its formal execution is

intended by the parties as a condition precedent to its completion, there can be no contract until then,

even if the actual terms have been agreed upon. However, the fact parties contemplate that a formal

agreement will eventually be executed does not necessarily render prior oral agreements as mere

negotiations.” In re Estate of Glassman, 628 N.E.2d 666, 670 (Ill. App. 1st Dist. 1993) (citations

omitted).

PPI argues that the Settlement Terms sheet is not an enforceable agreement because “it was

expressly agreed that counsel for the parties would prepare a formal settlement agreement

memorializing the terms of the parties’ settlement.” (Pl.’s Resp. at 2.) [Dkt 81.] PPIstates that the

Settlement Terms sheet was “prepared very quickly and without scrutiny,” that “Settlement Term

sheet was drafted by the Court in a matter of minutes,” and that the language in the “Settlement Term

sheet was neither negotiated nor scrutinized.” (Id. at 1-2.) PPI asks this court to take judicial notice

of “these facts” because this court presided at the settlement conference. (Id. at 2 n. 2.) 

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PPI’s claimed “facts” are simply untrue. The facts are these. On September 5, the first day of

the settlement conference, after several hours of conferencing and negotiating, the court prepared an

initial draft of a term sheet by setting out “Plaintiff’s proposed settlement 3:00 p.m. ” A copy of that

proposed settlement is attached to this opinion as Appendix A. This court often prepares such

settlement drafts in conferences where the proposed settlement has a number of complex terms

because it helps the parties crystalize what has been agreed and what is still unresolved. The court

always reviews the terms with the party whose proposal the sheet sets out before tendering it to the

opposing side. That process was followed here. 

Defendants responded to PPI’s proposal with handwritten modifications at 3:40 p.m. (App. B.)

The court incorporated those comments into “Defendants’ proposed settlement 3:40 p.m.,” to which

PPI gave comments at 4:00 p.m. (App. C.) Several more proposed settlement sheets followed

throughout the afternoon, reflecting the parties’ proposals and counter-proposals. (App. D - G.) At

approximately 5:00 p.m., the conference broke for the day.

The following day, September 6, 2012, the parties and the court resumed the settlement

conference. At 11:00 a.m., the court prepared “Defendants’ proposed settlement 11:00 a.m.” (App.

H.) The parties discussed some modifications of those terms as reflected in handwriting on

Appendix H, and the court prepared the final Settlement Terms sheet. After the final terms were

agreed, Ms. Garbis and Mr. Bergeron left to catch a plane, but gave their attorney Mr. Stiegel

authority to sign on their behalf. Notably, PPI’s client representatives, Mr. Mills and Mr. Lewis,

were present throughout to the final signing, and personally signed the Settlement Terms sheet, as

did their attorney.

There is no indication that the parties intended to make the drafting of another document a

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condition precedent to reaching an agreement. The Settlement Terms sheet does not contain any

reservation that the terms were not final or binding on the parties or that the enforceability of the

Settlement Terms sheet is dependant on the execution of another document that re-memorializes the

agreement. During the two-day negotiating process multiple drafts of the Settlement Terms sheet

were edited and scrutinized by the parties. None of the drafts expressed an intention that the terms

were not binding unless and until another document was prepared and signed.

In fact, the final Settlement Terms sheet supports the opposite conclusion. Paragraphs 1(B) and

1(C) contain conditions “[f]or 24 months from today.” Thus, the parties intended the terms to be

effective starting that very day, not beginning some time after a subsequent document would be

prepared and signed. The objective evidence demonstrates that the parties intended to be bound by

the Settlement Terms sheet.

B. The terms are sufficiently definite.

“A contract is sufficiently definite and certain to be enforceable if the court is enabled from the

terms and provisions thereof, under proper rules of construction and applicable principles of equity,

to ascertain what the parties have agreed to do.” Cheever, 578 N.E.2d at 984 (internal quotations

omitted). “Put another way, ‘[p]arties do not have an enforceable contract unless, by the terms of

the agreement, a court can require the specific thing contracted for be done.’” Bus. Sys. Engr., Inc.

v. Intl. Bus. Machs. Corp., 547 F.3d 882, 888 (7th Cir. 2008) (quoting Ass'n Benefit Servs., Inc. v.

Caremark RX, Inc., 493 F.3d 841, 850 (7th Cir. 2007)) (internal quotation and modifications

omitted). “‘A contract may be enforced even though some contract terms may be missing or left to

be agreed upon, but if the essential terms are so uncertain that there is no basis for deciding whether

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the agreement has been kept or broken, there is no contract.’” Wigod v. Wells Fargo Bank, N.A., 673

F.3d 547, 564 (7th Cir. 2012) (quoting Cheever, 578 N.E.2d at 983). 

The terms set out on the Settlement Terms sheet are sufficiently definite that an enforceable

agreement was created. The parties’ obligations under the Settlement Terms sheet are definite

enough that there is an objective basis for determining whether a party has breached the agreement. 

Defendants will pay PPI $50,000 over five years in yearly installment payments, will never use

specified PPI proprietary materials, will not enter into any contracts for meeting facilitation skills

training for 24 months beginning September 6, 2012, will not train any of PPI’s current clients for

24 months after September 6, 2012 provided that PPI provides a list and proof of such clients, will

provide a mutually acceptable letter to GE endorsing PPI, and will execute a release. In return, PPI

will take down an objectionable Facebook post, will make an offer of settlement to Mr. Marcotte,

and will execute a release. In contrast to situations where the terms of the agreement were so

indefinite as to not be enforceable, the Settlement Terms sheet does not make “mere vague

expressions of warm wishes for a bright future,” but instead lays out concrete obligations for the

parties. Dawson, 977 F.2d at 374. 

The parties’ post-settlement interactions reveal that they disagree over what constitutes a

“current client” as contemplated by Settlement Terms sheet. (Pl.’s Resp. at 4.) But the Settlement

Terms sheet does not condition its effectiveness on the parties’ later agreement on what “current

client” means, and the term “current client” is sufficiently definite such that a court, using traditional

methods of contractual interpretation, can determine which clients fall within the scope of that

provision even if it is not defined in the contract. Cf., e.g., Chapman v. Engel, 865 N.E.2d 330, 333

(Ill. App. 1st Dist. 2007) (stating that “a contract term is not ambiguous merely because it is

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undefined in the contract” and using dictionary to construe meaning of contractual term “default”);

Hunt v. Farmers Ins. Exch., 831 N.E.2d 1100, 1102) (Ill. App. 5th Dist. 2005) (construing

contractual term “conviction” through use of dictionary); Chatham Corp. v. Dann Ins., 812 N.E.2d

483, 488-89 (Ill. App. 1st Dist. 2004) (construing contractual term “necessary” through use of

dictionary); Hagerty, Lockenvitz, Ginzkey&Assocs. v. Ginzkey, 406 N.E.2d 1145, 1146-47 (Ill. App.

4th Dist. 1980) (construing contractual term “compete” through use of dictionary).

Accordingly, because the parties intended to be bound and the terms are sufficiently definite,

the Settlement Terms sheet is an enforceable agreement. 

II. Whether PPI is complying with the Settlement Terms sheet

Defendants contend that PPIis not complying with its obligations under paragraphs 1(C), 4, and

6 of the Settlement Terms sheet. (Defs.’ Mot. ¶¶ 13-20.)

A. Paragraph 1(C): Proof of Current Clients

Paragraph 1(C) of the Settlement Terms sheet provides: “For 24 months from today,

[defendants] will not train any current PPI clients. This restriction is dependant on PPI providing

a list of those clients and proof that they are current clients.” Defendants argue that PPI is not

complying with its obligations under paragraph 1(C) of the Settlement Terms sheet in that it has not

provided proof as to which clients are “current.” (Defs.’ Mot. ¶ 18.) Contending that providing

proof for each client “would be extremely burdensome,” PPI has tendered to defendants with a list

of 200 clients and suggested that Garbis could identify clients on the list “with which she is

unfamiliar or which she reasonably suspects are not PPI clients.” (Id. ¶ 19 & Ex. G.) Defendants

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argue PPI’s delay in providing proof constitutes bad faith and frees defendants from their obligation

to not train PPI’s current clients. (Id. ¶ 20.) PPI responds that before PPI can provide proof, the

parties must agree on what constitutes a “current client.” (Pl.’s Resp. at 4.) 

PPI cannot change the terms of the agreement simply because it has now decided they are too

burdensome. As the various settlement proposals attached as appendices to this opinion

demonstrate, paragraph 1(C) was agreed in its present form on the afternoon of the first day of the

settlement conference. PPI’s representatives had plenty of time – in fact, overnight – to decide if

they could accept PPI’s burden to provide proof of its current clients as a condition precedent, and

they never changed that provision. PPI’s present argument that it would be too burdensome to do

so is simply buyer’s remorse. 

PPI’s position is also contrary to the express language of paragraph 1(C). Paragraph 1(C) does

not require that the parties agree on who is a “current client” before PPI provides proof of client

status; rather, providing that proof is a condition precedent to the limitation on the defendants. 

Paragraph 1(C) puts an affirmative obligation on PPI only if PPI desires to enforce the restriction.

Paragraph 1(C), however, does not mandate a time by which PPI must provide the list and proof,

although any restriction on defendants will expire on September 6, 2014. It is conceivable that PPI

could let the entire 24 months pass without providing any proof. But defendants cannot be liable for

breach of contract for training PPI’s “current clients” prior to receiving adequate proof from PPI.

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B. Paragraph 4: Release or Covenant Not to Sue

 PPI also seeks to insert the word “perform” into the obligation in paragraph 1(B). (Pl.’s 2

Resp. at 3-4.) The court notes that the word “perform” was not part of any of the drafts of

paragraph 1(B). 

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Paragraph 4 provides that “[p]arties will execute full general mutual releases. PPI may give a

release in the form of a covenant not to sue or similar, to preserve its rights against third parties.”

(Settlement Terms sheet ¶ 4.) Defendants argue that they should receive a full, general release rather

than a covenant not to sue because PPI has settled with Mr. Marcotte, thereby obviating the need to

protect PPI’s interests against third parties. (Defs.’ Reply at 4.) [Dkt 82.] As written, however, the

term “third parties” is not limited to Mr. Marcotte, and thus by the terms of the agreement, PPI may

give a release in the form of a covenant not to sue.

C. Paragraph 6: PPI and Mr. Marcotte

Paragraph 6 of the Settlement Terms sheet provides: “PPI will fully release David Marcotte if

he pays $1,500 by March 1, 2013 and signs a letter of apology to PPI.” (Settlement Terms sheet ¶

6.) Defendants argue that PPI is not living up to its offer to Mr. Marcotte. (Defs.’ Mot. ¶¶ 13-16.)

Mr. Marcotte has tendered $1,500 and has signed a letter wherein he states that he is “truly sorry

that it came to this and/or that I caused PPI any difficulty. Please accept my deepest apologies.” (Id.,

Ex. E.) For unspecified reasons, PPI does not accept Mr. Marcotte’s letter and has drafted him

another letter for him to sign. (Id. ¶ 15 and Ex. F.) PPI has also refused to sign the “General

Release” that Mr. Marcotte proposed to PPI. Instead, PPI states that it will accept Mr. Marcotte’s

original letter of apology if Mr. Marcotte agrees to accept a covenant not to sue in lieu of a release. 

(Pl.’s Resp. at 5.)

The Settlement Terms sheet does not require PPI’s approval of the apology letter. As compared

to paragraph 5 of the Settlement Terms sheet which requires that defendants provide a “mutually

acceptable letter” to GE, PPI’s offer to Mr. Marcotte contains no such caveat. (Settlement Terms

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sheet ¶¶ 5, 6.) 

The parties disagree about whether PPI must provide Mr. Marcotte with a general release rather

than a covenant not to sue. Under the Settlement Terms sheet, however, no additional document is

necessary to fully release Mr. Marcotte. Once Mr. Marcotte accepted PPI’s offer through his

payment and apology letter, he was “fully released.” No further document was required to release

PPI’s claims against Mr. Marcotte.

III. Bad Faith

Defendants request attorney’s fees as they believe that PPI has acted in bad faith for failing to

complywith and attempting to renegotiate the settlement terms. (Defs.’ Mot. ¶¶ 21-25.) Defendants

do not identify any express or inherent authority for the court to award such fees. Defendants’

request for attorney’s fees is denied. 

IV. Conclusion of this action.

The court concludes that the parties reached a binding agreement to settle the claims brought

in this lawsuit. The settlement agreement extinguishes the claims in the lawsuit. See Wrightsell v.

Cook County, 599 F.3d 781, 784 (7th Cir. 2010) (observing that “in an ordinary civil settlement it

is taken for granted that the settlement extinguishes all rights to further prosecution of the suit”). 

Accordingly, all other pending motions are denied as moot. See American Patriot Ins. Agency, Inc. 

v. Mutual Risk Mgt., Ltd., 364 F.3d 884, 888 (7th Cir. 2004) (observing that if the parties settle a

case any motions filed in it are moot).

Based on the rulings here, the court anticipates that a stipulation to dismiss this case with

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prejudice should be filed shortly. A status hearing is hereby set for March 12, 2013 at 9:45 a.m. If

a stipulation to dismiss is filed before that date, the status hearing will be stricken.

Conclusion

For the foregoing reasons, Defendants’ Motion For Enforcement of Settlement Agreement

Dated September 6, 2012 [dkt 78] is granted. All other pending motions [dkt 9, 27, 30, 35] are

denied as moot. A status hearing is set for March 12, 2013 at 9:45 a.m. If a stipulation to

dismiss has been submitted in advance of that date, the status hearing will be stricken. 

________________________________

Geraldine Soat Brown

United States Magistrate Judge

DATE: February 21, 2013

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