Nicholas Webb v. Michael Frawley

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1607
NICHOLAS WEBB,
Plaintiff-Appellant,
v.
MICHAEL FRAWLEY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-6406 — Elaine E. Bucklo, Judge.
____________________
ARGUED SEPTEMBER 21, 2018 — DECIDED OCTOBER 11, 2018
____________________
Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir-
cuit Judges.
FLAUM, Circuit Judge. Plaintiff-appellant Nicholas Webb
sued defendant-appellee Michael Frawley for tortiously inter-
fering with his employment contract and for knowingly mis-
representing company policy, both of which resulted in
Webb’s termination. The district court granted Frawley’s mo-
tion to dismiss Webb’s claims. Webb appeals that decision.
2 No. 18-1607
For the reasons that follow, we affirm the judgment of the dis-
trict court.
I. Background
A. Factual Background 1
In 2010, Jefferies LLC, an independent securities and in-
vestment banking firm, sought to enter the commodities fu-
ture marketplace in over-the-counter trading of base, ferrous,
and precious metals. As part of this strategy, Jefferies ac-
quired a company that offered this expertise, and Jefferies
hired the CEO of Newedge USA, LLC, Patrice Blanc, to serve
as the CEO of the acquired company.
Michael Frawley, Thad Beversdorf, and Nicholas Webb
worked together in Newedge’s Global Metals Group as ex-
perts in base, ferrous, and precious metals trading. They
worked within the following hierarchy: Frawley, the Global
Head of the Metals Group, reported to Blanc (until Blanc left
Newedge for Jefferies); Beversdorf, a director in the Global
Metals Group, reported to Frawley; and Webb, a sales execu-
tive in the Global Metals Group, reported to Beversdorf.
Within six months of becoming CEO of Jefferies’s newly-
acquired company, Blanc approached Frawley about hiring
other employees from Newedge’s Global Metals Group to ac-
celerate Jefferies’s entrance into the metals market. Frawley
promised Blanc that he could propel Jefferies into that market
and he told Blanc that members from his team at Newedge
would follow him to Jefferies. A few months later, Frawley
1 The facts come from Webb’s allegations in the complaint and are
taken as true for the purposes of reviewing the motion to dismiss. See
Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016).
No. 18-1607 3
successfully recruited Beversdorf and Webb to leave
Newedge and to come work at Jefferies. On or about June 4,
2012, Frawley, Beversdorf, and Webb resigned from
Newedge; both Beversdorf and Webb entered into employ-
ment contracts with Jefferies in its Chicago office.
Soon thereafter, Newedge sued Jefferies for hiring its em-
ployees. In July 2012, after receiving notice of Newedge’s law-
suit, Jefferies adopted an internal policy that required all met-
als trades by former-Newedge employees to be executed
through the Jefferies Metals Desk in London (so as not to tie
any profitability back to former-Newedge employees). Addi-
tionally, Jefferies implemented an internal accounting proce-
dure that attributed several categories of expenses to the met-
als trading business units, even though those units did not in-
cur such expenses. This meant that the metals trading busi-
ness units appeared unprofitable, but Jefferies’s overall per-
formance was not diminished.
Frawley stated his disagreement with the policy and pro-
cedure publicly. By making Frawley’s business units appear
unprofitable, the policy and procedure caused real harm to
his individual success within Jefferies as well as to his com-
mercial reputation in the industry. Additionally, Frawley
knew that the policy and procedure would make qualified
personnel in his business unit less likely to stay, since they
would become ineligible for bonuses and compensation un-
der the new regime.
To make matters worse for Frawley, in May 2013, Jefferies
decided to abandon the iron ore business altogether. Jefferies
instructed Frawley to direct his employees not to pursue or
book trades in iron ore, but Frawley did not follow those or-
ders.
4 No. 18-1607
In direct contravention of Jefferies’s instruction, Frawley
told Beversdorf and Webb to pursue iron ore business, and he
told them that they would be facilitating iron ore trades across
the Metals Desk globally. Frawley also told “various employ-
ees of Jefferies” in an e-mail that Beversdorf and Webb would
be facilitating such trades. Frawley took these steps because
he was desperate to save his commercial reputation. Accord-
ing to the complaint, Frawley believed his job, compensation,
and commercial reputation depended on his ability to estab-
lish a book of business that did not trade through the Metals
Desk in London.
Since Frawley refused to inform Webb of Jefferies’s deci-
sion, Webb remained unaware of the change in business strat-
egy. He simply followed Frawley’s orders and spent hun-
dreds of hours with Beversdorf over the course of several
months after May 2013 devoted to strategizing how to build
the iron ore desk in Chicago. That was time Webb could have
used to pursue other transactions that would have been prof-
itable to him and to Jefferies. But Frawley continued to have
conversations with Webb after May 2013 wherein he told
Webb that Jefferies intended to continue its plan to dominate
the iron ore market.
In early August 2013, Frawley warned Beversdorf and
Webb that Jefferies had started laying off some employees due
to a lack of profitability and that their positions were in jeop-
ardy. At the end of that month, Frawley called Beversdorf to
say that Human Resources had started processing his and
Webb’s termination, but that they could save their jobs if they
booked a few large iron ore deals. And when Beversdorf sent
Frawley a request to approve a pending iron ore trade that he
No. 18-1607 5
had worked on with Webb, Frawley again ignored Jefferies’s
policy and approved the trading limits.
The day after Frawley’s approval, however, the COO of
Jefferies told Webb that Jefferies had formally cancelled the
iron ore product at a meeting that Frawley attended back in
May. Shortly thereafter, on September 3, 2013, the COO of Jef-
feries e-mailed Beversdorf to say that Jefferies would not con-
sider the iron ore deal and that Jefferies remained steadfast in
its decision to not market that product.
Webb went to Human Resources to inquire about his em-
ployment status, but Human Resources refused to comment.
And on September 6, 2013, Webb began calling his prospec-
tive iron ore clients to explain that Jefferies would not take
such deals anymore. Having to make those calls irreparably
damaged Webb’s commercial reputation.
About five weeks after Beversdorf and Webb told Frawley
that they had updated their prospective clients about Jeffer-
ies’s iron ore policy, they were both terminated without ex-
planation. Beversdorf and Webb were later advised that Jef-
feries fired them for poor performance and a lack of produc-
tion.
Webb alleges that Frawley used him in an attempt to res-
urrect or save Frawley’s commercial reputation. Specifically,
Webb complains that Frawley intentionally induced a breach
of Webb’s employment contract with Jefferies by ordering
Webb to pursue business that Jefferies refused to fulfill and by
reporting to Jefferies that Webb was not performing. Webb
further accuses Frawley of knowingly misrepresenting to
Webb that Jefferies wanted him to seek iron ore trades with
6 No. 18-1607
the intention that Webb would rely on and act on that misrep-
resentation in making trades, which would have the effect of
preserving Frawley’s compensation and possibly his job.
B. Procedural Background
Before filing this lawsuit, which was one of many actions
Beversdorf and Webb pursued in relation to their termination
from Jefferies, Beversdorf and Webb initiated an arbitration
action with FINRA. That arbitration process had not con-
cluded when Beversdorf and Webb withdrew their action.
Beversdorf and Webb then filed a complaint in the Law
Division of the Circuit Court of Cook County against Frawley
(and named Jefferies as a respondent in discovery), bringing
tortious interference with contract and common-law fraud
claims. 2 Frawley removed that lawsuit to the United States
District Court for the Northern District of Illinois, thereby
starting this federal action. Webb moved to remand the case,
but the district court denied the motion. Next, Jefferies filed a
motion to compel arbitration, and the district court dismissed
the case with leave to reinstate it within one year. Beversdorf
and Webb appealed both decisions.
2 While this case was pending, Beversdorf and Webb also filed a com-
plaint in the Chancery Division against Jefferies, seeking injunctive relief
to prevent Jefferies from destroying materials relevant to their claims and
bringing a damages claim for Jefferies’s alleged spoliation of evidence.
The chancery court dismissed that complaint because Beversdorf’s and
Webb’s claims were subject to mandatory arbitration before FINRA. And
the Illinois Appellate Court affirmed the dismissal of the complaint on the
alternative basis that there were other actions pending between the parties
under 735 Ill. Comp. Stat. 5/2-619(a)(3). See Webb v. Jefferies, LLC, No. 16 C
2831, 2017 WL 2856110, at *1 (Ill. App. Ct. June 30, 2017).
No. 18-1607 7
This Court affirmed the decision not to remand the case to
state court. See Webb v. Frawley, 858 F.3d 459, 461 (7th Cir.
2017). As to the decision to compel arbitration and to dismiss
the case, the Court affirmed in part, reversed in part, and re-
manded. Id. We held that Beversdorf had waived his right to
trial by jury and had agreed to arbitrate any dispute with Jef-
feries by signing a form; this Court, therefore, affirmed the
district court’s conclusion that Beversdorf must arbitrate his
claims. By contrast, this Court held that Webb had not signed
the same form or otherwise waived his right to trial by jury;
so, we reversed and remanded the district court’s decision
that Webb must arbitrate his claims.
Back before the district court, Frawley moved to enter a
scheduling order, hoping the district court would set a dead-
line for Webb to file an amended complaint. Webb declined to
do so, however. After the parties finished briefing Frawley’s
motion to dismiss the complaint, the Executive Committee re-
assigned the case from Judge Der-Yeghiayan to Judge Bucklo.
Judge Bucklo granted the motion to dismiss because Webb
failed to state a claim for tortious interference with contract
under Federal Rule of Civil Procedure 12(b)(6) and because
Webb’s common-law fraud claim failed to meet the standards
of Rule 9(b). Accordingly, Judge Bucklo dismissed the com-
plaint with prejudice and entered judgment. Webb did not
seek post-judgment relief; instead, he appealed the decision.
II. Discussion
We review a district court’s grant of a motion to dismiss
based on Rules 12(b)(6) and 9(b) de novo. Forgue v. City of Chi-
cago, 873 F.3d 962, 966 (7th Cir. 2017); Borsellino v. Goldman
Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007). We accept all
well-pleaded facts in the complaint as true, and we draw all
8 No. 18-1607
reasonable inferences in the plaintiff’s favor. Pierce v. Zoetis,
Inc., 818 F.3d 274, 277 (7th Cir. 2016).
To survive a motion to dismiss for failure to state a claim,
the plaintiff must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard … asks for more than a sheer pos-
sibility that a defendant has acted unlawfully.” Id.
To allege fraud or mistake, on the other hand, the plaintiff
“must state with particularity the circumstances constituting
fraud or mistake.” Fed. R. Civ. P. 9(b). The plaintiff may need
to perform pre-complaint investigation to provide “the who,
what, when, where, and how” of the fraud or mistake.
Borsellino, 477 F.3d at 507 (citation omitted). Depending on the
facts of a case, though, the requisite information as to those
five questions may differ; courts should not “take an overly
rigid view of the formulation.” Pirelli Armstrong Tire Corp. Re-
tiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 442 (7th Cir.
2011). Finally, we may affirm a dismissal on any ground sup-
ported by the record. Kowalski v. Boliker, 893 F.3d 987, 994 (7th
Cir. 2018).
A. Tortious Interference with Contract
The existence of a claim for a breach of contract induced
by a third party is well-established under Illinois law. See Her-
man v. Prudence Mut. Cas. Co., 244 N.E.2d 809, 812 (Ill. 1969)
(third-party inducement theories have “been repeatedly reaf-
firmed in this State”) (first citing Doremus v. Hennessy, 52 N.E.
No. 18-1607 9
924 (Ill. 1898); then citing London Guar. & Accident Co. v. Horn,
69 N.E. 526 (Ill. 1903); and then citing Carpenters' Union v. Cit-
izens' Comm. to Enforce Landis Award, 164 N.E. 393 (Ill. 1928)).
The tort recognizes that individuals have a property interest
in their business relationships, such that those interests
should be free from harm by others. Belden Corp. v. InterNorth,
Inc., 413 N.E.2d 98, 101 (Ill. App. Ct. 1980). Since a general
duty not to interfere with an individual’s business relation-
ships is quite broad, Illinois courts announced that in certain
situations, an individual may be privileged to interfere with
another’s business relationships—for example, in the context
of lawful competition. Id. (citing Herman, 244 N.E.2d at 812).
To state a claim for tortious interference with contract, a
plaintiff must allege facts sufficient to establish: (1) a valid
contract, (2) defendant’s knowledge of the contract, (3) de-
fendant’s intentional and unjustified inducement of a breach
of the contract, (4) a subsequent breach of contract caused by
defendant’s wrongful conduct, and (5) damages. 3 Healy v.
Metro. Pier & Exposition Auth., 804 F.3d 836, 842 (7th Cir. 2015)
(citing HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545
N.E.2d 672, 676 (Ill. 1989)). But, as previewed above, Illinois
recognizes a conditional privilege for corporate officers—cor-
porate officers may interfere with a contract where they use
business judgment to act on behalf of their corporation. Nation
v. Am. Cap., Ltd., 682 F.3d 648, 651–52 (7th Cir. 2012) (citing
HPI Health Care Servs., 545 N.E.2d at 677). The privilege is con-
ditional, meaning it will not shield a corporate officer from
liability if the reason a corporate officer interfered with a con-
tract was either to further his personal goals or to injure a
3 The parties did not dispute the first two elements before the district
court, and they do not dispute those elements on appeal.
10 No. 18-1607
party to the contract, and his actions were not in the best in-
terests of the corporation. Id. at 653 (first citing Von der Ruhr v.
Immtech Int’l, Inc., 570 F.3d 858, 866–67 (7th Cir. 2009); then
citing HPI Health Care Servs., 545 N.E.2d at 678).
The district court found Webb’s theory of his claim “hard
to fathom,” but in ruling on the motion to dismiss, the district
court “assume[d] … that it somehow behooved Frawley to
sabotage Webb’s performance.” Notwithstanding that as-
sumption, the district court concluded that Webb failed to
state a tortious interference with contract claim. The basis for
that conclusion was two-fold. First, the district court under-
stood Webb’s claim as premised on conduct that Frawley di-
rected at Webb instead of at a third party, as the law requires.
See George A. Fuller Co. v. Chi. Coll. of Osteopathic Med., 719 F.2d
1326, 1331 (7th Cir. 1983) (“Under Illinois law, liability for tor-
tious interference may only be premised on acts immediately
directed at a third party which cause that party to breach its
contract with the plaintiff.”). In relation to this third-party re-
quirement, the district court flagged Webb’s argument that in
Frierson v. University of Chicago, No. 15 C 1176, 2015 WL
7771030 (Ill. App. Ct. Dec. 2, 2015), the Illinois appellate court
recognized an exception to the third-party rule where the in-
terference was by a corporate officer. The district court did not
correct Webb’s misstatement of the law; instead the district
court remarked that Webb’s complaint suffered from the
same “infirmity” as the complaint the Frierson court dis-
missed—neither Webb nor the plaintiff in Frierson alleged that
the relevant corporate officers in their cases benefited from
causing their terminations. 4
4 Frierson stated: “Ordinarily, the defendant’s interference must be di-
rected towards a third party.” 2015 WL 7771030, at *3. The appellate
No. 18-1607 11
Second, the district court reasoned that the necessary im-
plication of Webb’s allegations was that Frawley intended
Webb’s trades to succeed (so that Frawley would prosper),
but Webb needed to show that Frawley intended to cause his
termination, which the district court thought required a
showing that Frawley intended Webb’s trades to fail. Unable
to reconcile these contradictory concepts, the district court
dismissed Webb’s tortious interference with contract claim.
On appeal, Webb argues that the district court misappre-
hended his claim; Webb alleged that Frawley deliberately in-
terfered with his contract with Jefferies by contravening Jef-
feries’s policies and by leading Jefferies to believe that Webb
was not performing, while keeping it hidden from Jefferies
that he had instructed Webb to pursue the prohibited iron ore
trades. Frawley maintains that Webb’s claim still fails because
Frawley was protected by the corporate officer privilege.
court’s choice to introduce that rule with the word “[o]rdinarily” was odd
(if not misleading); but the court did not otherwise indicate that it was
carving out an exception to this well-established rule. To the contrary, the
court cited Douglas Theater Corp. v. Chicago Title & Trust Co., to support its
mention of the rule; in Douglas Theater, the court reiterated the oft-cited
rule in Illinois: “it has been long held that the defendant’s interference
must be directed toward a third party.” 641 N.E.2d 584, 590 (Ill. App. Ct.
1994). Both Frierson and Douglas Theater involved tortious interference
with economic advantage (not with contract), but their holdings as to the
intentional interference element and the question of privilege apply with
equal force to interference with contract cases. See Fellhauer v. City of Ge-
neva, 568 N.E.2d 870, 878 (Ill. 1991). There is no exception to save Webb’s
claim here.
12 No. 18-1607
1. The Corporate Officer Privilege
The parties dispute who bears the burden of proving
whether the corporate officer privilege applies. Rightly so, be-
cause Illinois courts have not provided a definitive answer.
See Nation, 682 F.3d at 651 n.2 (comparing HPI Health Care
Servs., 545 N.E.2d. at 677 (“In Illinois, this court has repeatedly
stated that where the conduct of a defendant in an interfer-
ence with contract action was privileged, it is the plaintiff's
burden to plead and prove that the defendant’s conduct was
unjustified or malicious.”), with Roy v. Coyne, 630 N.E.2d 1024,
1033 (Ill. App. Ct. 1994) (“[The language in HPI Health Care]
certainly does not foreclose the possibility that justification
can be an affirmative defense ... rather than an absence of jus-
tification being an essential element ... .”)). We need not re-
solve that uncertainty, however, because Webb’s allegations
overcome the privilege.
It is reasonable to infer from Webb’s allegations that Fraw-
ley acted solely for his own benefit—the benefit being either
that he would convince Jefferies to process the trades and at-
tribute them to him, thereby building his success at Jefferies,
or that he would build a book of business that he could take
with him should he leave Jefferies. Frawley responds that any
self-interested actions he could have taken would have also
benefitted Jefferies and Webb, so his actions could not have
been against Jefferies’s best interests. We disagree.
In most instances, bringing in trades and establishing re-
lationships with customers would be in a corporation’s best
interests. Here, however, the allegations describe a unique sit-
uation: Newedge had sued Jefferies for poaching its traders
(who make the types of trade deals at issue here); Jefferies
tried to reroute metals trades by former-Newedge employees
No. 18-1607 13
from Chicago to London, but abandoned that strategy and
implemented a policy banning such trades altogether; and Jef-
feries was in a period of low profitability, forcing it to lay off
a number of its employees. A reasonable inference to draw
from these allegations is that it was not in Jefferies’s best in-
terest to have Webb pursue metals trades after Jefferies an-
nounced the policy in May 2013.
Since Webb has shown that Frawley acted in his own in-
terest and contrary to Jefferies’s interest in interfering with
Webb’s employment contract, the corporate officer privilege
does not apply here.
2. The Intent to Induce
Webb believes the district court reached the wrong result
on the intent-to-induce element not only because it misappre-
hended the theory of his claim, but also because the district
court misstated the holding of Strosberg v. Brauvin Realty Ser-
vices, Inc. 691 N.E.2d 834 (Ill. App. Ct. 1998). The district court
cited Strosberg for the proposition that a defendant must in-
tend to induce the contractual breach to be liable for tortious
interference with contract in Illinois. Webb says he need only
show that Frawley acted intentionally and without just cause
when he misled Jefferies. For support, he quotes this passage
of Strosberg:
If the plaintiff’s complaint raises the issue of
privilege or justification on its face, then the
plaintiff has the burden of pleading and proving
lack of justification or malice. In the context of
claims for tortious interference with contract,
malice does not require a showing of ill will,
hostility or intent to injure; rather, it requires a
14 No. 18-1607
showing that the defendant acted intentionally
and without just cause.
Id. at 845 (citations omitted). But that passage concerns proof
of malice. Looking at the next paragraph in Strosberg, it is clear
that the district court accurately stated Strosberg’s holding—
the intent to induce a contractual breach is an element of a
tortious interference with contract claim. Id. (“A necessary
prerequisite to the maintenance of an action for tortious inter-
ference with contract is a defendant’s intentional and unjusti-
fied inducement of a breach of contract . … [A]nd in order to
establish that tort there must be evidence of a breach of con-
tract caused by the defendant.”).
Thus, to survive the motion to dismiss, Webb needs to
show that Frawley intended to cause the breach—here,
Webb’s termination. Intent to induce “requires some active
persuasion, encouragement, or inciting that goes beyond
merely providing information in a passive way.” In re Estate
of Albergo, 656 N.E.2d 97, 103 (Ill. App. Ct. 1995) (citation omit-
ted); see also Restatement (Second) of Torts § 766 cmt. h (Am.
Law. Inst. 1979) (“The essential thing is the intent to cause the
result. If the actor does not have this intent, his conduct does
not subject him to liability under this rule even if it has the
unintended effect of deterring the third person from dealing
with the other.”). But, nothing in the complaint alleges that
Frawley was involved in Jefferies’s decision to terminate
Webb, much less that Frawley was an active participant in that
decision-making process. And because “knowledge that one’s
conduct is substantially certain to result in one party breaking
its contract with another” does not constitute inducement,
R.E. Davis Chem. Corp. v. Diasonics, Inc., 826 F.2d 678, 687 (7th
Cir. 1987), Webb’s allegations that Frawley reported Webb’s
No. 18-1607 15
poor performance to Jefferies and that Webb’s termination fol-
lowed are insufficient to state a claim.
Webb has not alleged facts sufficient to establish the ele-
ment of intentional inducement, which is to say that he fails
to state a claim for tortious interference with contract.
3. Breach of an At-Will Contract
The district court did not reach the breach element; but, in
a footnote on appeal, Frawley argues that Webb cannot show
that Jefferies breached Webb’s employment contract because
Webb, an at-will employee, has no valid contractual expecta-
tion of continued employment with Jefferies. The issue of
whether at-will employees may bring tortious interference
with contract claims, however, is unsettled in Illinois.
In Fellhauer v. City of Geneva, the Supreme Court of Illinois
outlined the following: the appellate court had noted a divi-
sion among appellate districts as to whether an at-will em-
ployee may bring a claim for tortious interference with con-
tract; the appellate court joined the “no” camp of that debate
and determined that the plaintiff could not state such a claim
because he was an at-will employee; and the appellate court
reasoned that the plaintiff’s legitimate expectation of (at-will)
employment in that case sounded in the tort of intentional in-
terference with a prospective economic advantage. 568 N.E.2d
870, 877 (Ill. 1991) (comparing Cashman v. Shinn, 441 N.E.2d 940
(Ill. App. Ct. 1982) (interference with business relationship),
and Belden, 413 N.E.2d 98 (interference with prospective eco-
nomic advantage), with Kemper v. Worcester, 435 N.E.2d 827
(Ill. App. Ct. 1982) (interference with contractual relation-
ship)). But, because the plaintiff in Fellhauer did not challenge
the appellate court’s conclusion that the appropriate tort was
16 No. 18-1607
that of intentional interference with prospective economic ad-
vantage, the Illinois Supreme Court did not resolve the con-
fusion among appellate districts.
Opinions from this Court interpreting Illinois decisions
have not provided a consistent view. Although most of our
opinions leave open the possibility that an at-will employee
may bring a claim for tortious interference with contract,5
5 See Hess v. Kanoski & Assocs., 668 F.3d 446, 454 (7th Cir. 2012) (dis-
missing plaintiff’s claims for tortious interference with contract for several
reasons other than plaintiff’s at-will employment); Speakers of Sport, Inc. v.
ProServ, Inc., 178 F.3d 862, 865 (7th Cir. 1999) (“[I]nducing the termination
of a contract, even when the termination is not a breach because the con-
tract is terminable at will, can still be actionable under the tort law of Illi-
nois, either as an interference with prospective economic advantage, … or
as an interference with the contract at will itself.” (citations omitted)); Wil-
liams v. Shell Oil Co., 18 F.3d 396, 402 (7th Cir. 1994) (“An oral at-will con-
tract can be a valid contract in an action of tortious interference.” (citing
Lusher v. Becker Bros., Inc., 509 N.E.2d 444 (Ill. App. Ct. 1987))); Europlast
Ltd. v. Oak Switch Sys, Inc., 10 F.3d 1266, 1274 (7th Cir. 1993) (“We do not
agree that Oak is excused from liability merely because of Butler’s status
as an at-will employee. One Illinois appellate court has stated ‘[r]ecent de-
cisions have held that a cause of action may exist for tortious interference
with a contract of employment at-will.’” (quoting Cashman, 441 N.E.2d at
944)); Fishman v. Estate of Wirtz, 807 F.2d 520, 545 n.20 (7th Cir. 1986)
(“While these cases show the courts’ unwillingness to unduly restrict the
tort based on technicalities, we do not think that they speak to the point
made in Belden.… [Kemper] held that interference with an at-will employ-
ment contract is actionable …. This is completely consistent with Belden.”
(citations omitted)); George A. Fuller Co., 719 F.2d at 1330–31 (“[Regarding]
the breach element of tortious interference with contract, both the Illinois
Supreme Court and the Illinois Appellate Court consistently require more
than conduct rendering performance of the contract more burdensome, …
requiring either a breach of contract, termination of the contractual rela-
tions, or rendering performance impossible.” (citations omitted)).
No. 18-1607 17
some of our opinions appear to foreclose that possibility. 6 We
do not address the tension here, however, as Webb has
waived any counterarguments he may have had by not re-
sponding to Frawley’s argument on this topic in his reply
brief. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir.
2010).
The district court accurately held that Webb failed to state
a claim for tortious interference with contract under Rule
12(b)(6).
B. Common-Law Fraud
The district court decided that Webb’s allegations did not
meet the heightened pleading requirements of Rule 9(b). Ac-
cording to the district court, the complaint lacked specific
statements by Frawley that constituted misrepresentations.
Relatedly, the district court determined that there were no al-
legations from which it could infer “an implicit misrepresen-
tation” about what Jefferies wanted. This is because the dis-
trict court found it implausible that Frawley could have been
motivated to make a knowing misrepresentation to Webb that
Jefferies wanted Webb to seek iron ore trades given that the
complaint did not explain how or why Frawley’s professional
reputation would be improved or salvaged by Webb’s pursuit
of futile business.
6 See Prudential Ins. Co. of Am. v. Sipula, 776 F.2d 157, 162 (7th Cir. 1985)
(“A defendant’s inducement of the cancellation of an at-will contract con-
stitutes at most interference with a prospective economic advantage, not
interference with contractual relations.” (citations omitted)); Cody v. Har-
ris, 409 F.3d 853, 859 (7th Cir. 2005) (same) (first citing Prudential Ins. Co. of
Am., 776 F.2d at 162; then citing Accurso v. United Airlines, Inc., 109 F. Supp.
2d 953, 962 (N.D. Ill. 2000)).
18 No. 18-1607
On appeal, Webb asserts that the district court misidenti-
fied the fraudulent conduct; the conduct included not only
Frawley’s direction to work on a cancelled product, but also
Frawley’s refusal to tell Webb that Jefferies cancelled the
product, which Webb says was information he was entitled to
know. Webb asserts that his claim survives dismissal if he
shows: (1) Frawley failed to disclose a material fact; (2) Webb
had a right to rely on Frawley’s false statement or omission;
(3) the false statement or omission was made for the purpose
of inducing reliance thereon; (4) Webb relied on the false state-
ment or omission; and (5) Webb suffered injury as a direct re-
sult. See Butler v. Harris, 13 N.E.3d 380, 387 (Ill. App. Ct. 2014).
As such, Webb argues that the district court erred when it dis-
missed Webb’s claim for lacking a specific false statement.
Frawley takes issue with the fact that Webb raises an omis-
sion theory of fraud for the first time on appeal; in a footnote,
Frawley argues that the doctrine of waiver prevents Webb
from raising a new issue on appeal. See Domka v. Portage
County, 523 F.3d 776, 783 (7th Cir. 2008). It appears that the
parties are talking past each other—the district court’s refer-
ence to “an implicit misrepresentation” could be understood
as an attempt to grapple with Webb’s theory that the fraud
was both Frawley’s direction to do metals trades and Fraw-
ley’s silence about Jefferies’s new prohibition on those trades.
In that case, Webb would be incorrect in saying the district
court misidentified the fraudulent conduct, and Frawley
would be incorrect in saying that Webb is asserting a new the-
ory on appeal. Yet because Webb did not respond to this point
in his reply brief, he waived any counterarguments he could
have raised. Bonte, 624 F.3d at 466.
No. 18-1607 19
In any event, we agree with the district court that Webb’s
complaint did not satisfy Rule 9(b). Missing from the com-
plaint is a sufficiently detailed and cohesive theory of the
fraud. The complaint says Frawley directed Webb to pursue
metals trades without telling Webb that Jefferies would not
fulfill those trades; but we do not know the specifics of Fraw-
ley’s statements or directions to Webb. The complaint identi-
fies a conclusory motive for Frawley’s actions—a desire to
protect his job at Jefferies and his commercial reputation—but
it does not explain how Frawley would accomplish those
goals by “going rogue” and sending an indirect report once
removed on a forbidden mission.
At oral argument, Webb’s counsel represented that in the
response brief to Frawley’s motion to dismiss, Webb argued
that it would serve Frawley to pursue these trades even if Jef-
feries would not fulfill them because deals in that industry are
portable. 7 In other words, if Jefferies was not interested in the
trades, Frawley could take the trades with him to another
company. Apparently, that would improve Frawley’s success
or reputation. That allegation, however, was absent from the
complaint.
7 The response brief to the motion to dismiss asserted that it was rea-
sonable to infer from the allegations that “if Frawley’s business units were
intentionally being saddled with expenses, then one of his available
courses was to develop business that he could ultimately take elsewhere.”
More than reasonable, the argument continued, it was probable that Fraw-
ley would do this because “his only value in the industry was maintaining
a portable book of business.” Rule 9(b) requires specific allegations; im-
portant factual allegations like these cannot lie between the lines.
20 No. 18-1607
Webb’s common-law fraud allegations do not satisfy Rule
9(b). The district court’s decision to dismiss his claim on that
basis was correct.
C. Request for Leave to Amend
At a minimum, Webb asks this Court to reverse the district
court’s decision in part for not granting him leave to amend
the complaint. Webb points to the request he made for leave
to amend in the penultimate paragraph of his response to
Frawley’s motion to dismiss, and he asserts that Rule 15 and
Foman v. Davis required the district court to freely grant leave
to amend here. 371 U.S. 178, 182 (1962) (“Rule 15(a) declares
that leave to amend ‘shall be freely given when justice so re-
quires’; this mandate is to be heeded.”).
Foman states a broad principle about requests for leave to
amend; but this case is more analogous to James Cape & Sons
Co. v. PCC Construction Co., where this Court reasoned that
because the plaintiff never formally requested leave to amend
and only “expressed its intention to ‘describe in even greater
detail the damages it suffered’” in the penultimate paragraph
of its response to defendants’ motion to dismiss, the district
court could have reasonably believed that the plaintiff’s
amended complaint would suffer the same fatal flaws as the
one before it. 453 F.3d 396, 401 (7th Cir. 2006). The Court fur-
ther explained: “District judges are not mind readers …. Even
assuming that [plaintiff] properly moved to amend, the dis-
trict court did not abuse its discretion in dismissing with prej-
udice, since it had no way of knowing what the proposed
amendment entailed.” Id. The same is true here.
Webb also argues that because the district court relied on
the plausibility standard in dismissing the complaint,
No. 18-1607 21
McCauley v. City of Chicago required the district court to grant
leave to amend here. 671 F.3d 611 (7th Cir. 2011). As Frawley
points out, the district court did not dismiss his complaint
solely on procedural grounds here, so Webb’s argument is un-
availing. Moreover, the pronouncement Webb relied on from
McCauley comes from the dissenting opinion. Id. at 628 (Ham-
ilton, J., dissenting) (“Courts must freely give leave to amend
under Rule 15(a) where interests of justice so require. Under
this liberal rule, we allow amendment on remand in many
procedural dismissal cases.” (citations omitted)).
Webb is not entitled to leave to amend at this stage. The
district court was right to deny Webb’s request.
D. Request for Sanctions
Frawley asks the Court to impose sanctions against Webb
and his counsel for vexatious litigation under “Judicial Code
1927.” Section 1927 provides that an attorney who “multiplies
the proceedings in any case unreasonably and vexatiously
may be required by the court to satisfy personally the excess
costs, expenses, and attorneys’ fees reasonably incurred be-
cause of such conduct.” 28 U.S.C. § 1927. Supporting this re-
quest, Frawley outlines what he perceives as Webb’s counsel’s
indiscretions: he ignored controlling precedent, he advanced
frivolous arguments in opposing removal, he sought to use
these proceedings to obtain discovery from Jefferies that
FINRA would not allow, and he appealed the denial of the
motion to remand, advancing the same arguments on appeal.
An attorney runs afoul of § 1927 if he: (1) “act[s] in an ob-
jectively unreasonable manner by engaging in a ‘serious and
studied disregard for the orderly process of justice’”; or
(2) files a claim that lacks “a plausible legal or factual basis
22 No. 18-1607
[or] justification.” Burda v. M. Ecker Co., 2 F.3d 769, 777 (7th
Cir. 1993) (citation omitted). Though Webb’s counsel has filed
several unsuccessful lawsuits arising out of Webb’s termina-
tion from Jefferies, those courts have not reprimanded his
counsel for abusing the judicial process, nor have those courts
dismissed Webb’s claims solely because they lacked a plausi-
ble basis.
Counsel’s actions do not warrant sanctions under § 1927.
Frawley’s request is denied.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.