In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1290

DAVID N. RAIN and PARAMOUNT

INTERNATIONAL, INC.,

Plaintiffs-Appellants,

v.

ROLLS-ROYCE CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 07 C 1233-WTL-DML—William T. Lawrence, Judge.

ARGUED SEPTEMBER 14, 2010—DECIDED NOVEMBER 18, 2010

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. David Rain and Paramount International, Inc. brought a breach of contract action against

Rolls-Royce Corporation, alleging that Rolls-Royce twice

breached a non-disparagement agreement the parties

executed in connection with the settlement of an earlier

lawsuit. The district court granted partial summary

judgment in Rolls-Royce’s favor on one of the claims,
2 No. 10-1290

and, following a bench trial, entered judgment for RollsRoyce on the second claim. For the following reasons,

we affirm.

I. Background

A. Factual Background

Rolls-Royce manufactures a Model 250 aircraft engine

for use in helicopters. Rolls-Royce has a number of “authorized maintenance centers” (“AMCs”) and “authorized

rework facilities” (“ARFs”)—known as the “Model 250

FIRST Network”—that service, repair, and overhaul

Model 250 engines around the world. David Rain is the

sole shareholder and officer of Paramount International, Inc. (“Paramount”), which is in the business of

selling parts for the Model 250 engine to, among others,

the AMCs and ARFs in the FIRST Network. Therefore,

Paramount and Rolls-Royce are direct competitors.

Rolls-Royce and Rain have a contentious history. In

2005, Rolls-Royce filed suit against Rain, Paramount, and

others, alleging that they had misappropriated RollsRoyce’s intellectual property. On May 19, 2006, the

parties executed a formal settlement agreement and

dismissed the lawsuit. The agreement, which is governed by Indiana law, contains a non-disparagement

provision stating: “None of the Parties will disparage

the other.” The agreement further provides that any

material breach of the settlement agreement entitles the

prevailing party to its attorney’s fees plus damages in

an amount not less than $1,000,000.
No. 10-1290 3

1. The 2007 Texas Lawsuit

In 2007, Rolls-Royce filed a complaint in the United

States District Court for the Northern District of Texas,

alleging that the defendants in that case had obtained

Rolls-Royce’s proprietary information from a New

Jersey corporation—referred to as the “Principal Corporation”—owned by “Mr. Doe.” The complaint asserted a

RICO claim, in which Rolls-Royce alleged that the defendants had conspired with “Principal Corporation” and

“Doe” to obtain and use Rolls-Royce’s proprietary information. There is no dispute that, while Rain and Paramount were not named as defendants in the Texas suit,

the complaint used the pseudonyms “Mr. Doe” and

“Principal Corporation” to refer to Rain and Paramount.

2. The 2007 Helio-Expo

Also in 2007, Rain attended the Heli-Expo, an annual

trade show sponsored by the Helicopter Association International (“HAI”). At the 2007 Heli-Expo, Rolls-Royce,

the AMCs, and the ARFs sponsored a private customer

appreciation event. The FIRST Network members purchased passes to the event from Rolls-Royce to give to

their customers. Rain obtained a pass from an AMC and

attended the event.

At the event, Rain spoke with various Rolls-Royce

employees—including Scott Crislip, then the President of

the Rolls-Royce Helicopter Division—without incident.

While Rain was speaking with Rolls-Royce employee

Tom Leonard, Jeff Edwards, a Rolls-Royce vice-president,
4 No. 10-1290

approached Rain. Concerned that Rain would “bait” a

Rolls-Royce employee into making a disparaging comment about him, Edwards told Rain that his presence at

the event was inappropriate, and asked him to leave.

Both Leonard and another Rolls-Royce employee,

Andrew Maasch, were in the vicinity while Edwards

spoke to Rain. Rain exited the event through the hotel

lobby, at Edwards’s direction, and Edwards followed

Rain out. On his way out, Rain passed a business

associate, Eric Witters, and told Witters that he was

“getting kicked out.”

Another individual, Steve Van Hemert, also was asked

to leave the event. Van Hemert is the general manager of

a shop that services Model 250 engines. Representatives

from the AMCs were upset that Rolls-Royce had asked

some of their invited guests—for whom they had purchased tickets—to leave the event.

B. Procedural History

On September 25, 2007, appellants filed a breach of

contract suit alleging that Rolls-Royce had breached the

non-disparagement provision in the 2006 settlement

agreement—once by including certain allegations in

the Texas complaint, and again by escorting Rain out of

the Heli-Expo event. The district court granted RollsRoyce’s motion for partial summary judgment as to

the claim based on the Texas lawsuit, finding that even

if Rolls-Royce disparaged appellants by accusing them

of being involved in racketeering and other wrongdoing, Rolls-Royce was immune from liability under
No. 10-1290 5

Indiana’s absolute litigation privilege. Following a

bench trial on appellants’ other breach of contract claim,

the district court held that Rolls-Royce’s treatment of

Rain at the Heli-Expo event did not constitute disparagement in violation of the settlement agreement. In

reaching that conclusion, the court looked to Black’s

Law Dictionary to identify the plain and ordinary

meaning of the term “disparage,” which it found to be:

“[t]o dishonor (something or someone) by comparison” or

“[t]o unjustly discredit or detract from the reputation of

(another’s property, product or business).” The trial judge

found that while Rolls-Royce’s action may have caused

Rain embarrassment, it did not detract from his reputation as a businessman or reflect poorly on his character,

his products or his business dealings, and thus did not

constitute disparagement. Appellants timely appealed

both rulings.

II. Discussion

A. Indiana’s Absolute Litigation Privilege and the Texas

Lawsuit

We review de novo a district court’s grant of summary

judgment. See Lewis v. Downey, 581 F.3d 467, 472 (7th

Cir. 2009). A grant of summary judgment is appropriate

where “there is no genuine issue as to any material fact

and . . . the moving party is entitled to judgment as

a matter of law.” FED. R. CIV. P. 56(c). On appellate

review, we review the facts and inferences in the light

most favorable to the nonmoving party. See Haefling v.

UPS, 169 F.3d 494, 497 (7th Cir. 1999).
6 No. 10-1290

“Indiana law has long recognized an absolute privilege

that protects all relevant statements made in the course

of a judicial proceeding, regardless of the truth or

motive behind the statements.” Hartman v. Keri, 883

N.E.2d 774, 777 (Ind. 2008). The purpose for the

privilege is to “preserv[e] the due administration of

justice by providing actors in judicial proceedings

with the freedom to participate without fear of future

defamation claims.” Id. (citations and internal quotation

marks omitted). In the words of one Indiana court, the

privilege recognizes that the “public[’s] interest in the

freedom of expression by participants in judicial proceedings, uninhibited by the risk of resultant suits for

defamation, is so vital and necessary to the integrity of

our judicial system that it must be made paramount to

the right of the individual to a legal remedy when he

has been wronged.” Miller v. Reinert, 839 N.E.2d 731, 735

(Ind. Ct. App. 2005) (citation omitted).

In determining whether a statement is relevant and

pertinent, such that it is absolutely privileged, Indiana

“courts favor a liberal rule.” Id. Only those allegations

that are “so palpably irrelevant to the subject matter of

the controversy that no reasonable man can doubt

[their] irrelevancy and impropriety” are not covered by

the privilege. Id. The allegations at issue asserted that

Doe and Principal (meaning Rain and Paramount) trafficked in intellectual property stolen from Rolls-Royce

and formed an enterprise with the defendants in that

case to replicate Rolls-Royce engine parts and undercut

Rolls-Royce’s business. There can be no doubt that those

allegations were “pertinent and relevant to the [Texas]
No. 10-1290 7

litigation,” as Fifth Circuit precedent required RollsRoyce to allege the existence of an “enterprise” in order

to plead its RICO claim. See St. Paul Mercury Ins. Co. v.

Williamson, 224 F.3d 425, 439 (5th Cir. 2000). Moreover,

because the alleged enterprise was an association-infact (as opposed to a legal entity), Rolls-Royce was required to “show evidence of an ongoing organization,

formal or informal, that functions as a continuing unit

over time through a hierarchical or consensual decisionmaking structure.” Id. at 441.

Thus, the requirements for applying Indiana’s absolute

privilege are satisfied—the allegations were made in

the course of a judicial proceeding to which they

were relevant. Appellants nevertheless contend that

Rolls-Royce is not immune from liability because the

privilege does not extend beyond defamation and other

similar tort claims to encompass breach of contract

claims. No Indiana court has addressed whether the

absolute privilege precludes not only tort liability, but

also contractual liability. Faced with a novel question of

state law and no authority from the state courts, we shall

“examine the reasoning of courts in other jurisdictions

addressing the same issue and applying their own law for

whatever guidance about the probable direction of state

law they may provide.” Pisciotta v. Old Nat. Bancorp, 499

F.3d 629, 635 (7th Cir. 2007).

Courts in a number of other jurisdictions have concluded that the absolute litigation privilege is applicable

to breach of contract actions, at least where immunity

from liability is consistent with the purpose of the privi-
8 No. 10-1290

lege. See Kelly v. Golden, 352 F.3d 344, 350 (8th Cir. 2004)

(holding that Missouri’s absolute privilege precluded

liability for an alleged breach of a nondisparagement/

confidentiality agreement based on statements made in

a judicial proceeding); Ellis v. Kaye-Kibbey, 581 F. Supp. 2d

861, 880-81 (W.D. Mich. 2008) (predicting that the

Michigan Supreme Court would hold that the absolute

litigation privilege “preclude[s] breach-of-contract

liability [for] one who gives testimony or produces information in a judicial proceeding—at least to the

extent that such action was necessary to comply with a

subpoena or other order (and perhaps even if the communication was made in court in a judicial proceeding

but not required by any subpoena or court order)”);

Wentland v. Wass, 126 Cal.App.4th 1484, 1492 (Cal. App.

Ct. 3d Dist. 2005) (“whether the litigation privilege

applies to an action for breach of contract turns on

whether its application furthers the policies underlying

the privilege”); Tulloch v. JPMorgan Chase & Co., 2006

WL 197009, at *5 (S.D. Tex. Jan. 24, 2006) (concluding

that Texas law of absolute privilege bars all claims—

regardless of the legal theories on which they are

based—seeking “defamation damages,” meaning damages for injuries “flowing from the communication of

allegedly false statements during a judicial proceeding”).

We find that approach to be sound and conclude that

the Indiana Supreme Court would likely apply similar

reasoning.

Therefore, the question becomes whether applying the

litigation privilege in this case would promote the due

administration of justice and free expression by partici-
No. 10-1290 9

pants in judicial proceedings. We conclude that it

would. The application of the privilege here allows RollsRoyce to pursue its claims against third parties without

fear of future legal liability arising out of its efforts

to protect its intellectual property rights. By contrast,

the failure to apply the privilege would frustrate the

underlying policy by discouraging Rolls-Royce from

exercising its fundamental right to resort to the courts

to protect its rights.

Appellants contend that Indiana’s policy favoring the

enforcement of contracts counsels against applying the

litigation privilege here. Appellants waived this argument by failing to raise it before the district court. See

Mote v. Aetna Life Ins. Co., 502 F.3d 601, 608 n.4 (7th Cir.

2007). Moreover, we do not find appellants’ argument

persuasive. Appellants frame the inquiry as whether

the non-disparagement provision is enforceable. But the

agreement’s enforceability is not at issue. Rather, the

question is whether to impose liability for a violation of

that agreement. Under the circumstances presented, we

believe that the Indiana Supreme Court would refuse

to impose liability based on the absolute litigation privilege. As noted above, applying the privilege here advances its underlying purpose. In addition, appellants’

breach of contract claim is largely indistinguishable

from a tort claim alleging injury flowing from statements made in a judicial proceeding. While appellants

technically seek liquidated damages under the settlement agreement, any damages they suffered were caused

solely by the fact that the statements were (allegedly)

tortious. Consequently, imposing liability here would
10 No. 10-1290

allow appellants to circumvent the privilege by recasting

what essentially is a tort claim as a breach of contract

action.

Appellants also argue that Rolls-Royce waived the

absolute privilege by agreeing to the non-disparagement clause. Because appellants did not raise a waiver

argument below, they are barred from doing so here.

See Mote, 502 F.3d at 608 n.4.

Finally, appellants request that we certify the question

of whether Indiana’s absolute litigation privilege applies

to breach of contract claims to the Indiana Supreme

Court. Certification is appropriate only when “ ‘the case

concerns a matter of vital public concern, where the

issue will likely recur in other cases, where resolution of

the question to be certified is outcome determinative of

the case, and where the state supreme court has yet to

have an opportunity to [decide] . . . the issue.’ ” State Farm

Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001)

(quoting In re Badger Lines, Inc., 140 F.3d 691, 698-99

(7th Cir. 1998)). Even where, as here, “there is no clear

guidance from a state court, . . . certification is neither

mandated nor always necessary.” Id. at 673. Because

“the procedure is not without costs to the litigants and

to the state court which already must contend with a

crowded docket of its own[,] . . . we approach the decision to certify with circumspection.” Id. at 671.

Under the circumstances of this case, we do not believe that certification is warranted. While the resolution

of the question is outcome determinative, the question

has not arisen before in Indiana’s appellate courts. If
No. 10-1290 11

and when it arises again, the state courts will be free

to reach their own conclusion, of course, and can tell us

if our prediction of Indiana law was correct. Without

seeing an obstacle to future state court resolution of

the issue, we see no need to require the parties to go

through another round of briefing and argument in

this litigation. “Finally, although not a primary factor,

we are entitled to take into account whether the request

for certification to the state court came from the party

who chose federal jurisdiction in the first place.” Brown

v. Argosy Gaming Co., L.P., 384 F.3d 413, 417 (7th Cir.

2004). As we have explained, “it’s not a proper alternative to proceeding in the first instance in state court to

sue in federal court but ask that the suit be stayed to

permit certifying the interpretive issue to the state

court, thus asking that the suit be split between two

courts.” Doe v. City of Chicago, 360 F.3d 667, 672 (7th Cir.

2004). Here, appellants had the option of bringing their

case in Indiana state court. That they chose to proceed

in federal court undermines their request for certification.

B. The Heli-Expo Incident

Following a bench trial, we review the district court’s

conclusions of law de novo and its findings of fact for

clear error. Johnson v. West, 218 F.3d 725, 729 (7th Cir.

2000). Rain contends that the district court erred in

reading the contract term “disparage” not to include the

sort of personal embarrassment he suffered as a result

of being escorted out of the Heli-Expo event.
12 No. 10-1290

Under Indiana state law, the court’s goal in interpreting a contract is to “give effect to the parties’ intent

as reasonably manifested by the language of the agreement.” Reuille v. E.E. Brandenberger Constr., Inc., 888

N.E.2d 770, 771 (Ind. 2008). Unless the terms of a contract are ambiguous, they will be given their plain and

ordinary meaning. Id. In order to determine the plain

and ordinary meaning of the term disparage, the

district court looked to Black’s Law Dictionary (7th ed.

1999), which defines “disparage” as “[t]o dishonor (something or someone) by comparison” or “[t]o unjustly

discredit or detract from the reputation of (another’s

property, product or business).” Other courts applying

Indiana law similarly have looked to dictionary definitions in order to discern the meaning of the contract

term disparage. For example, in Indiana Ins. Co. v. North

Vermillion Community School Corp., 665 N.E.2d 630, 635

(Ind. Ct. App. 1996), the court relied on Webster’s

New World Dictionary to determine the meaning of “disparaging material” in the context of an insurance

policy, concluding that “to disparage” means to “lower in

esteem; discredit.” Similarly, in Heritage Mut. Ins. Co. v.

Advanced Polymer Technology, Inc., 97 F. Supp. 2d 913,

932 (S.D. Ind. 2000), which also involved the interpretation of an insurance policy, the court considered three

different dictionary definitions before concluding that

“material that . . . disparages a person’s or organization’s

goods, products or services” refers to material that

“denigrate[s], discredit[s] or belittle[s] [another’s] products.” Finally, in Westfield Ins. Co. v. Gil Behling & Son, Inc.,

2010 WL 989933, at *12 (N.D. Ind. March 15, 2010), the
No. 10-1290 13

court relied on Black’s Law Dictionary to conclude, in

the context of yet another insurance policy, that “disparagement of goods, products, or services involves the

denigration, discrediting, or belittling of a person’s or

organization’s goods, products, or services.”

We conclude that the Indiana Supreme Court would

rely on dictionary definitions to find that the term “disparage,” as it is used in the settlement agreement, means

“to dishonor by comparison; to unjustly discredit or

detract from the reputation of; to lower in esteem; to

denigrate; to belittle.” The real dispute, however, is

whether the term “disparage” applies in the context of

injuries to an individual’s reputation (in a manner akin

to the tort of defamation), or whether it refers more

narrowly to assaults on one’s reputation in the business

or commercial context. The district court took the later

approach, concluding that the “act of escorting Rain out

of the event was not designed to, and in fact did not,

detract from Rain’s reputation as a businessman or

carry with it any inherent message regarding his

character, his products or his business dealings,” and

thus did not constitute disparagement. By contrast, Rain

contends that his personal embarrassment can constitute disparagement. 

We find that the meaning of the word “disparage” in

the settlement agreement properly is limited to actions

dishonoring, discrediting, denigrating or belittling the

parties’ economic, business or professional interests.

As the case law discussed above indicates, the term

disparage generally arises in the context of commercial
14 No. 10-1290

Appellants rely on Indiana Ins. Co. for their contention that 1

Rain’s personal embarrassment constitutes disparagement. In

Indiana Ins. Co., the insured, a school, sued its insurer to

recover the costs of defending a lawsuit brought by a former

teacher. 665 N.E.2d 630. The teacher asserted a number of state

law tort claims against the school, alleging that the school’s

actions had caused him humiliation, embarrassment, and a

loss of standing and reputation within the school system and

the community. Id. at 634. The school’s insurance policy

required the insurer to “pay on behalf of the insured all sums

which the insured shall become legally obligated to pay as

damages because of injury . . . sustained by any person or

organization and arising out of . . . the publication or utterance

of a libel or slander or of other defamatory or disparaging

material.” Id. at 633. The court concluded that the teacher’s

“allegations fit within the broadly written confines of ‘other

defamatory or disparaging material,’ ” and thus that the

insurer had “a duty to defend the School against [the

teacher’s] claims.” Id. at 635. Rain’s reliance on Indiana Ins. Co.

is misplaced for two reasons. First, the Indiana Ins. Co. court

did not conclude that embarrassment constituted disparagement. Rather, the court concluded that the teacher’s complaint—which included allegations of reputational harm—

alleged the publication of “ ‘other defamatory or disparaging

material.’ ” Under Indiana law, a statement is defamatory if

it tends “to harm a person’s reputation by lowering the

(continued...)

or professional interests. For example, in both Heritage

and Westfield, the insurance policies at issue specifically

referred to disparagement of “a person’s or organization’s

goods, products or services.” See 97 F. Supp. 2d at 932;

2010 WL 989933, at *12 (emphasis added).1
No. 10-1290 15

(...continued)

person in the community’s estimation or deterring third

persons from dealing or associating with the person.” Kelley v.

Tanoos, 865 N.E.2d 593,596 (Ind. 2007) (internal citation omitted). Therefore, it seems likely that the court’s decision was

based in large part on the policy’s inclusion of the word

“defamatory,” rather than on the term “disparaging.” The

contract provision at issue is not so broad; it is limited to

disparagement. Second, the teacher in Indiana Ins. Co. alleged

harm to his reputation in the school system, which conceivably could impact his professional prospects. Rain alleged

no harm to his reputation as a businessman.

Furthermore, the other area of law in which the term

“disparage” arises is in connection with the tort of

product disparagement, which indicates that the word

relates primarily to attacks on business interests as opposed to individuals. In Sanderson v. Indiana Soft Water

Services, Inc., 2004 WL 1784755 (S.D. Ind. July 23, 2004),

then-district court Judge Hamilton considered a product

disparagement claim asserted under Indiana law. Judge

Hamilton noted that the tort, which “has also been described by commentators as ‘disparagement of property,’

‘slander of goods,’ ‘commercial disparagement,’ ‘trade

libel,’ and ‘injurious falsehood[,]’ . . . differs from defamation in that it seeks to protect economic interests

rather than reputational interests.” Id. at *7 (citing

Prosser and Keaton on the Law of Torts § 128, at 963

(5th ed. 1984); Restatement (Second) of Torts §§ 623A, 624

(1977); American Academic Suppliers, Inc. v. Beckley-Cardy,

Inc., 922 F.2d 1317, 1323 (7th Cir. 1991) (applying

Illinois and Ohio law)). Courts in other jurisdictions
16 No. 10-1290

In Bankwest, the Tenth Circuit interpreted the phrase “other 2

defamatory or disparaging material” in an insurance policy

by looking to the scope of the commercial disparagement tort.

63 F.3d at 980.

similarly have recognized that the tort of disparagement relates to business interests, not reputational ones.

See Thompson v. Maryland Cas. Co., 84 P.3d 496, 506

(Colo. 2004) (“the tort of disparagement differs from

defamation in that it focuses on the economic consequences of an injurious statement rather than on

damage to reputation”); Zerpol Corp. v. DMP Corp., 561

F.Supp. 404, 408 (E.D. Penn. 1983) (“[t]he cause of action

for disparagement . . . protects economic interests by

providing a remedy to one who suffers pecuniary loss

from slurs affecting the marketability of his goods”);

Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 766

(Tex. 1987) (the tort of business disparagement “is part

of the body of law concerned with the subject of interference with commercial or economic relations”); Bankwest v. Fidelity & Deposit Co. of Maryland, 63 F.3d 974,

980 (10th Cir. 1995) (applying Kansas law and noting that

the tort variously know as “ ‘disparagement of property,’

‘slander of goods,’ ‘commercial disparagement,’ . . . ‘trade

libel’ . . . [and] ‘injurious falsehood’ . . . has been broadly

interpreted to include the publication of ‘other falsehoods harmful to any legal interest of another that has

pecuniary value’ ”) (citations omitted). Likewise, the 2

Restatement, which refers to the tort as “injurious falsehood,” contrasts actions for defamation, which “protect

the personal reputation of the injured party,” with

actions for injurious falsehood, which “protect economic
No. 10-1290 17

Because of the commercial and competitive relationships 3

between the parties in this case, our predictions about the

limited meaning of the term “disparagement” in this context

would not necessarily extend to other contexts, such as

family law or other, more personal settings, in which parties

may agree not to “disparage” one another.

interests of the injured party against pecuniary loss.”

Restatement (Second) of Torts § 623A cmt. g. 

In determining the intention of the parties to a

contract, Indiana courts—in addition to ascertaining

the plain meaning of the contract terms—have a “duty

to consider . . . the surrounding circumstances which

existed at the time the contract was made,” including

“the nature of the agreement, together with all the facts

and circumstances leading up to the execution of the

contract, the relation of the parties, the nature and situation of the subject matter, and the apparent purpose of

making the contract.” Ruff v. Charter Behavioral Health

System of Northwest Indiana, Inc., 699 N.E.2d 1171, 1176

(Ind. Ct. App. 1998) (citation omitted). Here, the circumstances surrounding the execution of the settlement

agreement confirm our conclusion that the parties

intended the non-disparagement clause to protect their

business interests. In particular, the parties—direct business competitors—executed the non-disparagement

clause as part of an agreement to settle a commercial

dispute concerning Rolls-Royce’s intellectual property.

3

For the foregoing reasons, we conclude that the HeliExpo incident did not constitute disparagement in violation of the settlement agreement because there is no

indication that Rain’s business or his reputation as a
18 No. 10-1290

businessman was adversely impacted. To the contrary,

the record evidence indicates that appellants’ business

associates, the AMCs, thought that Rolls-Royce was in

the wrong for forcing Rain to leave the event.

Again, Rain asks this Court to certify a question to

the Indiana Supreme Court—namely, what the proper

definition of disparagement is under these circumstances. We decline that request. “[F]act specific, particularized decisions that lack broad, general significance

are not suitable for certification to a state’s highest court.”

Woodbridge Place Apartments v. Washington Square Capital,

Inc., 965 F.2d 1429, 1434 (7th Cir. 1992) (citing Diginet, Inc.

v. Western Union ATS, Inc., 958 F.2d 1388, 1395 (7th Cir.

1992)). Appellants’ claim involves the interpretation

of a contract, and the term “disparage” as it is used

in that contract. “Cases involving the interpretation of

contractual documents . . . by nature [involve] particularized inquiries,” that turn on the specific contract

language, and the circumstances surrounding the contract’s execution. Woodbridge Place Apartments, 965

F.2d at 1434. Moreover, our interpretation of the term

“disparage” lacks significance beyond this case, as it is

limited to the term’s use in the particular agreement at

issue. Therefore, certification is not appropriate.

III. Conclusion

For the foregoing reasons, we AFFIRM the district

court’s judgment.

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