[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-11663

________________________

D.C. Docket No. 1:14-cv-03006-LMM

ANDREW FELDMAN, 

 Plaintiff - Appellant,

versus

AMERICAN DAWN, INC., 

VYTO TOZER, 

PAUL RASBAND, 

 Defendants - Appellees. 

________________________

Appeals from the United States District Court

for the Northern District of Georgia

________________________

(March 3, 2017)

Before WILLIAM PRYOR, JORDAN, and BALDOCK,* Circuit Judges.

WILLIAM PRYOR, Circuit Judge: 

 * Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by 

designation. 

Case: 16-11663 Date Filed: 03/03/2017 Page: 1 of 20 
2

The main question presented by this appeal is whether an employee has 

antitrust standing to challenge a conspiracy directed at his employer because the 

alleged conspiracy caused the employee’s termination. We must also decide 

whether the employee pleaded claims of racketeering, tortious interference, civil 

conspiracy, negligent misrepresentation, and fraud. American Dawn, Inc., a 

leading manufacturer of restaurant linens, fired Andrew Feldman, a restaurant 

linen salesman, for participating in a fraudulent scheme against ALSCO, a 

company that sells restaurant linens. Feldman later found employment with Baltic 

Linen Company, a competitor of American Dawn. After Feldman joined Baltic,

Vyto Tozer, a sales manager at American Dawn, and Paul Rasband, a consultant 

for ALSCO, allegedly conspired to freeze Baltic out of the restaurant linens 

market. Feldman’s job at Baltic was collateral damage of the alleged conspiracy,

and he filed a complaint against American Dawn, Tozer, and Rasband that alleges

violation of the antitrust laws, 15 U.S.C. § 1 et seq., and several other civil claims, 

which the district court dismissed. Because Feldman lacks antitrust standing to 

challenge a conspiracy directed at Baltic and his complaint fails to state any other 

claim, we affirm. 

I. BACKGROUND

According to his complaint, Andrew Feldman worked for fourteen years as a 

regional sales manager for American Dawn, Inc., a company that manufactures and 

Case: 16-11663 Date Filed: 03/03/2017 Page: 2 of 20 
3

sells textiles throughout the United States. Feldman was a leading salesman to 

ALSCO, a company that sells linens to restaurants, and one of the largest clients of 

American Dawn. Feldman’s primary contact at ALSCO was a consultant named 

Paul Rasband. Feldman’s supervisor at American Dawn was Vyto Tozer. Tozer 

and Rasband were personal friends.

American Dawn fired Feldman in 2011 for his participation in a deferred 

billing scheme. Under this practice, ALSCO ordered products from American 

Dawn, which shipped the products, and American Dawn billed ALSCO for the 

products at a later date. American Dawn used deferred billing to carry over its 

revenues from one fiscal year to the next and to hide its shipment of substandard 

goods to ALSCO. Employees of American Dawn deferred the bills of about thirty 

percent of its accounts with ALSCO. An internal audit of ALSCO revealed the

deferred billing scheme, which prompted ALSCO to open an investigation. The 

investigation uncovered an email sent to Feldman about the deferred billing of an 

American Dawn account. When ALSCO confronted American Dawn with this 

evidence, American Dawn blamed Feldman and fired him.

Although Feldman admitted in his complaint that he participated in the 

deferred billing scheme, he alleged that American Dawn fired him as 

“punishment” for another questionable practice of employees of American 

Dawn—the shipment of substandard products to ALSCO. During Feldman’s time 

Case: 16-11663 Date Filed: 03/03/2017 Page: 3 of 20 
4

at the company, American Dawn routinely substituted inferior goods for the goods 

that ALSCO ordered. To avoid product inspections implemented by ALSCO, 

Tozer directed Feldman and other employees to falsify product tests and to alter 

sales records. Rasband knew that the shipment of substandard products caused 

ALSCO to overpay American Dawn by as much as $175,000, but he requested that 

American Dawn repay less than half that amount. Feldman expressed concern 

about these practices to the management of American Dawn. 

After American Dawn fired Feldman, Tozer encouraged Feldman to seek 

severance pay. But American Dawn refused to offer Feldman severance. Tozer told 

Feldman that American Dawn refused to pay him severance because Feldman 

accepted a position with another company, Baltic, within thirty days of his 

termination. When Feldman raised the issue with the owners of American Dawn, 

he received a different response. They told him that they fired him because of his 

participation in the deferred billing scheme: “your dishonesty detrimentally 

impacted [the] relationship [of American Dawn] with a valued customer.” Feldman 

never received severance from American Dawn.

Baltic is a competitor of American Dawn. After it hired Feldman, Tozer and 

Rasband conspired to “freeze out Baltic . . . from sourcing [or] supplying 

commercial textiles to the restaurant linen rental market.” Rasband told Feldman’s 

supervisors that it was a “big mistake” to have hired Feldman and that Feldman 

Case: 16-11663 Date Filed: 03/03/2017 Page: 4 of 20 
5

“was no longer welcome at ALSCO, and that no one else from Baltic could be 

used . . . to secure ALSCO’s business.” Tozer told a Baltic executive that Feldman 

“post-dated and re-dated bills so that [Feldman] could receive more money” during 

his tenure at American Dawn and that Feldman acted as an “unethical ‘lone-wolf.’” 

Tozer and Rasband made these accusations to ensure that ALSCO remained an 

American Dawn customer “and not to deal with [Feldman] or Baltic.” 

In early 2012, Rasband requested bids on behalf of ALSCO from linens 

manufacturers, including Baltic and American Dawn. Although Baltic submitted 

one of the lowest bids overall, American Dawn won the contract because before it 

submitted its final bid to ALSCO, Rasband informed Tozer of the details of

competing bids and American Dawn altered its proposal in response. In exchange 

for this information, which American Dawn failed to give to Baltic or other 

companies, Tozer gave Rasband gifts “and other personal benefits.” The 

conspiracy to freeze Baltic out of the market by refusing to deal with Feldman and 

manipulating the bidding process led to Feldman’s discharge from Baltic in May

2013. 

Feldman filed a ten-count complaint against American Dawn, Rasband, and 

Tozer in the district court. Against all defendants, Feldman alleged violations of 

the federal antitrust laws, 15 U.S.C. § 1 et seq., violations of the federal and 

Georgia Racketeering Influenced and Corrupt Organizations acts, 18 U.S.C. 

Case: 16-11663 Date Filed: 03/03/2017 Page: 5 of 20 
6

§ 1961 et seq., Ga. Code Ann. § 16-14-1 et seq., and interference with business 

relations Against Rasband and Tozer, Feldman alleged a conspiracy to violate the 

federal and Georgia racketeering acts, interference with employment, and civil 

conspiracy. Against American Dawn and Tozer, Feldman alleged claims of 

negligent misrepresentation and fraud. American Dawn, Tozer, and Rasband 

moved to dismiss the complaint for failure to state a claim, and the district court 

granted their motions. 

II. STANDARD OF REVIEW

We review de novo the dismissal of a complaint under Federal Rule of Civil 

Procedure 12(b)(6) for failure to state a claim and construe all the allegations as 

true. Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003). A plaintiff must 

plausibly allege all the elements of the claim for relief. Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009). Conclusory allegations and legal conclusions are not sufficient; 

the plaintiffs must “state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 557, 570 (2007). For the claims of fraud, “a party 

must state with particularity the circumstances constituting fraud or mistake.” Fed. 

R. Civ. P. 9(b); see also Lamm v. State St. Bank & Trust, 749 F.3d 938, 951 (11th 

Cir. 2014) (negligent misrepresentation); Am. Dental Ass’n v. Cigna Corp., 605 

F.3d 1283, 1291 (11th Cir. 2010) (racketeering acts). “[A] plaintiff must allege: 

‘(1) the precise statements, documents, or misrepresentations made; (2) the time, 

Case: 16-11663 Date Filed: 03/03/2017 Page: 6 of 20 
7

place, and person responsible for the statement; (3) the content and manner in 

which these statements misled the [p]laintiff[]; and (4) what the defendant[] gained 

by the alleged fraud.’” Am. Dental, 605 F.3d at 1291 (quoting Brooks v. Blue Cross 

& Blue Shield of Fla., Inc., 116 F.3d 1364, 1380–81 (11th Cir. 1997)).

III. DISCUSSION

We divide our discussion in four parts. First, we explain that Feldman lacks

antitrust standing because he did not suffer an antitrust injury. Second, we explain 

that the complaint fails to allege predicate acts of racketeering activity that were 

the proximate cause of Feldman’s injury. Third, we explain that Feldman’s 

complaint fails to state a claim of tortious interference with business relations, 

tortious interference with employment, or civil conspiracy, because American 

Dawn, Rasband, and Tozer were not strangers to the relationship between 

Feldman, Baltic, and ALSCO. Fourth, we explain that the complaint fails to state 

claims of fraud or negligent misrepresentation because Tozer’s promise of 

severance pay was unenforceable as a contract. 

A. Feldman Suffered No Antitrust Injury.

In addition to “the basic ‘case or controversy’ or ‘injury in fact’ required by 

Article III of the Constitution,” a private plaintiff who seeks damages under the 

antitrust laws, such as Feldman, must establish “antitrust standing.” Sunbeam 

Television Corp. v. Nielsen Media Research, Inc., 711 F.3d 1264, 1270 (11th Cir. 

Case: 16-11663 Date Filed: 03/03/2017 Page: 7 of 20 
8

2013). To do so, Feldman must allege that he suffered an antitrust injury and that 

he is an “efficient enforcer” of the antitrust laws. Id. at 1271. An antitrust injury is 

the kind of injury that “the antitrust laws were intended to prevent and that flows 

from [the conduct that] makes [the] acts [of a defendant] unlawful.” Brunswick 

Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). 

Feldman argues that he has antitrust standing to challenge two categories of 

antitcompetetive conduct: conduct targeted at the labor market for Feldman’s 

labor, and conduct targeted at the market for restaurant linens. Both arguments fail. 

We address each in turn. 

Although “employees who are precluded from selling their labor have not 

necessarily suffered an antitrust injury, ‘employees may challenge antitrust 

violations that are premised on restraining the employment market.’” Eichorn v. 

AT & T Corp., 248 F.3d 131, 140–41 (3d Cir. 2001) (quoting Phillip Areeda & 

Herbert Hovenkamp, Antitrust Law ¶ 377a (rev. ed. 1995) (footnotes omitted)); see 

also Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172, 1176 (5th Cir. 1976). For 

example, the Third Circuit ruled that former employees had standing to challenge a 

“no-hire agreement” between three telecommunications companies, including one 

company for which the employees had worked. Eichorn, 248 F.3d at 141–42. The 

companies agreed not to hire the employees of the other companies, and the 

plaintiffs alleged that this agreement was a restraint of the labor market in which 

Case: 16-11663 Date Filed: 03/03/2017 Page: 8 of 20 
9

they were participants. Id. at 141–42. The court explained that the employees had 

standing “[b]ecause the no-hire agreement directly impeded plaintiffs’ ability to 

sell their labor to at least three companies within the competitive market.” Id. at 

142. The Tenth Circuit reached a similar conclusion. See Roman v. Cessna Aircraft 

Co., 55 F.3d 542, 544–45 (10th Cir. 1995). It ruled that a former employee of 

Boeing had standing to challenge an agreement between Boeing and Cessna not to 

hire employees “away from each other.” Id. at 543, 545. The court explained that 

“‘[j]ust as antitrust law seeks to preserve the free market opportunities of buyers 

and sellers of goods, so also it seeks to do the same for buyers and sellers of 

employment services.’” Id. at 544 (quoting Areeda & Hovenkamp, supra, at ¶ 377c 

(footnotes omitted)).

Feldman lacks antitrust standing to challenge a conspiracy “premised on 

restraining the employment market” for restaurant linen salesmen because he did 

not allege one. Eichorn, 248 F.3d at 141 (quoting Areeda & Hovenkamp, supra, at 

¶ 377a (footnotes omitted)). His complaint alleges a conspiracy targeted at Baltic,

not Feldman, to “freeze out Baltic . . . from sourcing [or] supplying commercial 

textiles to the restaurant linen rental market.” Feldman’s complaint alleges no 

agreements between competing restaurant linens producers akin to the agreements 

that have previously provided antitrust standing for a former employee. See 

Eichorn, 248 F.3d at 141–42, Roman, 55 F.3d at 544–45. 

Case: 16-11663 Date Filed: 03/03/2017 Page: 9 of 20 
10

Although Feldman lost his job with Baltic because of this alleged 

conspiracy, his collateral injury does not change our conclusion. That one laborer 

suffered injury does not convert the conspiracy into one aimed at restraining 

competition in the labor market. Indeed, the conspiracy injured Feldman to harm 

Baltic and competition in the market for restaurant linens, not to harm competition 

in the market for restaurant linens salesmen.

Feldman also argues that he has antitrust standing to challenge the 

conspiracy to restrain competition in the restaurant linens market, but that

argument runs counter to our precedent. Although antitrust law recognizes 

instances where a non-market participant has antitrust standing to challenge a 

conspiracy because his injury is “inextricably intertwined with the injury the 

conspirators sought to inflict on . . . the . . . market,” Blue Shield of Virginia v. 

McCready, 457 U.S. 465, 484 (1982), that doctrine does not apply here. We have 

held that “[n]either an officer nor an employee of a corporation has standing to

bring an action in his own right for an antitrust violation causing injury to the 

corporation and its business.” Nat’l Indep. Theatre Exhibitors, Inc. v. Buena Vista 

Distrib. Co., 748 F.2d 602, 608 (11th Cir. 1984). Feldman argues that National 

Independent Theatre Exhibitors is distinguishable because in that case we 

explained that the “there was no evidence that any of the . . . alleged behavior was 

directed against [the defendant] individually,” id., and Feldman’s complaint, in 

Case: 16-11663 Date Filed: 03/03/2017 Page: 10 of 20 
11

contrast, alleges that American Dawn, Tozer, and Rasband targeted him 

individually. But whether American Dawn, Tozer, and Rasband targeted Feldman 

is beside the point. Feldman did not suffer an antitrust injury because his complaint

alleges, like the plaintiff in National Independent Theatre Exhibitors, that he

suffered injury in the form of lost employment as an effect of the conspiracy to 

harm the market for restaurant linens. Feldman’s “financial injury” was 

“secondary” to the goal of reduced competition in the market for restaurant linens. 

Id. (citation omitted).

Although National Independent Theatre Exhibitors forecloses Feldman’s 

alternative argument on the facts alleged, he urges us to adopt one of the holdings 

of Ostrofe v. H.S. Crocker Co., 740 F.2d 739 (9th Cir. 1984). We cannot do so. In 

Ostrofe, the Ninth Circuit ruled that an employee had antitrust standing to 

challenge anticompetitive activity involving his employer because the employee 

would not participate in the scheme and his employer fired him as a result. Id. at 

744. The court explained that “the injury [the employee] sustained was such an 

integral part of the scheme to eliminate competition in that market” that the 

employee suffered antitrust injury. Id. at 746. This decision conflicts with our 

precedent. See Nat’l Indep. Theatre Exhibitors, 748 F.2d at 608. And there are 

compelling arguments against following the decision of the Ninth Circuit in any 

event. See Ostrofe, 740 F.2d at 748–52 (Kennedy, J. dissenting). Perhaps 

Case: 16-11663 Date Filed: 03/03/2017 Page: 11 of 20 
12

recognizing these problems, the Ninth Circuit narrowed the application of Ostrofe

to circumstances, not alleged in Feldman’s complaint, where an employee was an 

“essential participant” in an antitrust conspiracy, the employee’s termination was a 

“‘necessary means’ to accomplish the scheme, and the employee has the greatest 

incentive to challenge the antitrust violation.” Vinci v. Waste Mgmt., Inc., 80 F.3d 

1372, 1375–76 (9th Cir. 1996) (citation omitted). Feldman’s complaint does not 

satisfy that standard, so his alternative theory does not help him. Feldman has not 

alleged a cognizable antitrust injury and does not have antitrust standing to sue

American Dawn, Tozer, and Rasband.

B. The Complaint Fails to Allege Violations of the Racketeering Acts.

The complaint fails to state claims that American Dawn, Tozer, and Rasband 

violated the federal and Georgia racketeering acts, 18 U.S.C. § 1961 et seq., Ga. 

Code Ann. § 16-14-1 et seq., and that Tozer and Rasband conspired to violate 

those acts when they colluded to conceal their participation in the deferred billing 

scheme and the shipment of substandard products to ALSCO. The federal and 

Georgia racketeering acts are “essentially identical,” meaning failure to state a 

claim under the federal act warrants dismissal under the Georgia act. Simpson v. 

Sanderson Farms, Inc., 744 F.3d 702, 705 n.1 (11th Cir. 2014) (citation omitted).

To state a civil claim under the federal Racketeering Act, 18 U.S.C. § 1964(c), a 

complaint must allege “that the defendant committed a pattern of . . . predicate 

Case: 16-11663 Date Filed: 03/03/2017 Page: 12 of 20 
13

acts,” “that the plaintiff suffered injury to business or property,” and “that the 

defendant’s racketeering activity proximately caused the injury.” Id. at 705.

(citations omitted). “In order to prove a pattern of racketeering . . ., a plaintiff must 

show at least two racketeering predicates that are related, and that they amount to 

or pose a threat of continued criminal activity.” Am. Dental Ass’n, 605 F.3d at 

1290–91. To prove proximate causation, “[t]he connection between the

racketeering activity and the injury can be neither remote, purely contingent, nor 

indirect.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1349 (11th Cir. 2016) 

(citations omitted). 

Feldman argues that the complaint alleges a pattern of predicate acts in 

violation of the Travel Act, 18 U.S.C. § 1952, but the text of that statute refutes his 

argument. The Travel Act prohibits “distribut[ing] the proceeds of” “any business 

enterprise involving gambling, liquor . . ., narcotics . . ., . . . prostitution . . ., 

extortion, bribery, . . . arson,” id. § 1952(a)(1) & (b), or money laundering, id.

§ 1956. The complaint alleges none of these activities. Although the Travel Act 

incorporates the state law definition of some of these prohibited activities––id.

§ 1952(b) (“‘[U]nlawful activity’ means . . . extortion, bribery, or arson in 

violation of the laws of the State in which committed.”)––it does not incorporate 

common law fraud.

Case: 16-11663 Date Filed: 03/03/2017 Page: 13 of 20 
14

In addition, Feldman argues that the complaint alleges predicate acts of wire 

fraud, 18 U.S.C. § 1343. Feldman contends that the complaint alleges that Tozer 

and Rasband used the wires to spread falsehoods about Feldman to conceal their 

involvement in the deferred billing of ALSCO accounts and the shipment of 

substandard goods to ALSCO. According to Feldman, the comments of Tozer and 

Rasband were part of a “campaign to portray . . . Feldman as the villain in the 

deferred billing saga” and those comments constitute wire fraud. We disagree.

The complaint fails to allege predicate acts of wire fraud. “[W]ire fraud 

occurs when a person (1) intentionally participates in a scheme to defraud another 

of money or property and (2) uses the mails or wires in furtherance of that 

scheme.” Am. Dental, 605 F.3d at 1290 (citation omitted). The district court 

explained, and we agree, that the complaint alleges only one statement––not two––

made by either Tozer or Rasband over the wires in furtherance of the conspiracy to 

defraud ALSCO: when Rasband told Baltic managers that it was a “‘big mistake’ 

. . . to have hired . . . Feldman.” We also agree with the district court that this 

statement is not actionable as wire fraud because it is an expression of opinion, not 

“a misrepresentation as to some existing fact.” Cf. United States v. Svete, 556 F.3d 

1157, 1162 (11th Cir. 2009) (citation omitted).

Even if the complaint had alleged fraudulent statements made over the 

wires, Feldman’s argument would still fail because the statements were not the 

Case: 16-11663 Date Filed: 03/03/2017 Page: 14 of 20 
15

proximate cause of Feldman’s injury. Feldman argues that the “Complaint 

aver[red] that [Tozer and Rasband] urged ALSCO not to deal with . . . Feldman in 

furtherance of their plan to ‘frame’ him for the [deferred] billing scheme,” and this 

cover-up “procured” Feldman’s “constructive discharge” from the industry. But 

the complaint made clear that the alleged wire fraud targeted ALSCO, not 

Feldman, because Tozer and Rasband sought to cover up their involvement in the

deferred billing scheme and the shipment of substandard goods to ALSCO. 

Proximate causation requires a direct relation between the “injury asserted and the 

injurious conduct alleged,” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 457 

(2006) (citation omitted), and, here, the alleged injurious conduct targeted ALSCO. 

Feldman’s complaint fails to allege violations of the federal and Georgia 

racketeering acts. In addition, we affirm the dismissal of Feldman’s claim that 

Tozer and Rasband conspired to violate the racketeering acts. This claim 

necessarily fails because the complaint fails to allege an underlying violation of the 

racketeering acts. Jackson v. BellSouth Telecomm’ns, 372 F.3d 1250, 1269 (11th 

Cir. 2004).

C. The Complaint Fails to Allege Tortious Interference with Business Relations, 

Tortious Interference with Employment, and Civil Conspiracy.

Under Georgia law, a claim of tortious interference with business relations 

requires “improper action or wrongful conduct by the defendant,” while acting as a 

“stranger to the contract or business relation at issue.” Mabra v. SF, Inc., 728 

Case: 16-11663 Date Filed: 03/03/2017 Page: 15 of 20 
16

S.E.2d 737, 739–40 (Ga. Ct. App. 2012) (citations omitted). “One is not a stranger 

to the contract just because one is not a party to the contract.” Id. at 740 (citation 

omitted). Parties to an “interwoven contractual arrangement” and parties that have 

a “direct economic interest in or would benefit from a contract with which they are 

alleged to have interfered” are not strangers to that contract or relationship. Id.

(citations omitted). The Georgia Court of Appeals has ruled that an arcade game 

salesman, for example, was not a stranger to a business relationship between his 

former employer and several of its clients despite his solicitation of those clients 

for his new employer because the salesman had developed relationships with those 

clients when he worked for his previous employer. Tom’s Amusement Co. v. Total 

Vending Servs., 533 S.E.2d 413, 417–18 (Ga. Ct. App. 2000).

Feldman argues that he alleged that Tozer and American Dawn tortiously 

interfered with Feldman’s relationship with ALSCO, but we disagree. Neither 

Tozer nor American Dawn were strangers to Feldman’s relationship with ALSCO. 

Like the employee in Tom’s Amusement, the complaint alleges that Feldman 

developed his relationship with ALSCO during his time as an employee of 

American Dawn. For example, the complaint alleges that “ALSCO was . . . 

Feldman’s biggest client,” “Feldman served as one of [American Dawn]’s leading 

sales persons to ALSCO,” and “[a]n implied . . . contractual relationship between 

. . . Feldman and ALSCO arose through the course of his dealings with ALSCO.”

Case: 16-11663 Date Filed: 03/03/2017 Page: 16 of 20 
17

Feldman argues that although he sold “to ALSCO as an [American Dawn] 

employee, any relationship he would have with ALSCO as a Baltic employee 

would be independent of his prior status as an [American Dawn] employee.” But 

this argument misconstrues the allegations in the complaint. His relationship with 

ALSCO at Baltic was interwoven with, or derivative of, his time at American 

Dawn. 

Feldman also argues that the complaint states a claim of tortious interference 

against Rasband because Rasband was a stranger to Feldman’s relationship with 

ALSCO, but we decline to decide this argument because Feldman failed to make it

to the district court. We will not consider arguments raised for the first time on 

appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). 

We affirm the dismissal of the claim of tortious interference with a business 

relationship.

We also affirm the dismissal of Feldman’s claim of tortious interference 

with employment against Rasband and Tozer. Feldman failed to preserve his 

argument that Rasband interfered with his employment relationship with Baltic

because he raises it for the first time on appeal. Id. Likewise, he failed to preserve 

his claim of tortious interference with employment against Tozer because he made

his argument that Tozer was a joint tortfeasor with Rasband for the first time in his 

motion for reconsideration. Cf. O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th 

Case: 16-11663 Date Filed: 03/03/2017 Page: 17 of 20 
18

Cir. 1992) (“Motions to amend should not be used to raise arguments which could, 

and should, have been made before the judgment was issued.”). 

Finally, we affirm the dismissal of the claim of civil conspiracy against

Tozer and Rasband. The district court ruled, and we agree, that the claim of civil 

conspiracy necessarily fails because the complaint fails to allege underlying claims 

of tortious interference. “Absent [an] underlying tort, there can be no liability for 

civil conspiracy.” Best Jewelry Mfg. Co. v. Reed Elsevier Inc., 780 S.E.2d 689, 697 

(Ga. Ct. App. 2015) (citation omitted). 

D. The Complaint Fails to State Claims of Negligent Misrepresentation and Fraud.

The district court correctly dismissed Feldman’s claims of negligent 

misrepresentation and fraud predicated on Tozer’s allegedly false promise that 

American Dawn would pay Feldman severance. Feldman has abandoned his claim

of negligent misrepresentation because, apart from one passing reference to the 

claim in his opening brief, the issue “has not been briefed before the court.” Access 

Now, 385 F.3d at 1330. And we agree with the district court that the complaint 

fails to state a claim of fraud. 

“Fraud cannot be predicated upon statements which are promissory in their 

nature as to future acts,” Alston v. Brown Transp. Corp., 356 S.E.2d 517, 518 (Ga. 

Ct. App. 1987) (citation omitted), unless “there [was] a present intention not to 

perform or a present knowledge that the future event will not occur,” Taylor v. 

Case: 16-11663 Date Filed: 03/03/2017 Page: 18 of 20 
19

Amisub, Inc., 368 S.E.2d 791, 793 (Ga. Ct. App. 1988) (citations omitted). But, 

this exception does not apply where the “promises upon which the []appellant[] 

rel[ies] . . . were unenforceable [as a contract] even absent any fraud at the time of 

their utterance.” Id. (citation omitted). Feldman’s complaint fails to allege that 

Tozer or American Dawn “promised to pay [him] any determinable sum as 

severance pay,” and “[b]ecause price is an essential element of a valid contract,” 

McLane v. Atlanta Mkt. Ctr. Mgmt. Co., 486 S.E.2d 30, 35–36 (Ga. Ct. App. 

1997), rev’d on other grounds, 503 S.E.2d 278 (Ga. 1998), the complaint fails to 

state a claim of fraud. See Amisub, 368 S.E.2d at 793. 

The decisions that Feldman argues compel reversal are distinguishable. Sims 

v. Bayside Capital, Inc. involved a promise to pay severance that was significantly 

more detailed than the alleged promise made by Tozer. 755 S.E.2d 520, 523 (Ga. 

Ct. App. 2014) (explaining that the promise to pay severance included “six months 

of his salary as severance, . . . health insurance coverage through the end of 2011, 

and a payment of $175,000 as reimbursement for legal fees.”). Likewise, the 

promise to pay severance in Vernon v. Assurance Forensic Accounting, LLC was 

in writing and industry custom supported finding an enforceable severance 

contract. 774 S.E.2d 197, 205–06 (Ga. Ct. App. 2015). We affirm the dismissal of 

Feldman’s claims of negligent misrepresentation and fraud.

Case: 16-11663 Date Filed: 03/03/2017 Page: 19 of 20 
20

IV. CONCLUSION

We AFFIRM the dismissal of Feldman’s complaint.

Case: 16-11663 Date Filed: 03/03/2017 Page: 20 of 20