           Case: 11-11618   Date Filed: 08/14/2012   Page: 1 of 40

                                                                     [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 11-11618 & 11-11650
                      ________________________

                  D. C. Docket No. 1:09-cv-003110-CAP

HEMISPHERX BIOPHARMA, INC., a Delaware corporation,

                                  Plaintiff - Counter-Defendant - Appellee -
                                  Cross-Appellant,


                                  versus

MID-SOUTH CAPITAL, INC., a South Carolina Corporation,

                                  Defendant - Counter Claimant - Appellant -
                                  Cross-Appellee,


ADAM CABIBI, ROBERT ROSENSTEIN, Individually,

                                  Defendants - Cross-Appellees,

THE SAGE GROUP, INC.,

                                  Counter Defendant - Cross-Appellee.
               Case: 11-11618       Date Filed: 08/14/2012     Page: 2 of 40

                              ________________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                            ________________________
                                  (August 14, 2012)

Before MARTIN, HILL and EBEL,* Circuit Judges.

EBEL, Circuit Judge:

       During an eight-month period, Plaintiff and Counterclaim-Defendant

Hemispherx Biopharma, Inc. (“Hemispherx”) hired three different investment

brokers to raise capital for it. Hemispherx hired the first two brokers at a time

when it was difficult to sell Hemispherx’s stock. Months later, when market

forces made Hemispherx’s stock much more attractive, Hemispherx hired a third

broker, a heavy hitter in the industry, which was able very quickly to raise $31

million in capital for Hemispherx through stock sales.

       All three brokers focused their capital-raising efforts on several of the same

prospective investors and, when several of those investors eventually purchased

Hemispherx stock, a dispute predictably arose as to which of the three brokers was

entitled to a commission on the stock sales. In this diversity action, governed by

Georgia law, the first investment broker Hemispherx hired, Defendant and


       *
        Honorable David M. Ebel, United States Circuit Judge for the United States Court of
Appeals for the Tenth Circuit, sitting by designation.

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Counterclaimant Mid-South Capital, Inc. (“Mid-South”), seeks to recover a

commission for its efforts in identifying those investors and introducing them to

Hemispherx. Hemispherx contends, instead, that Mid-South and its employees,

Defendants Robert Rosenstein and Adam Cabibi, tortiously interfered with

Hemispherx’s business relationship with its investors and with the third

investment broker who ultimately closed the stock deals at issue here. The district

court denied each party relief, granting judgment on the pleadings to Hemispherx

on Mid-South’s breach-of-contract claim, and summary judgment to Hemispherx

on Mid-South’s remaining claims and to Mid-South on Hemispherx’s intentional

interference with business relationships claim. Having jurisdiction under 28

U.S.C. § 1291, we AFFIRM the district court’s decision in part, REVERSE in

part, and REMAND this case to the district court for further proceedings.

                               I. BACKGROUND

A. The business relationship between Mid-South and Hemispherx

      Hemispherx is a publicly-traded company researching and developing

treatments for viral diseases and cancers. In August 2008, Hemispherx needed to

raise between $4 and $6 million in capital. To that end, Hemispherx’s chief

executive officer (“CEO”), William Carter, M.D., met with Robert Rosenstein,

who had previously succeeded in raising capital for Hemispherx. Rosenstein


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worked for Mid-South.

      During their discussions, Carter and Rosenstein strategized that, because

Hemispherx’s stock was not trading well at that time, Hemispherx would probably

have to raise capital through a loan arrangement, secured by all of Hemispherx’s

assets except its intellectual property and repayable in either cash or Hemispherx

stock, at the lender’s option—a secured convertible debenture. In order to pitch

such an investment opportunity to prospective investors, Rosenstein asked Carter

to send him information about Hemispherx and particularly about its assets.

Before sending Mid-South this information, however, Hemispherx asked for a

copy of Mid-South’s Engagement Letter. Rosenstein sent Hemispherx Mid-

South’s standard Engagement Letter in September 2008.

      As the parties had previously discussed, the Engagement Letter discounted

Mid-South’s usual brokerage fee because Hemispherx was a previous customer of

Rosenstein. Therefore, the Engagement Letter stated that Hemispherx would pay

Mid-South cash in an amount equal to 5% of the capital raised from investors that

Mid-South identified or introduced to Hemispherx. Further, Hemispherx would

give Mid-South stock warrants—the right to buy Hemispherx stock at a set price

exercisable, in this case, within five years of issuance—in an amount equal to 5%

of the stock issued as part of the capital-raising transaction. The Engagement


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Letter additionally provided that Mid-South would act as Hemispherx’s broker on

a non-exclusive basis and that either party could terminate the agreement with

thirty days’ written notice to the other party. But even after the agreement

terminated, Hemispherx would be obligated to pay Mid-South a commission for at

least another two years on any transactions involving investors Mid-South had

identified or introduced to Hemispherx during the term of the agreement. These

terms were similar to engagement agreements used by other investment brokers.

      Although Hemispherx had requested the Engagement Letter, no one ever

signed the Letter on Hemispherx’s behalf. Once Hemispherx received the Mid-

South Engagement Letter, however, in September 2008, Dr. Carter authorized

Rosenstein to begin seeking investors for Hemispherx. To facilitate Rosenstein’s

efforts, Hemispherx sent him a list of its assets, as well as other information

Rosenstein needed to pitch the opportunity to invest in Hemispherx to potential

investors. Rosenstein, aided by another Mid-South employee, Adam Cabibi, then

contacted a number of potential investors and began putting together several

proposed deals to present to Hemispherx.

      The primary dispute in this litigation, discussed at length below, is the legal

status of the business relationship between Hemispherx and Mid-South. Briefly

summarized here, the parties’ positions regarding that relationship are these: Mid-


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South contends that, even though no one at Hemispherx ever signed the

Engagement Letter, Hemispherx, by its conduct, assented to the terms of that

agreement, or at least led Mid-South to believe Hemispherx had agreed to the

terms of the Engagement Letter. Hemispherx claims, instead, that it rejected the

terms of the Engagement Letter by not signing the agreement, although

Hemispherx apparently never voiced any disagreement to Mid-South. Hemispherx

contends that the parties had an “ad hoc arrangement” by which Hemispherx

agreed to pay Mid-South an unspecified commission, but only if Mid-South itself

closed an investment deal.

B. Mid-South pursues an investment deal involving Gemini Strategies LLC

      To complicate matters further, on November 19, 2008, Dr. Carter sent Mid-

South a letter indicating that Hemispherx would pay Mid-South “a fee from a

financing which . . . is completed within the next 3 months” involving “any” of

five investors listed in the letter. (Doc. 127-11 at 4.) One of the listed investors

was Gemini Strategies LLC (“Gemini”). On November 25, 2008, Mid-South

submitted to Hemispherx an investment proposal from Gemini indicating that it

was willing to contribute $1 million dollars toward a $6.5 million loan-type

arrangement with Hemispherx. Mid-South then proceeded to negotiate with

another potential investor, Hudson Bay, to “fill out” Gemini’s proposed


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transaction. (Docs. 119 ¶ 5; 125-12 ¶ 5; 127-12 ¶ 14.) Mid-South, however, was

ultimately not able to close this, or any other, deal with any of the investors Dr.

Carter specified in his November 2008 letter.

C. Hemispherx hires a second investment broker, Cato Capital

      Unbeknownst to Mid-South, on the same day that Dr. Carter sent his letter

to Mid-South promising to pay Mid-South a fee for any “financing . . . completed

within the next 3 months” involving any of five specified investors (Doc. 127-11

at 4), Hemispherx also engaged a second investment broker, Cato Capital

(“Cato”), to seek capital on Hemispherx’s behalf. Over the next few months, Cato

and Mid-South sought capital on Hemispherx’s behalf from some of the same

potential investors. In December 2008 and January 2009, Hemispherx, through its

investment advisor, Counterclaim- Defendant The Sage Group (“Sage”), and

Sage’s executive director Wayne Pambianchi, told Mid-South that Hemispherx

was “considering” retaining a second investment broker, and suggested ways to

calculate the commission, should one of the potential investors that had been

contacted by both brokers invest in Hemispherx. (Docs. 127-13 ¶ 16; 134-1 ¶ 16.)

Neither Cato nor Mid-South agreed to Pambianchi’s proposals, and the issue was

dropped. Each broker continued its own efforts to raise capital for Hemispherx.

D. Mid-South pursues an investment deal with Hudson Bay


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      Although prospective investor Hudson Bay had initially proposed

completing Gemini’s proposed deal, in the spring of 2009 Hudson Bay suggested

instead that it finance its own deal with Hemispherx. Before negotiations began

on this proposal, Hemispherx’s attorney drafted a confidentiality agreement which

representatives of Hemispherx, Hudson Bay and Mid-South signed. Hemispherx

also paid for Hudson Bay to obtain an appraisal of Hemispherx’s assets. Then,

over the next few months, Hemispherx and Hudson Bay, facilitated by Mid-South,

continued negotiations for a loan-type transaction. These negotiations resulted in

Hemispherx sending Hudson Bay a proposal on April 7, 2009. Hudson Bay

countered with its own proposal on April 14, 2009, which Hemispherx found

unacceptable.

E. Hemispherx’s fortune turns

      During the last week of April 2009, Hemispherx’s fortunes turned for the

better. An influenza outbreak caused heavy trading in Hemispherx’s stock

because Hemispherx had a potentially useful vaccine, increasing Hemispherx’s

stock price and making the stock much more attractive to investors. On April 27,

2009, Dr. Carter instructed Mid-South’s Cabibi to inform Hudson Bay that

Hemispherx wanted to start over with a new proposal from Hudson Bay, if Hudson

Bay was still interested in investing in Hemispherx. The deal Dr. Carter proposed


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involved Hudson Bay both making Hemispherx a $3 million loan and purchasing

$1 million in Hemispherx’s stock. Cabibi conveyed this offer to Hudson Bay.

      At the same time, in late April, Mid-South solicited a term sheet from

Tailwind, an investment consortium. Hemispherx authorized Mid-South to obtain

a commitment from Tailwind to purchase $1 million in Hemispherx’s stock.

During Mid-South’s negotiations with Tailwind, two other potential investors with

which Mid-South had previously negotiated, Cranshire and Iroquois, stepped in

and offered to buy $1 million of Hemispherx stock. Mid-South also conveyed

Cranshire’s and Iroquois’s offers to Hemispherx.

F. Hemispherx engages a third investment broker, Rodman and Renshaw

      As the price of Hemispherx’s stock continued to rise, a third investment

broker, Rodman and Renshaw LLC (“Rodman”), approached Hemispherx,

suggesting this would be an opportune time for Hemispherx to raise capital by

selling its stock. Rodman, which was a heavy hitter in the realm of biotechnology

investment, offered to broker these stock sales for Hemispherx.

      Once Rodman approached Hemispherx about brokering the sale of

Hemispherx stock, Dr. Carter, in early May, contacted Mid-South’s Cabibi. The

parties dispute the exact message Carter conveyed to Cabibi. Mid-South contends

that Carter told Cabibi that Hemispherx was “temporarily suspend[ing]” Mid-


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South’s capital-raising activities and that Hemispherx was instead seeking a

“strategic investor” who would provide funding resulting in a deal that would be

“non-dilutive” to its current shareholders. (Docs. 124-3; 127-13 ¶ 25.) Mid-South

understood that to mean that Hemispherx was negotiating a partnership with

another pharmaceutical company which would not require Hemispherx to sell any

of its stock to private investors. Hemispherx, on the other hand, asserts that Dr.

Carter informed Cabibi that Mid-South was fired because it had been ineffectual in

raising capital for Hemispherx, and thus Mid-South should no longer seek capital

on Hemispherx’s behalf or otherwise act as its agent. Regardless of the message

conveyed, Mid-South, by no later than May 4, 2009, ceased its efforts to raise

capital for Hemispherx.

      Hudson Bay, nevertheless, contacted Mid-South on May 8, proposing to

buy $5 million in Hemispherx stock. Mid-South immediately notified Hemispherx

of this offer. Also on May 8, Iroquois contacted Mid-South, seeking to increase

its proposed purchase of Hemispherx stock from $1 to $3 million. Mid-South

passed this offer along to Hemispherx, too, that same day.

      Unbeknownst to Mid-South, however, Hemispherx was negotiating to retain

Rodman and, on Sunday, May 10, Hemispherx signed an engagement letter

making Rodman its exclusive investment broker for thirty days. The next day,


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May 11, Rodman closed a sale of Hemispherx stock to Hudson Bay and one other

investor, each paying $7.5 million. Within the next week, Rodman closed another

deal for the sale of Hemispherx stock to Cranshire and Iroquois. These stock

purchases raised a total of $31 million in capital for Hemispherx.

   II. SUMMARY OF THE PARTIES’ CLAIMS AND THIS DECISION

      Less than one month after Rodman brokered these stock deals, Hemispherx

sued Mid-South and its employees, Rosenstein and Cabibi. Hemispherx alleged

these defendants tortiously interfered with Hemispherx’s business relationship

with potential investors and with Rodman when, after Hemispherx had suspended

Mid-South’s capital-raising efforts, Mid-South nevertheless passed along to

Hemispherx the interest Hudson Bay, Cranshire, and Iroquois expressed in

purchasing Hemispherx stock.

      Mid-South, in turn, asserted four counterclaims against Hemispherx,

seeking payment for its efforts in identifying and cultivating the investment of

Hudson Bay, Cranshire, and Iroquois in Hemispherx. Specifically, Mid-South

alleged counterclaims for breach of contract, promissory estoppel, quantum

meruit, and unjust enrichment. In addition, Mid-South alleged a fifth

counterclaim, against both Hemispherx and Hemispherx’s investment advisor

Sage, alleging fraud.


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      These claims are governed by Georgia law. In applying Georgia law, we

endeavor here to decide the case the way the Georgia Supreme Court would. See

Three Palms Pointe, Inc. v. State Farm Fire & Cas. Co., 362 F.3d 1317, 1318 (11th

Cir. 2004) (per curiam); see also Ernie Haier Ford, Inc. v. Ford Motor Co., 260

F.3d 1285, 1290 (11th Cir. 2001).

      At the outset of this litigation, the district court granted Hemispherx

judgment on the pleadings as to Mid-South’s breach-of-contract counterclaim.

See Fed. R. Civ. P. 12(c). In doing so, the district court concluded that Mid-

South’s allegations that Hemispherx breached the Engagement Letter failed, as a

matter of law, because Georgia’s statute of frauds prevented Mid-South from

enforcing the unsigned letter agreement against Hemispherx. Reviewing this

decision de novo, accepting as true the facts alleged, and viewing those facts in the

light most favorable to Mid-South, see Abdur-Rahman v. Walker, 567 F.3d 1278,

1280-81 (11th Cir. 2009), we reverse because Mid-South’s allegations implicate

an exception to the statute of frauds applicable when one party has performed

under the unsigned contract and the other party has accepted that performance.

      After the parties completed discovery, the district court next entered

summary judgment in favor of Hemispherx and Sage on all of Mid-South’s

counterclaims. Summary judgment is appropriate only “if the movant shows that


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there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review the summary

judgment decision de novo, viewing the record in the light most favorable to the

non-moving party. See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d

1292, 1314 (11th Cir. 2011).

      Because we conclude that there remain disputed issues of material fact that

a jury must resolve as to the business relationship between Mid-South and

Hemispherx, we reverse summary judgment for Hemispherx on three of Mid-

South’s claims seeking to recover a commission under the equitable theories of

promissory estoppel, quantum meruit, and unjust enrichment. But we affirm

summary judgment for Hemispherx and Sage on Mid-South’s fraud claims, which

fail for several reasons.

      Lastly, we affirm the district court’s decision to grant Mid-South summary

judgment on Hemispherx’s claim that Mid-South tortiously interfered with

Hemispherx’s business relationships. Hemispherx failed to produce any evidence

indicating that Mid-South was acting with malice and with an intent to injure

Hemispherx when, after Hemispherx terminated Mid-South’s efforts to raise

capital, Mid-South nonetheless conveyed to Hemispherx the interest Hudson Bay,

Cranshire, and Iroquois had expressed in purchasing Hemispherx stock.


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       Below, we explain in greater detail the reasons for our decision. Because

Mid-South’s counterclaims drive this litigation, we consider them first.

            III. MID-SOUTH’S BREACH-OF-CONTRACT CLAIM

       Mid-South alleged that Hemispherx, by its conduct, agreed to the terms of

the unsigned Engagement Letter, and then breached that agreement by failing to

pay Mid-South a commission according to the agreement’s terms. The district

court granted Hemispherx judgment on the pleadings on this claim. Hemispherx

contends, on appeal, that Mid-South’s allegations failed as a matter of law because

they 1) failed adequately to state a claim that Hemispherx, by its conduct, assented

to the terms of the Engagement Letter, and 2) even if Hemispherx was alleged to

have assented to the Engagement Letter, that unsigned agreement was

unenforceable against Hemispherx under the Georgia statute of frauds.1 We

disagree with both contentions.

A. Mid-South adequately pled that Hemispherx assented, by its conduct, to
the Engagement Letter’s terms

       Under Georgia law, a party’s conduct may bind him to the terms of a

contract, even if he does not sign the agreement. See Comvest, L.L.C. v.


       1
         The district court ruled only on the second argument, holding that the statute of frauds
prevented Mid-South from enforcing the unsigned Engagement Letter against Hemispherx. But
the panel must address both of Hemispherx’s arguments before the Court remands this claim to
the district court.

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Corporate Secs. Grp. Inc., 507 S.E.2d 21, 24-25 (Ga. Ct. App. 1998). Mid-South’s

allegations that that occurred here—that Hemispherx assented, by its conduct, to

the terms of the Engagement Letter—are sufficient to survive Hemispherx’s Rule

12(c) motion. See generally Thompson v. Floyd, 713 S.E.2d 883, 890 (Ga. Ct.

App. 2011) (considering circumstances surrounding the making of a contract in

order to determine if the parties mutually assented to agreement’s essential terms).

      Mid-South alleged the following: Mid-South’s Rosenstein and

Hemispherx’s CEO, Dr. Carter, had preliminary discussions about Rosenstein

raising capital for Hemispherx. Before Hemispherx authorized Rosenstein to

begin soliciting potential investors, however, Hemispherx requested a copy of

Mid-South’s Engagement Letter. Only after Rosenstein sent Hemispherx the

Engagement Letter did Dr. Carter authorize Mid-South to seek investors for

Hemispherx. And only after receiving a copy of the Engagement Letter did

Hemispherx provide Mid-South with the information about Hemispherx that

Rosenstein needed to seek potential investors. Throughout the ensuing eight

months, Hemispherx then actively participated in Mid-South’s attempts to broker a

deal with several potential investors.

      These allegations, only briefly summarized here, are sufficient to state a

plausible claim that Hemispherx assented, by its conduct, to the terms of the


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unsigned Mid-South Engagement Letter.

B. The statute of frauds does not foreclose enforcing the unsigned
Engagement Letter against Hemispherx

      Hemispherx further argues that even if it assented to the terms of the

Engagement Letter, the statute of frauds bars Mid-South from enforcing that

unsigned agreement against Hemispherx. Georgia’s statute of frauds requires, in

pertinent part, that “[a]ny agreement that is not to be performed within one year

from [its] making” must be in writing and signed by the party against whom the

agreement is to be enforced. Ga. Code Ann. § 13-5-30(5). This statute applies

here because the Engagement Letter, by its terms, could not be performed within

one year. Instead, that agreement obligated Hemispherx to pay a commission on

any investment deal, occurring at least two years after the termination of the letter

agreement, if the deal involved investors Mid-South had identified or introduced

to Hemispherx during the term of the agreement.2 See Fowler v. Essex Co., 347

      2
          Specifically, this provision stated:

              Notwithstanding any termination of this Engagement Letter pursuant to the
      terms hereof or otherwise, the obligation to pay the Fees and Compensation described
      in Section 2 shall survive any termination or expiration of the Agreement. It is
      expressly understood and agreed by the parties hereto that any private financing of
      equity or debt or other capital raising activity of [Hemispherx] within twenty four
      (24) months of the termination or expiration of the Agreement, with any investors or
      lenders to whom [Hemispherx] was Identified or Introduced by [Mid-South] while
      the Agreement was in effect and disclosed to [Hemispherx] in writing, shall result
      in such fees and compensation due and payable by [Hemispherx] to [Mid-South]
      under the same terms of Section 2 above. Upon completion of the Offering, any

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S.E.2d 348, 349 (Ga. Ct. App. 1986) (holding that “[w]here the time within the

contract to be performed depends on some contingency,” the contract still falls

within § 13-5-30(5) “provided[] the contingency cannot happen within the year”)

(quotation marks omitted).

       Nevertheless, Georgia law recognizes an exception to the statute of frauds

“where there has been performance on one side, accepted by the other in

accordance with the contract.” Ga. Code Ann. §13-5-31(2). Enforcing an

unsigned agreement under this exception is premised on estoppel principles. See

Nowell v. Mayor & Council of Monroe, 171 S.E. 136, 139 (Ga. 1933). The party

seeking to enforce an unsigned agreement under this exception, therefore, must

show “mutuality of action”; that is, that it performed one or more acts pursuant to

and in furtherance of the contract sought to be enforced, and the other party

accepted that performance pursuant to the agreement. See id. The act performed

must be consistent with the existence of a contract, inconsistent with the lack of a



       future renegotiation, restructuring, revision or other amendment of such Offering by
       and between [Hemispherx] and the investors in such Offering which results in the
       receipt of any net new funds or commitment with respect thereto by [Hemispherx]
       from such investor(s) within twenty four (24) months of the completion of the
       Offering shall be deemed to be a new financing and shall result in additional fees and
       compensation due and payable by [Hemispherx] to [Mid-South] under the terms of
       Section 2 above.

(Doc. 49-2 at 5 ¶ 2(d).)

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contract, and essential to the contract, such that it resulted in both a loss or injury

to the party seeking to enforce the unsigned contract and a benefit to the other

party. See Hudson v. Venture Indus., Inc., 252 S.E.2d 606, 608 (Ga. 1979);

Golden v. Nat’l Serv. Indus., 435 S.E.2d 270, 271 (Ga. Ct. App. 1993). The

question of whether there has been part performance sufficient to warrant

application of this exception to the statute of frauds is generally one for the jury.

See Hathaway v. Bishop, 449 S.E.2d 318, 320 (Ga. Ct. App. 1994).

      Accepting Mid-South’s allegations as true, the circumstances presented here

fall within this exception to the statute of frauds. The Engagement Letter provided

that Hemispherx was engaging Mid-South to act as its broker to solicit investors

for Hemispherx. After requesting and receiving the Engagement Letter,

Hemispherx formally authorized Mid-South to begin seeking such investors. The

Engagement Letter provided that, to facilitate its efforts in soliciting investors,

Hemispherx would provide Mid-South with accurate information about its

business and financial condition, and Mid-South would keep this information

confidential except as needed to solicit investors. After receiving the Engagement

Letter, Hemispherx provided Mid-South with the information it requested. The

Engagement Letter provided that Hemispherx would pay Mid-South a fee for

investments in Hemispherx from investors that Mid-South identified or introduced


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to Hemispherx. After sending Hemispherx the Engagement Letter, and after

Hemispherx authorized it to do so, Mid-South undertook efforts to identify

potential investors for Hemispherx, present investment proposals to Hemispherx,

and facilitate negotiations between the potential investors and Hemispherx.

Hemispherx, in turn, considered the proposals Mid-South presented to it, actively

participated in negotiations Mid-South arranged with these potential investors, and

paid for an appraisal of its assets requested by one of the identified potential

investors. These allegations, accepted as true, establish that Mid-South performed

according to the terms of the Engagement Letter, and that Hemispherx accepted

that performance, sufficient to invoke the relevant exception to the statute of

frauds.

      The district court, in ruling to the contrary, concluded instead that “[t]he

actions that MidSouth took, such as compiling a list of investors and discussing

the Hemispherx investment opportunity with approximately forty investors, were

basic steps that any sales broker would take with or without a contract.” (Doc. 91

at 6.) But here our review is limited to Mid-South’s allegations, which do not

address the basic steps any sales broker would take, with or without a contract.

Furthermore, Mid-South sufficiently alleged that it did much more than simply

compile a list of potential investors and talk to them about investing in


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Hemispherx.

      For these reasons, the district court erred in granting Hemispherx judgment

on the pleadings on Mid-South’s breach-of-contract claim.

    IV. MID-SOUTH’S EQUITABLE CLAIMS FOR RECOVERING A
                        COMMISSION

      Where a party cannot recover under a contract, Georgia law provides

alternative equitable theories of recovery, including promissory estoppel, quantum

meruit and unjust enrichment. See Goldstein v. Home Depot U.S.A., Inc., 609

F. Supp. 2d 1340, 1347 (N.D. Ga. 2009). Mid-South invokes each of these

equitable theories here as alternative means for recovering a commission from

Hemispherx. See id. (recognizing party can plead such equitable claims in the

alternative to a breach-of-contract claim where at least one party contests the

existence of a contract); see also Am. Casual Dining, L.P. v. Moe’s Sw. Grill,

L.L.C., 426 F. Supp. 2d 1356, 1371 (N.D. Ga. 2006). Although at trial Mid-South

cannot recover against Hemispherx under both its legal (breach-of-contract) and

its equitable claims, Mid-South can plead these claims in the alternative and then

elect at trial under which remedy it wants to proceed. See McBride v. Life Ins.

Co. of Va., 190 F. Supp. 2d 1366, 1378 (M.D. Ga. 2002) (applying Georgia law).

The district court granted Hemispherx summary judgment on each of these three

equitable claims.
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A. Promissory estoppel

       Mid-South’s unsigned Engagement Letter provided that Hemispherx would

pay Mid-South a commission for “any investors Identified or Introduced” by Mid-

South, directly or indirectly, regardless of who closed the deal involving these

investors. (Doc. 49-2 at 4-5 ¶ 2(a).3) Mid-South asserts that, even if it is unable to

convince a jury that it had a binding contract with Hemispherx, in the form of the

unsigned Engagement Letter, Mid-South could still enforce the terms of that

agreement against Hemispherx under a promissory estoppel theory. Hemispherx


       3
        More specifically, this provision provided, in pertinent part, the following:

       As compensation for services rendered and to be rendered hereunder by [Mid-South],
       [Hemispherx] agrees to pay [Mid-South] as follows:

               An amount in cash equal to:

                1) Five percent (5%) of the principal amount Sold to any investors Identified
       or Introduced by [Mid-South], with all such sums payable at the time of each closing
       (a “Closing”) of the Placement (“Placement Fee”); . . . . Identified or Introduced
       includes direct and indirect introductions by [Mid-South] or its agents and
       representations including, without limitation, where a party introduced to
       [Hemispherx] introduces another party to [Hemispherx] who then purchases the
       securities sold pursuant to the Offering or introduces another investor who purchases
       securities in the Offering, and so on. For greater clarity, in the event of a dispute as
       to whether [Mid-South] Identified or Introduced an investor to [Hemispherx] in
       connection with the Offering, the following question shall be answered: But for the
       acts of [Mid-South], would the sale of the securities in the Offering have taken place?
       If the answer to that question is “No”, then [Mid-South] shall be deemed to have
       Identified or Introduced that purchaser for purposes of earning the Placement Fee.
       The preceding test is not the exclusive test for determining whether the Placement
       fee is earned by [Mid-South] but is only an example.

(Doc. 49-2 § 2(a); see also id. at 5 § 2(b) (providing for stock warrants as further compensation).)

                                                 21
             Case: 11-11618     Date Filed: 08/14/2012    Page: 22 of 40

asserts that Mid-South’s promissory estoppel claim fails for two reasons: 1) there

is no evidence from which a jury could find that Hemispherx promised to pay

Mid-South a commission according to the terms of the unsigned Engagement

Letter and, 2) even if Hemispherx did make such a promise, it was unreasonable

for Mid-South to rely on such a substantial promise which was never reduced to a

signed writing. We reject both of Hemispherx’s contentions.

      1. A jury could find that Hemispherx promised to pay Mid-South a
      commission according to the terms of the Engagement Letter

      For its promissory estoppel claim to survive summary judgment, Mid-South

first had to establish at least a genuine factual dispute as to whether Hemispherx

promised to pay Mid-South a commission pursuant to the terms of the Engagement

Letter. See Ga. Code Ann. § 13-3-44(a). “A promise is a manifestation of an

intention to act or refrain from acting in a specified way, so made as to justify a

promisee understanding that a commitment has been made.” DPLM, Ltd. v. J.H.

Harvey Co., 526 S.E.2d 409, 412 (Ga. Ct. App. 1999) (internal quotation marks

omitted; citing Georgia precedent quoting Restatement (Second) of Contracts,

§ 2(1).) A party’s conduct can result in a promise. See id. Whether a party made

a promise in a given case is generally a question of fact for the jury. See Jones v.

White, 717 S.E.2d 322, 329 (Ga. Ct. App. 2011). As previously discussed, Mid-

South sufficiently alleged that Hemispherx promised, by its conduct, to be bound
                                          22
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by the terms of Mid-South’s Engagement Letter. See supra Section III(A). And,

viewing the summary judgment evidence in the light most favorable to Mid-South,

a jury could find those allegations to be true. Moreover, there is evidence, viewed

in the light most favorable to Mid-South, that indicated that, during their

preliminary talks, Mid-South’s Rosenstein and Hemispherx’s Carter discussed

Mid-South’s compensation as it was set forth in the Engagement Letter, and Carter

agreed to pay Mid-South accordingly. Thus, a jury could find, based on the

circumstances surrounding the parties’ relationship, that Hemispherx promised to

pay Mid-South according to the terms of the unsigned Engagement Letter.

      2. A jury could find that Mid-South reasonably relied on Hemispherx’s
      promise

      Mid-South must also show that it reasonably relied on Hemispherx’s

promise to pay Mid-South a commission according to the terms of the Engagement

Letter. See Ga. Code Ann. § 13-3-44(a); see also Griffin v. State Bank of

Cochran, 718 S.E.2d 35, 42 (Ga. Ct. App. 2011). Generally, the issue of a party’s

reasonable reliance is also a question of fact for the jury. See Jones, 717 S.E.2d at

329. That is true here, where Mid-South’s evidence creates at least a triable issue

as to whether its reliance on Hemispherx’s promise was reasonable.

      In concluding, instead, that Mid-South’s reliance was, as a matter of law,

unreasonable, the district court determined that the circumstances presented here
                                         23
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were analogous to those addressed by this court in Johnson v. University Health

Services, Inc., 161 F.3d 1334 (11th Cir. 1998). But Johnson is distinguishable.

      In Johnson, this court applied Georgia law to a promissory estoppel claim

asserted by an obstetrician, Dr. Cherie Johnson, who practiced at an Augusta,

Georgia, Hospital. Id. at 1336. According to Dr. Johnson, the hospital, through a

series of phone calls between Dr. Johnson and several hospital officials, offered to

contribute over $1 million to help finance Dr. Johnson’s practice outside the

hospital. Id. at 1337. We first rejected Dr. Johnson’s breach-of-contract claim

because the alleged oral agreement violated the statute of frauds. Id. at 1339-40.

      Turning to Dr. Johnson’s promissory estoppel claim, this court held the

statute of frauds did not preclude that equitable claim. Id. at 1340. Nonetheless,

we upheld the entry of summary judgment for the hospital on Dr. Johnson’s

promissory estoppel claim. This court recognized that “[p]romises that do not

conform to the statute of frauds . . . will often be equally unenforceable under a

promissory estoppel theory [because] [p]romissory estoppel requires that reliance

on the promise be reasonable. [And] [i]t is usually unreasonable to rely on a

substantial promise that has not been reduced to writing.” Id. at 1340-41 (citation

omitted). This court then applied that rule in Johnson, where the doctor based her

claims that the hospital “offered her a complex, multi-faceted aid package worth


                                         24
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over $1 million . . . solely on a series of telephone conversations [she had] with

low-ranking [hospital] officials.” Id. at 1341.

      In light of the size of the aid package, the limited authority of the
      persons with whom Dr. Johnson was speaking, and the somewhat
      ambiguous nature of their conversations, it would have been patently
      unreasonable for Dr. Johnson to act in reliance on the series of oral
      representations that she claims constituted a promise of financial
      assistance.

Id. at 1341; see also Reindel v. Mobile Content Network Co., 652 F. Supp. 2d

1278, 1291 (N.D. Ga. 2009) (applying Johnson to reject promissory estoppel claim

based on the “extraordinary” verbal promise to pay 5% of company’s stock).

      The circumstances presented in Johnson, however, are distinguishable from

those presented in this case, viewed in the light most favorable to Mid-South.

First, while the doctor in Johnson relied on telephone conversations she had with

“low-ranking [hospital] officials,” 161 F.3d at 1341, Mid-South was instead

relying on promises made primarily by Hemispherx’s CEO, Dr. Carter. Second,

although the amount of fees Mid-South seeks to recover is substantial, those fees

are based upon a customary percentage used in the investment banking industry to

calculate fees. The terms of the agreements Hemispherx signed with the other two

investment brokers bear this out. Third, there was testimony from one of

Rodman’s employees that it was commonplace in the investment industry for

parties to agree upon the terms included in an engagement agreement, but not to

                                         25
             Case: 11-11618     Date Filed: 08/14/2012    Page: 26 of 40

sign that agreement until the investment deal was closed. In fact, Hemispherx

followed a similar course of dealing when Rosenstein previously raised capital for

it in 2003. At that time, Hemispherx signed a one-page agreement when it hired

Rosenstein and then signed a full engagement letter at the time the deal closed.

Further, Dr. Carter testified at his deposition that he generally did not sign a fee

agreement until he knew the terms of the investment deal to be closed. Viewing

this evidence in the light most favorable to Mid-South, these facts distinguish this

case from Johnson and would support a jury finding here that Mid-South

reasonably relied on Hemispherx’s promise to pay Mid-South a commission

according to the terms of the unsigned Engagement Letter.

      3. Conclusion as to Mid-South’s promissory estoppel claim

      Because there remain disputed issues of material fact that a jury must

resolve, regarding whether Hemispherx promised to pay Mid-South according to

the terms of the unsigned Engagement Letter and whether Mid-South reasonably

relied on that promise, we reverse summary judgment for Hemispherx on Mid-

South’s promissory estoppel claim.

B. Quantum meruit and unjust enrichment

      Mid-South also seeks to recover a commission from Hemispherx under the

equitable theories of quantum meruit and unjust enrichment. These related


                                          26
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equitable theories permit a party who cannot recover under a contract,

nevertheless, to receive compensation for performing a valuable service (quantum

meruit) or conferring a benefit on another (unjust enrichment). See Ga. Dep’t of

Cmty. Health v. Data Inquiry, LLC, 722 S.E.2d 403, 407 (Ga. Ct. App. 2012). The

parties agree that, to recover under either theory in this case, Mid-South must

establish, among other things, that it was the “procuring cause” of the May 2009

sales of Hemispherx stock to Hudson Bay, Cranshire, and Iroquois. See Amend v.

485 Properties, 627 S.E.2d 565, 567-68 (Ga. 2006) (quantum meruit). In granting

Hemispherx summary judgment on these claims, the district court concluded that

Mid-South failed to submit evidence from which a jury could find that it was the

procuring cause of these stock sales. We disagree.

      There are two ways that Mid-South can establish that it was the procuring

cause: by showing that 1) at the time Rodman closed the stock sales for

Hemispherx, there were pending negotiations between Mid-South and these

investors, of which Hemispherx was aware; or that 2) Hemispherx interfered with

Mid-South’s efforts to close an investment deal for Hemispherx involving these

investors. See Centre Pointe Invs., Inc. v. Frank M. Darby Co., 549 S.E.2d 435,

438 (Ga. Ct. App. 2001). As to each, there remain disputed issues of fact that a

jury must resolve, precluding summary judgment.


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             Case: 11-11618    Date Filed: 08/14/2012    Page: 28 of 40

      1. Pending negotiations

      “To prove that it was the procuring cause . . . , a broker ordinarily must

show that there were negotiations still pending between the broker and the

prospective [investor] and that [the broker’s client] was aware that negotiations

were still pending at the time [the client] consummated the [investment deal].” Id.

(internal quotation marks omitted). The evidence, viewed in the light most

favorable to Mid-South, showed the following: In late April and early May 2009,

Mid-South was negotiating with Hudson Bay, Cranshire, and Iroquois, on

Hemispherx’s behalf, for investments that included the purchase of Hemispherx

stock. More specifically, at the end of April, Hemispherx proposed selling

$1 million in stock to Hudson Bay. At about the same time, Cranshire and

Iroquois proposed buying $1 million in Hemispherx stock. On May 8, Hudson

Bay proposed buying $5 million in stock. The same day, Cranshire proposed a

stock deal for $3 million. Just three days later, Rodman brokered the sale of

$15 million in stock to Hudson Bay and another investor. A week after that,

Rodman brokered a $16 million stock deal with Cranshire and Iroquois. At the

time Rodman brokered these stock sales, Hemispherx had not rejected the earlier

pending stock offers involving these potential investors which had been brought to

Hemispherx by Mid-South. This evidence is sufficient to create a triable issue as


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                Case: 11-11618   Date Filed: 08/14/2012   Page: 29 of 40

to whether Mid-South was the procuring cause of the May 2009 stock purchases

made by these three investors.

      The district court concluded, to the contrary, that once Hemispherx notified

Mid-South, on May 4, to suspend its capital-raising efforts for Hemispherx, there

were, as a matter of law, no longer any negotiations pending between Mid-South

and these investors. But Mid-South’s evidence was sufficient to create a triable

issue of fact as to whether Hemispherx suspended Mid-South’s efforts to raise

capital in order to replace Mid-South in the negotiations with heavy hitter

Rodman. If so, a jury could find that Mid-South should still be deemed the

procuring agent of the deals closed by Rodman. Cf. Centre Pointe, 549 S.E.2d at

436-39 (holding evidence supported jury’s finding that broker was a procuring

cause for a commercial lease where broker brought landlord and tenant together

and facilitated their negotiations, but tenant terminated broker seven days before

agreeing to the lease, informing only the landlord and not the broker of the

termination).

      This court, applying Florida law, reached a similar conclusion in BKR

Global, LLC v. FourWinds Capital Management, 661 F.3d 1134 (11th Cir. 2011).

In that case, FourWinds entered into a consulting agreement with BKR Global,

“an experienced timber investment consulting firm,” under which BKR agreed to


                                          29
             Case: 11-11618     Date Filed: 08/14/2012    Page: 30 of 40

seek investment opportunities for FourWinds in the timber industry. Id. at 1135-

36. BKR Global then introduced FourWinds to Nemus, and FourWinds and

Nemus began negotiating a deal. Id. at 1136. Soon thereafter FourWinds

terminated its consulting agreement with BKR Global. Id. A few weeks later,

FourWinds and Nemus closed an investment deal. Id. When BKR Global

demanded that FourWinds pay BKR Global a commission for introducing

FourWinds to Nemus, FourWinds refused to pay, stating that its deal with Nemus

was the result of a “cold-call[]” FourWinds had made on its own to Nemus. Id.

      The “central issue” in BKR Global, as defined by the terms of the

consulting contract between FourWinds and BKR Global, was “whether

FourWinds pursued an investment opportunity that [BKR] introduced.” Id. at

1136 (internal quotation marks omitted). Recognizing that the questions of

“whether the investment opportunity pursued by FourWinds is covered by its

agreement with BKR” and “whether a broker is the ‘procuring cause’ of the

ultimate transaction between the two parties” are both questions of fact to be

resolved by a jury, id. at 1137, we held that the evidence “create[d] a triable issue

of fact as to whether the investment opportunity FourWinds pursued with Nemus

was materially different from that presented to it by BKR,” id. at 1136. Georgia

law would support applying the same reasoning here. See Centre Pointe, 549


                                          30
             Case: 11-11618      Date Filed: 08/14/2012   Page: 31 of 40

S.E.2d at 436-39.

      2. Seller’s interference

      The second way that Mid-South can establish that it was the procuring

cause of the May 2009 stock sales is to show that Hemispherx interfered with

Mid-South’s negotiations with Hudson Bay, Cranshire, and Iroquois for the sale of

Hemispherx stock.

      [W]here [the client] knowingly interferes with the negotiations between
      the [investors] and the broker, it becomes unnecessary to show
      negotiations were pending when the [investment deal] was
      consummated. . . . The broker can thus make out a prima facie case by
      showing that negotiations for the [investment] were set on foot through
      [its] efforts, that [the broker] performed every service required by his
      employment which it was possible to perform, and that the failure on
      [its] part to personally consummate the trade was due to the interference
      of [the client].

Id. at 438 (internal quotation marks omitted). “Although a broker does not

establish he was the procuring cause by merely showing he first located the

ultimate [investor], a broker can make out a case if he can show interference by the

[client] and no abandonment of his efforts to effectuate the [investment].”

Perimeter Realty v. GAPI, Inc., 533 S.E.2d 136, 148 (Ga. Ct. App. 2000).

      Again, viewing the evidence in the light most favorable to Mid-South, Mid-

South has established a triable issue of fact as to whether, without Hemispherx’s

interference, Mid-South would have closed the stock deals it was pursuing with


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               Case: 11-11618        Date Filed: 08/14/2012       Page: 32 of 40

Hudson Bay, Cranshire, and Iroquois at the time Hemispherx suspended Mid-

South’s efforts on its behalf and replaced Mid-South with Rodman. See Centre

Pointe, 549 S.E.2d at 438 (holding there was sufficient evidence for the jury to

find that the broker was the procuring cause of a lease where, among other things,

the timing and circumstances of the lease were suspicious, occurring just seven

days after the lessor terminated the broker); Perimeter Realty, 533 S.E.2d at 148

(holding summary judgment was not appropriate were the brokers’ efforts brought

principals together, after which the principals negotiated a sale, after telling the

brokers that there was nothing more for them to do); Bowers v. Greene, 458

S.E.2d 150, 152 (Ga. Ct. App. 1995) (holding summary judgment was

inappropriate on question of whether brokers were the procuring cause of a sale

they did not close, because jury could find brokers did not close the sale after the

owner directed them to cease their involvement in the sales). The district court

erred, therefore, in granting Hemispherx summary judgment on Mid-South’s

claims for quantum meruit and unjust enrichment.4

                         V. MID-SOUTH’S FRAUD CLAIMS

       The district court did not err in granting Sage and Hemispherx summary

       4
         Before the district court, Hemispherx also argued that Mid-South’s unjust enrichment
claim failed as a matter of law because Mid-South did not establish that it conferred a benefit on
Hemispherx. Hemispherx does not reassert that argument on appeal, but we conclude, in any
event, that a jury could find that Mid-South did confer a benefit on Hemispherx.

                                                32
             Case: 11-11618    Date Filed: 08/14/2012   Page: 33 of 40

judgment on Mid-South’s fraud claims. Those claims fall into two categories:

1) misrepresentations Hemispherx and Sage purportedly made to Mid-South after

Hemispherx engaged the second broker, Cato, in November 2008; and

2) misrepresentations Hemispherx purportedly made to Mid-South when

Hemispherx suspended Mid-South’s capital-raising efforts in May 2009.

A. Misrepresentations Hemispherx and Sage made to Mid-South after
Hemispherx hired the second broker, Cato, in November 2008

      Regarding Hemispherx’s hiring Cato, the evidence, viewed in the light most

favorable to Mid-South, established the following:       After authorizing Mid-

South in September 2008 to act on a non-exclusive basis to seek investors on its

behalf, Hemispherx, unbeknownst to Mid-South, engaged a second broker, Cato,

on November 19, 2008. In December 2008 and January 2009, Hemispherx’s

financial advisor, Sage, through Wayne Pambianchi, engaged in several

communications with Mid-South, as well as Cato, regarding the payment of

commissions.

      Through these communications, Pambianchi informed Mid-South’s Cabibi

that Hemispherx was “considering” engaging another investment broker (Doc.

127-6 ¶ 7), and Pambianchi asked Mid-South to provide him a list of investors

Mid-South had already contacted and for which Mid-South would claim a

commission. Cabibi provided Pambianchi with such a list in December 2008, and
                                        33
              Case: 11-11618   Date Filed: 08/14/2012   Page: 34 of 40

then, at Pambianchi’s request, updated that list on January 9, 2009.

      Pambianchi apparently requested the same information from Cato. Cato’s

and Mid-South’s lists included several of the same potential investors, including

Hudson Bay, Cranshire, and Iroquois. “To avoid conflicts and respect everyone’s

efforts,” Pambianchi informed Mid-South that he had “annotated the list you sent.

There are a very few overlaps and where there are, I suggest a split, the % being

what I propose you get of your fees you would otherwise receive. I propose

eliminating a few, as I have done with the other group, because they seem more

engaged.” (Doc. 127-6 at 16.) Pambianchi, thus, crossed several potential

investors off each broker’s list and included percentages next to several other

listed investors.

      Neither Mid-South nor Cato agreed with this proposal. But Mid-South

indicated to Pambianchi that he should do what was best for Hemispherx, and

suggested, twice, that Pambianchi arrange a conference call so Cato and Mid-

South could share information in order to close a deal for Hemispherx.

Pambianchi never responded to Mid-South and the matter of a possible fee dispute

between Cato and Mid-South was never raised again.

      Before the district court, Mid-South, in support of its fraud claims, made a

variety of assertions. On appeal, however, Mid-South appears to argue only that


                                         34
             Case: 11-11618     Date Filed: 08/14/2012    Page: 35 of 40

Pambianchi misrepresented to Mid-South that it would earn a split commission for

investors both Mid-South and Cato had contacted, when in fact Hemispherx did

not intend to pay both brokers a split fee if an investor contacted by both

ultimately invested in Hemispherx.

      Mid-South’s claim fails as a matter of law, for several reasons. A claim for

fraud requires proof of “1) a false representation or omission of material fact;

2) scienter; 3) intent to induce the party claiming fraud to act or refrain from

acting; 4) justifiable reliance; and 5) damages.” Collins v. Regions Bank, 639

S.E.2d 626, 628 (Ga. Ct. App. 2006). Here, it is not clear that Pambianchi made

the false statement Mid-South attributes to him. The excerpt from Pambianchi’s

deposition on which Mid-South relies to support this fraud claim indicates only

that, if an investor contacted by both Mid-South and Cato ultimately invested in

Hemispherx, Hemispherx would pay Cato a commission based on the percentage

of its involvement, but Pambianchi did not know what, if any, commission

Hemispherx would pay Mid-South because Pambianchi was unaware of the terms

of Hemispherx’s agreement with Mid-South. That is not surprising because, as

this lawsuit illustrates, Mid-South and Hemispherx themselves disagree as to the

terms of their business relationship.

      Even if Pambianchi made the false representation Mid-South attributes to


                                          35
               Case: 11-11618       Date Filed: 08/14/2012      Page: 36 of 40

him, the undisputed evidence failed to establish that Mid-South ever relied upon

Pambianchi’s suggested fee split. Instead, the undisputed evidence indicated that

Mid-South never changed or altered any of its efforts to raise capital for

Hemispherx based on Pambianchi’s suggested fee split. Mid-South had already

been seeking investors for Hemispherx before Pambianchi raised the possibility of

a fee split, and Mid-South continued to do so after rejecting Pambianchi’s

suggestion.

       Even if Mid-South did rely on Pambianchi’s suggested fee split, that

reliance would not have been justified because neither Mid-South nor Cato agreed

to Pambianchi’s suggestion, and the possible fee dispute between Mid-South and

Cato was never resolved. Finally, for similar reasons, Mid-South has failed to

show any harm from its reliance on Pambianchi’s suggested fee split. A fee

dispute never arose between Mid-South and Cato.5 Further, Mid-South has not

shown that it continued its efforts to seek investors for Hemispherx based on

anything Pambianchi said. Rather, Mid-South was already engaged in seeking

investors for Hemispherx before Pambianchi initiated his December 2008 and


       5
        Cato has, however, sued Hemispherx in federal district court in Delaware, also seeking
to recover a commission on the stock sales Rodman brokered with Hudson Bay, Cranshire, and
Iroquois. See Cato Capital LLC v. Hemispherx Biopharma Inc., No. 1:09-cv-00549-GMS
(D. Del.). Currently, that litigation is at the summary judgment stage, with several summary
judgment motions at issue.

                                              36
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January 2009 communications with Mid-South, and Mid-South did not alter its

capital-raising efforts after Pambianchi’s suggested a fee split.

      Mid-South also may be arguing, on appeal, that Pambianchi’s statement

about splitting a fee indicated to Mid-South more generally that it would be paid a

commission for any investor it introduced to Hemispherx, when in fact

Hemispherx did not intend to pay Mid-South a fee. But there is no evidence in the

record that Hemispherx did not intend to pay Mid-South any commission at that

time. For these reasons, the district court did not err in granting Hemispherx and

Sage summary judgment on this fraud claim.

B. Misrepresentations Hemispherx made to Mid-South when it informed
Mid-South to cease its capital-raising activities on Hemispherx’s behalf

      In another fraud claim asserted against Hemispherx, Mid-South alleged the

following: On May 4, 2009, Dr. Carter, on Hemispherx’s behalf, misrepresented to

Mid-South that Hemispherx was suspending Mid-South’s efforts to raise capital

for Hemispherx because Hemispherx instead “was attempting to close a ‘strategic

alliance’ with another pharmaceutical company that would result in raising all the

capital needed and would be non-dilutive of existing shares.” (Doc. 49 ¶ 97.)

This was untrue. Hemispherx, instead, intended to hire Rodman exclusively to

sell Hemispherx’s stock. Mid-South relied upon Dr. Carter’s misrepresentation to

its detriment “by refraining from actively seeking additional offers and/or
                                          37
             Case: 11-11618     Date Filed: 08/14/2012    Page: 38 of 40

enhancements or changes in terms to the offers previously made by Cranshire,

Iroquois and Hudson Bay.” (Id. ¶ 99.)

      The district court correctly concluded that the evidence did not establish

that what Dr. Carter told Mid-South was false. Dr. Carter, in his deposition,

testified that, at this time, Hemispherx had discussion with several pharmaceutical

companies about licensing agreements that, though “marginally dilutive,” would

raise capital and not involve the sale of Hemispherx stock. (Doc. 124-4 at38-39.)

      A jury, nevertheless, could find that, although the reason Dr. Carter told

Mid-South to cease its capital-raising efforts was not false, it was also not the real

reason Hemispherx wanted Mid-South to stop its capital-raising activities for

Hemispherx. Even so, Mid-South has failed to establish that the reason Dr. Carter

gave Mid-South to explain why Hemispherx wanted Mid-South to stop seeking

capital for it was material or that Mid-South justifiably relied on that stated reason

to its detriment. Said another way, Mid-South failed to establish that, had

Hemispherx informed Mid-South of the real reason Hemispherx wanted Mid-

South to cease its capital-raising activities, because Hemispherx intended to hire

Rodman, a heavy hitter, to broker the sale of its stock instead, that Mid-South

would have disregarded Hemispherx’s instructions to cease seeking capital and

would have continued trying to raise capital for Hemispherx. For these reasons,


                                          38
               Case: 11-11618       Date Filed: 08/14/2012       Page: 39 of 40

therefore, the district court did not err in granting Hemispherx summary judgment

on this fraud claim.6

VI. HEMISPHERX’S CLAIM THAT MID-SOUTH AND ITS EMPLOYEES
  INTENTIONALLY INTERFERED WITH HEMISPHERX’S BUSINESS
                     RELATIONSHIPS

       Hemispherx alleged that Mid-South, Rosenstein, and Cabibi (“Mid-South

Defendants”) tortiously interfered with Hemispherx’s business relationship with

its potential investors and with Rodman. The district court correctly concluded

that the Mid-South Defendants were entitled to summary judgment on this claim

because Hemispherx failed to assert any evidence on which a jury could find that

Mid-South had acted with malice and with the intent to injure Hemispherx. See

State Farm Mut. Auto. Ins. Co. v. Hernandez Auto Painting & Body Works, Inc.,

719 S.E.2d 597, 600 (Ga. Ct. App. 2011) (recognizing this as an element of a

tortious interference claim); see also White v. Shamrock Bldg. Sys., Inc., 669

S.E.2d 168, 173-74 (Ga. Ct. App. 2008) (noting malice, in this context, “means

any unauthorized interference or interference without legal justification or

excuse”). Viewed in the light most favorable to Hemispherx, the evidence

indicated only that, after Dr. Carter fired Mid-South as its investment broker,


       6
         For these same reasons, Mid-South failed to support its fraud claim with sufficient
specificity to create a triable issue of fact sufficient to survive summary judgment. See McLean
v. Haden, 448 S.E.2d 69, 70 (Ga. Ct. App. 1994).

                                               39
             Case: 11-11618    Date Filed: 08/14/2012   Page: 40 of 40

Hudson Bay, with which Mid-South had been negotiating on Hemispherx’s behalf,

conveyed to Mid-South’s Cabibi an offer to buy Hemispherx stock. Cabibi

listened to that offer and passed it on to Hemispherx. That conduct, as a matter of

Georgia law, does not constitute an intentional interference with Hemispherx’s

business relationships.

                              VIII. CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s decision granting

summary judgment to Mid-South on Hemispherx’s tortious interference claim.

We also AFFIRM summary judgment for Hemispherx and Sage on Mid-South’s

fraud claims. But we REVERSE judgment entered on the pleadings for

Hemispherx on Mid-South’s breach-of-contract claim, and we REVERSE

summary judgment for Hemispherx on Mid-South’s promissory estoppel, quantum

meruit, and unjust enrichment claims, and REMAND these claims to the district

court for proceedings consistent with this decision.




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