Jewel Sanitary Napkins , LLC v. Busy Beaver Publications , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-1905
J EWEL SANITARY NAPKINS , LLC,
Plaintiff-Appellant,
v.
BUSY BEAVER P UBLICATIONS , LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:23-cv-00126 — Stephen L. Crocker, Magistrate Judge.
____________________
A RGUED FEBRUARY 17, 2026 — D ECIDED J UNE 10, 2026
____________________
Before BRENNAN, Chief Judge, and R IPPLE and T AIBLESON,
Circuit Judges.
BRENNAN, Chief Judge. Jewel Sanitary Napkins sells femi-
nine hygiene products containing materials with purported
health benefits. Over the past few years, Jewel has advertised
its products to the Amish community through Busy Beaver’s
advertising publications. After Busy Beaver published a
reader-submitted ad, Jewel sued for defamation, alleging the
ad made false accusations about the safety of Jewel’s

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2 No. 25-1905
products. Because Jewel presents no evidence that would al-
low a jury to reasonably conclude that Busy Beaver acted with
actual malice, its claim fails.
I
Jewel Sanitary Napkins, LLC is a Georgia company that
sells “all-natural sanitary napkins and pads” under the
“REIGN” brand. In the past few years, Jewel has developed a
market within the Amish community for these products. One
is the Reign pad which Jewel markets as containing a layer of
the “Nobel Prize Winning material ‘Graphene.’” Jewel’s web-
site and social media promote graphene as “provid[ing] vari-
ous health benefits” including relieving abdominal cramps,
balancing the body’s PH (acid-base) levels, eliminating bacte-
ria and aroma, fighting fatigue, and boosting metabolism and
the immune system. The website also claims that “[g]raphene
moves heat away from your core and contains vibrational en-
ergy.” As part of its promotion, Jewel uploaded a video to
YouTube demonstrating that a Reign pad’s graphene strip can
light a lightbulb.
Busy Beaver Publications, LLC is a Wisconsin company
that publishes and distributes The Busy Beaver, an advertis-
ing publication with several regional editions. Since 2019, as
part of Jewel’s strategy to market to the Amish and Mennonite
communities, Jewel’s distributors have placed hundreds of
advertisements in various Busy Beaver publications.
Around August 2022, Busy Beaver’s Pennsylvania office
received an ad submission from Betty Lantz questioning the
safety of the Reign products. Lantz included her name and
address but checked “no” to a question asking if she wanted
her name and address published in the ad. A Busy Beaver

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No. 25-1905 3
typist then entered Lantz’s submission into an Excel sheet
with other ads to be published in the August 26, 2022 edition
of its publication, The Busy Beaver of PA+.
Once the submission was typed into the Excel file, Ivan
Lapp, a salesman for The Busy Beaver of PA+, proofread it.
Lapp, who reads about 1,400 ads per week, raised no concerns
about the submission.
In the months before publication, rumors had circulated in
the Amish community about Jewel’s products, including that
the Reign pads covertly delivered vaccines, contained radia-
tion and metal, and caused cancer, miscarriages, and infertil-
ity. Though Lapp was familiar with ads about Reign products,
he conducted no further research about the submission. The
ad was published in the August 26 edition of The Busy Beaver
of PA+.
The next month, Lee Eicher, a Busy Beaver sales repre-
sentative for Michigan and Indiana, received a call from a
Jewel distributor claiming that the published ad contained
false information about Reign pads. Because Busy Beaver
does not print retractions but offers the opportunity to print
correct information, Eicher emailed Jewel’s chief executive of-
ficer offering about three months of free advertising, amount-
ing to over six million pages. Jewel did not accept the offer
and instead sued Busy Beaver for libel and trade libel, invok-
ing diversity of citizenship federal jurisdiction under 28
U.S.C. § 1332(a)(1).
During discovery, Jewel tried to obtain Lantz’s original
submission. Busy Beaver responded that Lapp was responsi-
ble for proofreading the ad, and that under Busy Beaver’s
standard practice, the original submission was likely

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4 No. 25-1905
shredded. For months, Jewel did not follow up or attempt to
subpoena or depose Lantz.
Busy Beaver moved for summary judgment. After the dis-
trict court’s deadline for filing dispositive motions passed,
Jewel filed a spoliation motion, claiming that Busy Beaver in-
tentionally destroyed Lantz’s original submission form. Jewel
asked the court to impose an adverse inference because the
destroyed evidence “would have shown that Busy Beaver
acted with actual malice.”
In response, Busy Beaver subpoenaed Lantz, who pro-
vided the original submission form. Busy Beaver then gave
Jewel a copy of the submission form and a declaration signed
by Lantz. Jewel withdrew its spoliation motion.
Six days later, Jewel moved to hold its summary judgment
motion in abeyance. The district court denied this motion.
Jewel then sought sanctions against Busy Beaver for failing to
timely disclose the existence of the original submission, claim-
ing it was prejudiced in its discovery efforts and opposition to
summary judgment. For these reasons, Jewel also requested
that the court reopen summary judgment briefing. The court
denied this motion and granted Busy Beaver summary judg-
ment. Jewel timely appeals.
II
We review a grant of summary judgment de novo, con-
struing the evidence and drawing inferences in the nonmov-
ing party’s favor. Bourke v. Collins, 142 F.4th 918, 921 (7th Cir.
2025). “An inference is not reasonable if it is directly contra-
dicted by direct evidence provided at the summary judgment
stage, nor is a ‘conceivable’ inference necessarily reasonable
at summary judgment.” Downing v. Abbott Lab'ys, 48 F.4th 793,

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No. 25-1905 5
815 (7th Cir. 2022) (citations omitted). Jewel contends that the
court erred “by failing to recognize evidence as material,
drawing inferences against Jewel, crediting admittedly ‘mud-
dled’ testimony, weighing evidence, fact-finding, and failing
to review the record cumulatively.”
A
We must first decide which state’s law applies. When there
is no dispute, we apply “the law of the state in which the fed-
eral court sits.” Kap Holdings, LLC v. Mar-Cone Appliance Parts
Co., 55 F.4th 517, 522 (7th Cir. 2022) (citation omitted). In this
diversity case, that is Wisconsin.
Under Wisconsin law, a plaintiff claiming defamation
must show that the challenged statement was (1) false, (2)
communicated by conduct, speech, or in writing to a third
party, and (3) “unprivileged and tends to harm one's reputa-
tion so as to lower him or her in the estimation of the commu-
nity or to deter third persons from associating or dealing with
him or her.” In re Storms v. Action Wis. Inc., 2008 WI 56, ¶ 37
(Wis. 2008) (citation omitted); Sidoff v. Merry, 2023 WI App 49,
¶ 13 (Wis. Ct. App. 2023). Additionally, the constitutional
guarantees of freedom of speech and press require a public
figure to prove actual malice to recover damages for a defam-
atory statement relating to his official conduct. N.Y. Times Co.
v. Sullivan, 376 U.S. 254, 279–80 (1964). Jewel concedes it is a
limited purpose public figure, so it must show that Busy Bea-
ver’s statements were made with actual malice. See id.
Actual malice requires a defamatory statement to be made
“with knowledge that it was false or with reckless disregard
of whether it was false or not.” Id. at 280. “Reckless disregard”
is a subjective standard, requiring a plaintiff to show the

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6 No. 25-1905
statement was published “despite a high degree of awareness
of [its] probable falsity,” or the defendant “in fact entertained
serious doubts as to [its] truth[.]” Madison v. Frazier, 539 F.3d
646, 657–58 (7th Cir. 2008) (citation omitted). While plaintiffs
can prove this state of mind with circumstantial evidence,
“courts must be careful not to place too much reliance on such
factors.” Chi. Dist. Council of Carpenters Pension Fund v. Reinke
Insulation Co., 464 F.3d 651, 655 (7th. Cir. 2006) (quoting Harte-
Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 668 (1989)).
Jewel offers several arguments that Busy Beaver acted
with actual malice. These include that altered punctuation
materially changed the message, the ad was inherently im-
probable, and that Busy Beaver deviated from its typical prac-
tices, failed to verify the fact or source, and refused to retract
the ad.
1
First, Jewel claims altered punctuation marks in the ad
“change[d] a critical portion of the defamatory language from
an express statement of fact to … [a] question and … re-
move[d] inflammatory emphasis.” At publication, Busy Bea-
ver changed some of the submission’s punctuation to com-
mas:
Lantz’s Submission:
Attention! Are the Reign products as safe as
they say? Graphene is a conductive metal mean-
ing it attracts electrical waves/radiation from the
air. Do we want this close to our bodies? Will we
see serious consequences for using this prod-
uct? Don’t just go by what the company says!! –
A concerned sister –

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No. 25-1905 7
Busy Beaver’s Publication:
Attention! Are the Reign products as safe as
they say? Graphene is a conductive metal mean-
ing it attracts electrical waves/radiation from the
air, Do we want this close to our bodies, Will we
see serious consequences for using this prod-
uct? Don’t just go by what the company says, A
concerned sister.
These alterations, Jewel claims, were material evidence for de-
termining actual malice.
But to prove that point, a plaintiff must show the altera-
tions were deliberate and resulted in a material change to the
meaning conveyed by the statement. Masson v. New Yorker
Mag., Inc., 501 U.S. 496, 517 (1991). We have previously held
that a defendant did not act with “actual malice” when pub-
lishing statements that were “substantially true” and could be
“reasonably … interpreted” as the truth. Harris v. Quadracci,
48 F.3d 247, 253 (7th Cir. 1995) (applying Wisconsin law).
Jewel does not explain how the changes in punctuation
were either deliberate or resulted in a material change. The
changes made—replacing four punctuation marks with three
commas in the fourth and sixth lines of each excerpt above,
and two dashes with a period in the final two lines—do not
amount to an alteration “having a different effect on the mind
of the reader.” Masson, 501 U.S. at 517 (citation modified).
There, a psychoanalyst sued The New Yorker magazine, claim-
ing that the publication intentionally misquoted his interview
by placing quotation marks around phrases he had not said.
Id. at 502. The Court held that the inclusion of quotation
marks showed actual malice only if the alterations were

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8 No. 25-1905
deliberate and materially changed the meaning of the state-
ment. Id. at 517, 524–25. But not every “alteration beyond cor-
rection of grammar or syntax by itself proves falsity in the
sense relevant to determining actual malice under the
First Amendment.” Id. at 514. Besides, Jewel asserts that the
original unaltered submission was also false. Because Jewel
cannot distinguish how the altered punctuation was deliber-
ate or materially changed the meaning of the statement, its
alteration argument does not persuade.
Next, Jewel contends the ad “was inherently improbable
and highly disparaging,” thereby allowing an inference of ac-
tual malice. To Jewel, the ad was unusually disparaging, so
the court should have inferred actual malice under Babb v.
Minder, 806 F.2d 749 (7th Cir. 1986).
Although the submission may have stood out to Lapp be-
cause of its tone, the ad was not inherently improbable or
highly disparaging given Jewel’s own promotional claims
and previous Jewel ads published by Busy Beaver. See St.
Amant v. Thompson, 390 U.S. 727, 732 (1968). Regardless,
Lapp’s “[f]ailure to investigate does not in itself establish bad
faith.” Id. at 733; see also Harte-Hanks, 491 U.S. at 688 (“failure
to investigate before publishing, even when a reasonably pru-
dent person would have done so, is not sufficient to establish
reckless disregard”).
The question is whether the statement was made with ac-
tual malice. Despite Jewel’s contentions, this means the dis-
trict court did not need to apply Babb. That case considered
whether the defendant failed to investigate statements re-
garding the plaintiff’s workplace sexual conduct that could
have been proven true or false. 806 F.2d at 757–58. Because the
defendant—who was “definitely aware” of the statements’

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No. 25-1905 9
potential falsity—did not present an innocent construction of
the statement under Illinois law, the statements were treated
as defamatory per se. Id. at 756, 758. For this case, it does not
matter whether the ad was “highly disparaging.” There is no
evidence that Lapp or any other Busy Beaver employee reck-
lessly disregarded the truth or had any serious doubts about
the veracity of the claims in publishing the statement. See In
re Storms, 2008 WI at ¶ 71. That alone defeats Jewel’s argu-
ment.
Jewel attempts to confuse this analysis by presenting the
facts in a manner unsupported by the record. On Jewel’s tell-
ing, Lapp went to Lantz’s house to confront her about the sub-
mission before publication. If this were true, it could show a
failure to investigate and verify facts. See St. Amant, 390 U.S.
at 732–33. But the trip to Lantz’s house occurred after publi-
cation and after Busy Beaver was notified of the problematic
nature of the ad. Lapp also testified that although the ad
caught his attention because it was “questioning somebody
else’s product,” he “le[t] it go” because he “didn’t have a lot
of time to do any research.” So, the facts do not show Lapp
had an awareness of probable falsity that could point towards
actual malice.
2
Jewel’s next arguments concern Busy Beaver’s actions. The
district court held that the publishing company’s alleged de-
viation from internal practices by printing the ad anony-
mously does not support a finding of actual malice. Jewel con-
tests this conclusion, arguing that the court incorrectly
weighed disputed testimony from Busy Beaver employees
Hershberger and Eicher. But Jewel’s challenge to the court’s
weighing of testimony is weak. The record shows that Busy

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10 No. 25-1905
Beaver previously published submissions anonymously. So,
the decision to publish the ad without identifying Lantz does
not depart from past practice.
Further, the district court may consider a fact undisputed
when a party does not properly respond under Federal Rule
of Civil Procedure 56(e). Throughout its objections and re-
sponses to Busy Beaver’s proposed findings of fact, Jewel fails
to directly address Busy Beaver’s propositions, mainly by
claiming the findings are “self-serving” without any further
legal basis.
In the alternative, Jewel posits that Busy Beaver’s decision
to publish the ad anonymously is evidence of actual malice.
But the case Jewel relies upon, St. Amant, states the use of an
“unverified anonymous” source is circumstantial evidence of
actual malice. 390 U.S. at 732 (emphasis added). It does not
address a verifiable source who requests anonymity. See id. Alt-
hough the ad was published anonymously, Lantz disclosed
her name and address on the submission form. Thus, the con-
cern over whether the statement was made in good faith is
mitigated because there are fewer “obvious reasons” to doubt
Lantz’s veracity and the information could be sourced. Id.
Busy Beaver’s alleged failure to fact-check before publica-
tion also cannot support a finding of actual malice. Probative
evidence of actual malice is established when there are “obvi-
ous reasons to doubt the veracity of the informant or the ac-
curacy of [the] reports.” Harte-Hanks, 491 U.S. at 688 (citation
omitted); see also In re Storms, 2008 WI 56 at ¶ 39. Lapp stated
that he “did not know … if any of the statements in the adver-
tisement were true or false.” But that is not his job. Lapp is not
a fact-checker, but a proofreader who reviews 1,400 ads a

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No. 25-1905 11
week and does not use the Internet for any work-related pur-
pose beyond email.
And post-publication, Busy Beaver’s failure to retract is
not evidence of its reckless disregard for the truth. In certain
circumstances, refusal to retract can be evidence of actual mal-
ice. Milsap v. J./Sentinel, Inc., 100 F.3d 1265, 1271 (7th Cir. 1996)
(per curiam) (interpreting Wisconsin law). But this is not one
of them. Busy Beaver’s policy is that the company does not
retract articles. And in lieu of retracting the ad, Busy Beaver
offered three months’ worth of ads, amounting to over six
million pages of free advertising. Jewel provides no other ev-
idence to support its contention that Busy Beaver’s refusal to
retract was based on actual malice.
Throughout its opening brief, Jewel argues the district
court erred by improperly weighing evidence and finding
facts in contravention of summary-judgment standards. Yet,
if a party “fails to properly address another party’s assertion
of fact” under Rule 56(e), the court may “consider the fact un-
disputed for the purposes of the motion.” FED. R. C IV. P.
56(e)(2). And the court is entitled to “grant summary judg-
ment if the motion and supporting materials—including the
facts considered undisputed—show that the movant is enti-
tled to it[.]” FED. R. C IV. P. 56(e)(3). Here, the district court re-
lied on the undisputed facts and was well within its discretion
to consider certain disputed facts as undisputed when Jewel
failed to properly address or respond to Busy Beaver’s pro-
posed facts.
A reasonable jury could not conclude that the ad’s claim
that graphene “attracts electrical waves/radiation from the
air” was improbable when Jewel advertised its product as
containing “vibrational energy.” Even more, Jewel’s

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12 No. 25-1905
chemist—retained to assess the veracity of the rumors circu-
lating about its products—described graphene as “a qua-
simetal” and “highly conductive for both electricity and
heat.” Accordingly, the district court correctly decided that
the circumstantial evidence presented by Jewel was insuffi-
cient “even in the aggregate” for a reasonable jury to find that
Busy Beaver acted with actual malice.
B
Even if its merits argument falls short, Jewel seeks sanc-
tions for Busy Beaver’s delay in producing the original sub-
mission. In its view, Busy Beaver “knew of the existence and
location of the Submission at the outset of discovery” but did
not timely disclose it, leaving Jewel to unnecessarily expend
resources in opposing summary judgment. We must evaluate
whether the district court erred by denying Jewel’s motion for
sanctions.
To impose sanctions, a district court must make a finding
of “bad faith, designed to obstruct the judicial process, or a
violation of a court order.” REXA, Inc. v. Chester, 42 F.4th 652,
671 (7th Cir. 2022) (citation omitted). We review the decision
of whether to impose sanctions for abuse of discretion. Id. This
review is deferential because, in ruling on sanctions, the dis-
trict court “exercises its inherent power.” Mullen v. Butler, 91
F.4th 1243, 1250 (7th Cir. 2024). We reverse only if “no reason-
able person would agree with the trial court’s ruling.” REXA,
Inc., 42 F.4th at 672 (citation omitted).
There is no evidence that Busy Beaver acted in bad faith.
Though Busy Beaver informed Jewel that its standard practice
was to shred advertising request forms 30 days after receipt,
it identified Lantz and Lapp as likely possessing discoverable

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No. 25-1905 13
information. Busy Beaver also notified Jewel it was “attempt-
ing to locate [the] responsive documents and w[ould] pro-
duce responsive documents if they are located.” Once Busy
Beaver learned Lapp had the Excel file containing the typed
version of the submission, it provided the information to
Jewel. And when Busy Beaver received the original submis-
sion after subpoenaing Lantz, it handed over the form to
Jewel a day later.
Moreover, delays and extra costs can be explained by
Jewel’s lack of diligence. Jewel had notice in June 2023 that it
could depose Lantz or Lapp to obtain information about the
submission. Yet, Jewel waited almost nine months to sub-
poena Lantz and nearly ten months to depose Lapp. Any mis-
characterization of the evidence is likely due to Jewel’s delay,
not Busy Beaver’s actions. A party who tries to forestall sum-
mary judgment is not entitled to further discovery. Citizens for
Appropriate Rural Rds. v. Foxx, 815 F.3d 1068, 1082 (7th Cir.
2016). Having held actionable information for months, Jewel
was not entitled to a windfall after the summary judgment
briefing deadline. And Jewel’s delays do not justify imposing
sanctions against Busy Beaver.
Jewel also fails to articulate an alternative litigation strat-
egy if it had known earlier about the original submission
form. Even when journalists have destroyed notes, courts
have declined to apply an adverse inference of actual malice
when unsupported by the facts. See Torgerson v. J./Sentinel,
Inc., 210 Wis.2d 524, 551–52 (Wis. 1997); Chang v. Michiana Tel-
ecasting Corp., 900 F.2d 1085, 1090 (7th Cir. 1990). And Jewel
cannot even show intentional destruction because it obtained
the submission.

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14 No. 25-1905
The district court, therefore, did not abuse its discretion in
denying Jewel’s motion for sanctions. Indeed, the district
court aptly admonished Jewel for focusing its litigation strat-
egy on sanctions instead of properly conducting discovery
and litigating on the merits.
III
The district court correctly concluded that Jewel failed to
present evidence that would allow a reasonable jury to find
that Busy Beaver acted with actual malice. The court also
properly denied Jewel’s request to reopen summary judg-
ment briefing, and it did not abuse its discretion in denying
Jewel’s motion for sanctions.
A FFIRMED

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