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w . v i l l a no va . e du/thir dc ir c uit_2006/1266NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 05-1502

FRANK ANGRISANI,

Appellant

v. CAPITAL ACCESS NETWORK, INC.; ADVANCEME, INC; COUNTRYWIDE BUSINESS ALLIANCE; GARY A. JOHNSON, in his individual and official capacities; W. CARTER SULLIVAN, III, in his individual and official capacities; MARC TESLER, in his individual and official capacities; JAMES DUFFY, in his individual and official capacities; DAVID SCHACNE, in his individual and official capacities; BRIAN ZIPP, in his individual and official capacities;

LES FALKE, in his individual and official capacities
Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 02-cv-03167) District Judge: Honorable William J. Martini
Argued March 30, 2006 Before: RENDELL, SMITH and BECKER, Circuit Judges

. (Filed: April 14, 2006)2 Kevin Kiernan [ARGUED] Kiernan & Campbell 206 Claremont Avenue Montclair, NJ 07042 Counsel for Appellant Mark W. Lerner [ARGUED] Kasowitz, Benson, Torres & Friedman 1633 Broadway, 21st Floor New York, NY 10019 Counsel for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge. This case comes to us on appeal from the District Court’s grant of summary judgment in favor of defendant Capital Ac cess Network, Inc. (“Capital”). Frank Angrisani left his lucrative position at We stern Union to accept a position as CEO of Capital. Angrisani claims that he was i nduced to leave his position with Western Union and accept the position with Capital as a resu lt of false statements made to him by Capital’s representatives. In addition, Angris ani claims that Capital tortiously interfered with his employment relationship with We stern Union. He bases this tortious interference claim on essentially the same th eory as his common-law fraud claim, i.e., that Capital induced him to leave his lucr ative position with Western Union through the use of false statements. Angrisani also clai ms that Capital breachedits agreement to pay him a year-end bonus and grant him stock to which he was contractually entitled. TheThe District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction over an appeal from the District Court’s grant of summary judgment pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of summary judgment, and apply the same standard the District Court was required to apply. Stratton v. E.I. DuPont DeNemours & Co. , 363 F.3d 250, 253 (3d Cir. 2004). Summary judgment is appropriate if there are no genuine issues of material fact presented and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett , 477 U.S. 317 (1986). We resolve all factual doubts and draw all reasonable inferences in favor of the nonmoving party. Conoshenti v. Public Serv. Elec. & Gas Co. , 364 F.3d 135, 140 (3d Cir. 2004). 3 District Court granted summary judgment against Angrisani on all three claims. 1 We will reverse as to the claim for fraudulent misrepresentation. 2
I. Fraud Under New Jersey law, applicable here, a common-law fraud action has five elements: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its fals ity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages. Gennari v. Weichert Co. Realtors , 148 N.J. 582, 584 (1997). In order to succeed on an allegation of fraud, a litigant must prove hi s claim by clear and convincing evidence. Fox v. Mercedes-Benz Credit Corp. , 281 N.J. Super. 476, 484 (N.J. App. Div. 1995). Statements as to future or contingent events, as to expectations and probabilities, or as to what will be or is intended to be done in the future, do not constitute misrepresentations even though they turn out to be false, at least where they are not made with intent to deceive, and where the parties have equal means of knowledge. Middlesex4 County Sewerage Authority v. Borough of Middlesex , 74 N.J. Super. 591, 605 (N.J. App. Div. 1962). Similarly, statements that can be categorized as “puffery” or vague and “illdefined opinions” are not assurances of factand do not constitute misrepresentations. Alexander v. CIGNA Corp. , 991 F. Supp. 427, 434 (D.N.J. 1998). Angrisani identifies four material misrep resentations he alleges were made by Capital’s representatives, including Gary J ohnson, the chairman of Capital’s board of directors, Marc Tesler, another Capital board member, and Les Falke, the company’s president and a board member. These alle ged misrepresentations include (1) the existence of a legal opinion verifying that Capital’s business practices did not violate the law; (2) that the company was operating at a rate of less than 5% loan losses; (3) the existence of a patent or pending patent as to Capital’s method of loan processing; and (4) the commitment of 100 million dollars in cap ital financing. The issue before us is whether the record regarding Capital’s representations presents issues of material fact for a jury as to the elements of th is claim. We find that it does. The District Court rejected Angrisani’s claims based on its conclusion that some of the statements made to Angrisani were st atements of opinion and future expectations, and that Angrisani was an intelligent and sophisticated busine ssman and should have more fully investigated the claims of Capital’s agents. However, several of the assurances given and facts stated constitu ted misrepresentations of present facts. Furthermore, the question of whether A ngrisani’s investigation and reliance was5 reasonable presents a factual issue that is mo re properly left to the judgment of the jury. See Rodi v. S. New England School Of Law , 389 F.3d 5, 16 (1st Cir. 2004) (reasonableness of a party’s reliance ordinarily constitutes a question of fact for the jury); Miller v. Premier Corp. , 608 F.2d 973, 982 (4th Cir. 1979) (“[I]ssues of reliance and its reasonableness, going as they do to subjec tive states of mind and applications of objective standards of reasonableness, are pr eeminently factual issues for the trier of fact.”); Wolff v. Allstate Life Ins. Co. , 985 F.2d 1524, 1531 (11th Cir. 1993)

. Given the now apparent falsity of many statements made to him by persons of authority at Capital, we cannot say that it was unreasonable for Angrisani to rely on these statements. See Jewish Ctr. of Sussex County v. Whale , 86 N.J. 619, 626 n.1 ( 1981) (“One who engages in fraud, however, may not urge that one’s vi ctim should have been more circumspect or astute.”) ( citing Pioneer Nat’l Title Ins. Co. v. Lucas , 155 N.J. Super. 332, 342 (N.J. App. Div.), aff’d , 78 N.J. 320 (1978)). Accordingly, we w ill reverse the District Court’s grant of summary judgment and remand for the case to proceed to trial on the claim of fraudulent inducement. II. Tortious Interference Under New Jersey law, a claim of tortious interference requires a showing of (1) intentional and malicious interference (w ithout justification); (2) with a prospective or existing economic or contractual relationship with a third party; (3) causing the loss of prospective gain; and (4) damages. See, e.g., Printing Mart-Morristown v. Sharp Elec.6 Corp. , 116 N.J. 739, 751 (1989). Angrisani’s clai m for tortious interference alleges that Capital’s representatives intentionally a nd tortiously interfered with his business relationship with Western Union. The District Court granted summary judgment in favor of Angrisani. We agree with the District Court’s conclusion. Angrisani has failed to produce any evid ence suggesting that Capital acted to induce Western Union to terminate him, or that it prevented Angrisani from performing his job. Angrisani has not alleged that Capital requested Western Union to sever its relationship with him. Mere misrepresentati ons made to a third party’s employee for the purpose of recruiting that employee do not c onstitute tortious interference without some additional showing either of a specific inte nt to interfere with the prior employment relationship or of direct causal interferenc e with the performance of that employment agreement. Therefore, we will affirm the District Court’s grant of summary judgment as to Angrisani’s tortious interference claim. III. Breach of Contract Angrisani’s breach of contract claim cons ists of a claim for a year-end bonus, and a claim for the value of 85,354 shares of stoc k representing 4% of the company’s shares. The District Court originally denied Cap ital’s motion for summary judgment as to this claim. However, upon Capital’s motion for rec onsideration, the District Court granted summary judgment with respect to Angrisani’s claim to the stock. In Capital’s motion for summary judgment, it argued that Angrisani was notWhen a stock option “vests,” the holder of the option typically has an immediate right to exercise the option and thereby convert it into stock by paying the exercise price. However, a stock option does not automatically become stock at the time that it vests; an action– the exercise– is usually required on the part of the option holder. See William M. Fletcher, Fletcher Cyclopedia Corporations § 5575 (2001 ed.); Lucente v. International Business Machines Corp. , 146 F.Supp.2d 298 (S.D.N.Y. 2001), rev’d and remanded on other grounds , 310 F.3d 243 (2d Cir. 2002). 7 entitled to the 85,354 shares of stock because his agreement unambiguously provided that he would receive not stock but 85,354 stock options, which Angrisani never attempted to exercise. In fact, this assertion is supported by the text of the employment contract, which stated, under the heading “Stock Op tions,” “you will be granted 85,354 stock options.” (Pa163). The contract further provi ded that the options would have an exercise price per share between $20 and $25 as establis hed by the Board of Directors and that the options would fully vest on Angrisani’s termination. 3 The District Court properly found that Angrisani had never attempted to exerci se his stock options and that Capital had never thwarted any attempt by Angrisani to do so. We agree. At deposition, Angrisani admitted that he had never attempted to exerci se the stock options. He was asked, “So at no time did you attempt to exercise the options ?” He answered, “Correct.” Angrisani Dep. at 275, Pa122. Accordingly, he has no right to the stock. Angrisani’s theory regarding this claim has morphed over time. In his amended complaint and in his brief in opposition to Capital’s motion for summary judgment, he argued that his employment agreement entitled him to stock. In his motion in opposition to defendant’s motion for reargument, and now on appeal, Angrisani argues that he is8 entitled to stock options , that Capital violated his employment contract in seeking to unilaterally change the terms of the opti ons contract. However, Angrisani did not advance this argument to the District Court in the first instance, and we conclude that the District Court was correct not to consider it at reargument. Furthermore, we will not consider it for the first time on appeal. Thus, we agree with the analysis of th e District Court. As Angrisani never attempted to exercise the options referred to in his employment agreement, he has no claim for breach of contract as to the 85,354 sh ares of stock. We will affirm the District Court’s grant of summary judgment as to this breach of contract claim.
IV. In sum, we will reverse the District Court’s grant of summary judgment with respect to Angrisani’s claim for common-law fraud. We will affirm the District Court’s order granting summary judgment as to Angris ani’s claims for tortious interference and breach of contract.