Andrew Feldman v. American Dawn, Inc., et al

Filing

Opinion issued by court as to Appellant Andrew Feldman. Decision: Affirmed. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[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.

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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
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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
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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
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“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.
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§ 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,
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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.
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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
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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.
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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
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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
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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
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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.

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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
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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
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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.”
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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
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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.
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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.

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IV.

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CONCLUSION

We AFFIRM the dismissal of Feldman’s complaint.

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