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NOT FOR PUBLICATION
In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-13911 ____________________
TENOR CAPITAL PARTNERS, LLC, Plaintiff-Counter Claimant-Appellee, versus
GUNBROKER.COM, LLC, Defendant-Counter Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:20-cv-00613-TWT ____________________
Before NEWSOM, BRANCH, and LUCK, Circuit Judges. LUCK, Circuit Judge: GunBroker.com, LLC sued Tenor Capital Partners, LLC af- ter it received financial-advisory and related finance-raising services from Tenor. Tenor countersued GunBroker for not paying for those services. Following cross-motions for summary judgment, a USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 2 of 23
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motion for reconsideration filed by GunBroker, a motion for judg- ment as a matter of law filed by GunBroker, and a renewed motion for judgment as a matter of law filed by GunBroker, Tenor ulti- mately secured a $1.5 million verdict in its favor. GunBroker ap- peals several of the district court’s orders. After review, and with the benefit of oral argument, we re- verse the district court’s summary-judgment order to the extent it granted summary judgment on GunBroker’s breach-of-fiduciary- duty claim, but we affirm the order to the extent it granted sum- mary judgment on GunBroker’s Georgia Securities Act claim. We also affirm the district court’s order denying reconsideration of its summary judgment on GunBroker’s Georgia Securities Act claim. Finally, we reverse the district court’s order denying GunBroker’s motion for judgment as a matter of law on Tenor’s unjust-enrich- ment claim. We therefore affirm in part, reverse in part, and re- mand for further proceedings.
FACTUAL BACKROUND AND PROCEDURAL HISTORY GunBroker is an online marketplace that allows users to buy and sell firearms. GunBroker hired Tenor, a financial firm, to help it establish an employee stock ownership plan (ESOP). By creating an ESOP, GunBroker would create a trust to buy its shares and hold them for the benefit of GunBroker employees, giving the em- ployees retirement benefits at no cost to them. GunBroker and Tenor entered into an agreement. Under the agreement, Tenor would perform “limited financial advisory USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 3 of 23
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services” in three “stages.” At stage one, the “[a]nalysis and [s]truc- turing [s]tage,” Tenor would advise GunBroker on the potential ESOP, including by performing a valuation of the company and identifying possible ways to finance the transaction. At stage two, the “[f]inancing [r]aise [s]tage,” Tenor would attempt to raise fi- nancing for the ESOP by reaching out to—and negotiating with— potential lenders. Finally, at stage three, the “[c]losing [s]tage,” Tenor would help close the ESOP transaction. The agreement pro- vided that Tenor would receive a separate fee for stage one and would only proceed to stage two if GunBroker authorized it to do so. The agreement contained a few other provisions relevant to this appeal. First, it provided that GunBroker had to pay Tenor a fee if GunBroker closed a transaction with a lender it found through Tenor within twelve months of terminating the agree- ment. Second, the agreement had a severability clause stating that any provision’s invalidity or unenforceability wouldn’t affect the validity or enforceability of any other provision. And third, the agreement said that “nothing in” it would “[b]e deemed to create a fiduciary or agency relationship” between GunBroker and Tenor. The parties began with the first stage. Tenor presented GunBroker with a financial analysis of a possible ESOP transaction and performed a valuation estimating that GunBroker was worth at least $180 million. Tenor provided this advice, including the val- USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 4 of 23
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uation and other financial analysis, without registering as an invest- ment adviser with the Securities and Exchange Commission or the state of Georgia. Based on Tenor’s advice, GunBroker decided to proceed with the transaction and authorized Tenor to begin stage two. As part of its efforts to secure financing, Tenor distributed a financing memorandum to potential lenders that explained GunBroker’s business and the proposed ESOP. This financing memorandum in- cluded the valuation and financial analysis Tenor performed at stage one. Tenor was eventually able to negotiate a term sheet with MGG Investment Group that provided financing of $70 mil- lion to help create the ESOP. GunBroker entered into a deal with MGG under the term sheet. Then, the relationship between GunBroker and Tenor soured. Steve Urvan, GunBroker’s owner, emailed one of Tenor’s principals, Todd Butler, to ask about the fact that Tenor was not registered as an investment adviser either federally or in Georgia. Butler forwarded this email to a third person and said he didn’t “plan to dignify it with a response.” GunBroker then emailed the legal counsel that was advising it on the ESOP and told counsel that Tenor would no longer be involved in the transaction. In response, GunBroker’s legal counsel withdrew from the representation. This exchange was relayed to Butler, and the next day he emailed Urvan to confirm the termination of Tenor and GunBroker’s relationship. USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 5 of 23
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While GunBroker tried to pursue the ESOP transaction without Tenor’s help, it failed to secure a satisfactory deal. It aban- doned the ESOP and negotiated a different non-ESOP financing agreement with MGG worth $65 million. Tenor learned about this financing agreement and demanded a payment of $1,050,000.00 under its agreement with GunBroker. GunBroker then initiated this lawsuit against Tenor. The complaint alleged nine counts against Tenor, but only a few are relevant here. The first and third counts alleged that Tenor vio- lated the Investment Advisers Act of 1940 and the Georgia Securi- ties Act by acting as an unregistered investment adviser. GunBro- ker sought rescission of the agreement based on these claims. And the seventh count alleged that Tenor breached its fiduciary duties to GunBroker by manipulating its valuation to induce it to enter into an ESOP transaction that Tenor would profit from, by engag- ing in undisclosed side deals with third parties, and by failing to dis- close that Tenor was not a registered investment adviser. Tenor asserted five counterclaims. Two are relevant in this appeal: a claim for attorney’s fees and another for unjust enrichment for fi- nancing services provided under stage two of the agreement. The parties then filed cross-motions for summary judgment on all claims. GunBroker argued that it was entitled to summary judgment on its claims under the Investment Advisers Act and the Georgia Securities Act because there was no genuine issue of ma- terial fact that Tenor acted as an unregistered investment adviser USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 6 of 23
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when it performed a valuation of the company and advised Gun- Broker on whether to pursue an ESOP transaction. Tenor, in its motion, argued that it was entitled to summary judgment on the same claims because an ESOP adviser did not qualify as an invest- ment adviser. It also argued that it was entitled to summary judg- ment on GunBroker’s claim for breach of fiduciary duty because the agreement expressly disclaimed any fiduciary relationship. GunBroker responded, as to its claim for breach of fiduciary duty, that Tenor was not entitled to summary judgment because the parties’ agreement was void, so GunBroker could not rely on the disclaimer. It also argued that the Investment Advisers Act im- posed fiduciary duties on Tenor in its capacity as an investment ad- viser under Georgia law because Butler held himself out as a law- yer. The district court granted summary judgment on most of the claims. The district court explained that Tenor’s stage-one ser- vices, including performing a valuation of GunBroker, were invest- ment advice under the Investment Advisers Act and that Tenor acted as an unregistered investment adviser when it performed them. The district court therefore found that GunBroker was en- titled to summary judgment on its claim under the Investment Ad- visers Act and to rescission of the agreement. The district court then explained that Tenor was entitled to summary judgment on GunBroker’s Georgia Securities Act claim for a reason not raised by any party: Tenor was a “federal covered investment adviser” under the Georgia Securities Act and was USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 7 of 23
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therefore exempt from registration. Finally, the district court granted summary judgment for Tenor on GunBroker’s breach-of- fiduciary-duty claim based on the fiduciary-duty disclaimer in the agreement. It did not address GunBroker’s argument that the In- vestment Advisers Act imposed fiduciary duties on Tenor. So, after summary judgment only two claims remained: Tenor’s counter- claims for unjust enrichment and attorney’s fees. GunBroker moved for reconsideration of the district court’s summary judgment for Tenor on the Georgia Securities Act claim. GunBroker argued that the district court misapplied Georgia law in finding that Tenor was a federal covered investment adviser be- cause the Georgia Securities Act required Tenor to register with the Securities and Exchange Commission to qualify as one. Tenor responded that even if the exemption for federal covered invest- ment advisers didn’t apply, another exemption did: Tenor wasn’t required to register if it had fewer than six clients in Georgia during the twelve months before it entered into its agreement with Gun- Broker. Tenor attached a declaration from one of its principals that stated it had only four Georgia clients other than GunBroker dur- ing that time. The district court denied the motion for reconsideration. It agreed with GunBroker that Tenor needed to register with the Commission to qualify as a federal covered investment adviser. But the district court also agreed with Tenor that it was exempt from the registration requirement because it had fewer than six USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 8 of 23
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Georgia clients in the twelve months before the parties entered into their agreement. Before trial, Tenor moved to realign the parties to designate itself as the plaintiff because the only remaining claims were its counterclaims. The district court granted the motion over Gun- Broker’s objection. To support Tenor’s unjust-enrichment claim, Butler testi- fied at trial about Tenor’s finance-raising efforts. He confirmed that during stage two Tenor sent the financing memorandum con- taining the valuation to every lender it identified as potentially in- terested in the transaction. GunBroker moved for judgment as a matter of law on Tenor’s unjust-enrichment claim. It argued that Georgia law didn’t allow Tenor to maintain a claim for unjust enrichment to recover the value of services performed under a contract that was void as against public policy. Tenor countered that because it did not act as an investment adviser during its stage-two services, which formed the basis for its unjust-enrichment claim, Georgia law al- lowed it to pursue the claim despite the fact that its stage-one ser- vices rendered the contract void. Before the case was submitted to the jury, GunBroker expanded on its motion for judgment as a mat- ter of law and argued that Tenor’s unjust-enrichment claim failed because Tenor’s efforts to secure financing at stage two necessarily depended on the illegal investment advice and valuation provided at stage one. The district court reserved ruling on the motion. *** USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 9 of 23
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The jury rejected Tenor’s request for attorney’s fees but re- turned a $1.5 million verdict in Tenor’s favor on its unjust-enrich- ment claim. Post-verdict, the district court denied GunBroker’s motion for judgment as a matter of law. It concluded that Georgia law allowed it to sever Tenor’s stage-two services from the stage- one services because the evidence at trial showed that, at stage two, Tenor only sought financing and did not offer any unlawful invest- ment advice.
STANDARDS OF REVIEW We review de novo a district court’s summary judgment, “viewing the evidence and drawing all inferences in the light most favorable to the non-moving party.” Am. Builders Ins. Co. v. S.-Own- ers Ins. Co., 71 F.4th 847, 854 (11th Cir. 2023). We review for abuse of discretion the denial of a motion for reconsideration. Corwin v. Walt Disney Co., 475 F.3d 1239, 1254 (11th Cir. 2007). And “[w]e review de novo the denial of a motion for judgment as a matter of law . . . , viewing the evidence in the light most favorable to the non-moving party.” St. Louis Condo. Ass’n, Inc. v. Rockhill Ins. Co., 5 F.4th 1235, 1242 (11th Cir. 2021). DISCUSSION
We address three claims on appeal. First, we consider the district court’s summary judgment for Tenor on GunBroker’s breach-of-fiduciary-duty claim. Next, we discuss the district court’s summary judgment for Tenor on GunBroker’s Georgia Securities Act claim and related motion for reconsideration. And finally, we USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 10 of 23
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review the denial of GunBroker’s motion for judgment as a matter of law on Tenor’s unjust-enrichment claim.
A. GunBroker’s Breach-of-Fiduciary-Duty Claim GunBroker argues that the district court erred in concluding that there was no fiduciary relationship between the parties based on the disclaimer in the agreement and therefore erred when it granted Tenor summary judgment on GunBroker’s breach-of-fidu- ciary-duty claim. Tenor, GunBroker contends, owed fiduciary du- ties under the Investment Advisers Act because Tenor performed services as an investment adviser. We agree with GunBroker that Tenor owed a fiduciary duty under the Investment Advisers Act. A claim for breach of fiduciary duty under Georgia law has three elements: “(1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” Ray v. Hadaway, 811 S.E.2d 80, 84 (Ga. Ct. App. 2018) (quotation omit- ted). A fiduciary relationship can arise “where one party is so situ- ated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mu- tual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” Douglas v. Bigley, 628 S.E.2d 199, 204 (Ga. Ct. App. 2006) (quoting O.C.G.A. § 23-2-58). “Such relationship may be created by law, contract, or the facts of a particular case.” Id. The relevant duty here was cre- ated by law—the Investment Advisers Act. Section 206 of the Investment Advisers Act, 15 U.S.C. sec- tion 80b-6, “broadly proscribes fraudulent practices by investment USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 11 of 23
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advisers” and “establishes ‘federal fiduciary standards’ to govern the conduct of investment advisers.” Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 16, 17 (1979) (quoting Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 471 n.11 (1977)). The fiduciary duties owed by an investment adviser include “an affirmative duty of utmost good faith, and full and fair disclosure of all material facts, as well as an affirmative obligation to employ reasonable care to avoid misleading his clients.” SEC v. Cap. Gains Rsch. Bureau, Inc., 375 U.S. 180, 194 (1963) (internal quotation marks and footnote call numbers omitted). The Investment Advisers Act imposes these du- ties on any person that meets the definition of an investment advi- sor, regardless of whether that person is registered. See 15 U.S.C. § 80b-6 (imposing the duties on “any investment adviser”); see also Goldstein v. SEC, 451 F.3d 873, 881 (D.C. Cir. 2006) (stating that sec- tion 206 applies to “any investment adviser—registered or not”). At summary judgment, the district court concluded that no fiduciary relationship existed because “GunBroker agreed at the outset that it had no fiduciary relationship with Tenor” when it signed the agreement, which contained a disclaimer that “[n]othing in this [a]greement . . . shall be deemed to create a fiduciary or agency relationship between Tenor and [GunBroker].” If a fiduci- ary relationship “can be created by contract,” the district court rea- soned, “it can be disclaimed by contract.” But the fiduciary relationship between Tenor and GunBro- ker was created by law, not by contract. For summary judgment purposes, the district court found no genuine dispute that Tenor USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 12 of 23
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acted as an investment adviser within the meaning of the Invest- ment Advisers Act. Tenor doesn’t challenge that ruling on appeal. It doesn’t dispute that the Investment Advisers Act imposes a stat- utory fiduciary duty on investment advisers. And any compliance obligations created by the Investment Advisers Act cannot be waived by contract. See 15 U.S.C. § 80b-15(a) (providing that “[a]ny condition, stipulation, or provision binding any person to waive compliance with any provision of [the Investment Advisers Act] . . . shall be void”). So, because Tenor acted as an investment adviser, it owed fiduciary duties to GunBroker under the Investment Ad- visers Act even if the agreement itself did not create any new fidu- ciary duties. Georgia courts often look to federal law to determine whether a duty has been created “by law.” For example, in Wells Fargo Bank, N.A. v. Jenkins, the Supreme Court of Georgia consid- ered whether a provision of the federal Gramm–Leach–Bliley Act imposed a duty that could support a Georgia negligence claim un- der Georgia Code section 51–1–6. See 744 S.E.2d 686, 688 (Ga. 2013). The Supreme Court of Georgia concluded that it did not, but only because the federal provision was a policy statement and did not describe “a legal duty with some ascertainable standard of conduct.” Id.; see also PNC Fin. Servs. Grp., Inc. v. Gibson, 901 S.E.2d 331, 339 (Ga. Ct. App. 2024) (discussing whether fiduciary relation- ship was implied by registration exemption in the Securities and Exchange Act); McLain v. Mariner Health Care, Inc., 631 S.E.2d 435, 437 (Ga. Ct. App. 2006) (“Generally, a plaintiff may assert a claim USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 13 of 23
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of negligence per se arising from violations of federal or state stat- utes . . . .”); Dupree v. Keller Indus., Inc., 404 S.E.2d 291, 294 (Ga. Ct. App. 1991) (holding that duties imposed by Occupational Safety and Health Administration regulations may supply the legal duty required to maintain a claim under Georgia Code section 51–1–6). Here, the Investment Advisers Act imposes “an affirmative duty of utmost good faith, and full and fair disclosure of all material facts, as well as an affirmative obligation to employ reasonable care to avoid misleading his clients,” Cap. Gains, 375 U.S. at 194, an as- certainable standard of fiduciary conduct entirely consistent with Georgia law, see O.C.G.A. § 23-2-58 (defining a “confidential” rela- tionship as one “where . . . the law requires the utmost good faith, such as the relationship between partners; principal and agent; . . . and similar fiduciary relationships”). Tenor points to no authority saying that the “law” creating the fiduciary relationship can’t be a federal one. See Douglas, 628 S.E.2d at 205. And we see no reason why that wouldn’t be the case here as well. Therefore, the district court erred when it determined Tenor did not owe GunBroker a fiduciary duty and granted summary judgment on this claim.
B. GunBroker’s Georgia Securities Act Claim Next, GunBroker challenges the district court’s summary judgment for Tenor on GunBroker’s claim under the Georgia Se- curities Act. Recall that, after the motion for reconsideration, the district court explained that Tenor was exempt from state registra- tion because it had fewer than six Georgia clients. On appeal, Gun- USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 14 of 23
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Broker argues that an exemption from Georgia’s registration re- quirements is an affirmative defense that Tenor waived by not pleading it in its answer. And GunBroker contends the district court shouldn’t have considered this exemption because Tenor never disclosed an intention to rely on it during discovery and raised it only in response to a motion for reconsideration. We find no error in the district court’s consideration of the exemption. The Georgia Securities Act provides that “[i]t is unlawful for a person to transact business in [Georgia] as an investment adviser unless the person is registered . . . as an investment adviser or is ex- empt from registration as an investment adviser . . . .” O.C.G.A. § 10-5-32(a). An investment adviser is exempt from the registration requirement, for example, if “during the course of the preceding [twelve] months,” he “had fewer than six clients in” Georgia. GA. COMP. R. & REGS. 590-4-4.13(1)(b); see also O.C.G.A. § 10-5-32(b)(3). A party generally must raise an affirmative defense in a re- sponsive pleading. See Fed. R. Civ. P. 8(c)(1). “The Supreme Court has held that the purpose of [r]ule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it.” Grant v. Preferred Rsch., Inc., 885 F.2d 795, 797 (11th Cir. 1989). “Failure to plead an affirmative defense generally results in a waiver of that defense.” Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010). But “[a] court may consider an affirmative defense that did not appear in the answer, if the plaintiff has suffered no preju- dice from the failure to raise the defense in a timely fashion.” Mi- randa de Villalba v. Coutts & Co. (USA) Int’l, 250 F.3d 1351, 1353 (11th USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 15 of 23
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Cir. 2001). “Thus, if a plaintiff receives notice of an affirmative de- fense by some means other than pleadings, ‘the defendant’s failure to comply with [r]ule 8(c) does not cause the plaintiff any preju- dice.’” Grant, 885 F.2d at 797 (quoting Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988)). “When there is no prejudice, the trial court does not err by hearing evidence on the issue.” Id. (citing Hassan, 842 F.2d at 263). GunBroker is correct that exemptions to federal securities laws often operate as affirmative defenses. See, e.g., SEC v. GenAudio Inc., 32 F.4th 902, 939 (10th Cir. 2022) (noting that certain exemp- tions “can be asserted as affirmative defenses”); Doran v. Petroleum Mgmt. Corp., 545 F.2d 893, 899 (5th Cir. 1977) (“The defendants do not contest the existence of the elements of plaintiff’s prima facie case but raise an affirmative defense that the relevant transactions came within the exemption from registration . . . .”). But it’s not clear that Georgia law similarly treats a registration exemption as one. For now, we’ll assume that it does because, even if the regis- tration exemption is an affirmative defense under Georgia law, the district court did not err in considering the client-count exemption. Tenor raised the issue only after GunBroker moved the dis- trict court to reconsider its sua sponte determination that Tenor was exempt from registration as a federal covered investment ad- viser. Tenor’s response to GunBroker’s motion for reconsideration was its first opportunity to brief the exemption issue after it had been raised. Tenor then squarely addressed the issue and put Gun- USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 16 of 23
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Broker on notice that it planned to rely on the exemption. Gun- Broker had an opportunity to respond to the client-count-exemp- tion argument in its reply. Had the issue gone to trial, GunBroker would have had ample notice that Tenor intended to rely on the exemption. See Grant, 885 F.2d at 797–98 (finding that the plaintiff had adequate notice of an affirmative defense when the defendant raised it in a motion for summary judgment one month before trial). Because GunBroker had notice that Tenor was relying on this defense, the district court did not abuse its discretion in consid- ering it even though it wasn’t included in Tenor’s answer or dis- 1 covery responses. Id. Notably, GunBroker does not meaningfully dispute that the exemption applies here. GunBroker says there’s a discrepancy be- tween Tenor’s declaration, which said Tenor had four clients in Georgia during the twelve months before the parties entered into their agreement, and the testimony at trial that Tenor serves about ten to twelve clients a year. But there is nothing inconsistent about these statements. One is about Tenor’s clients in Georgia, and the
1 The United States Supreme Court recently granted certiorari to decide whether a defendant raising an unpleaded affirmative defense at summary judgment must show good cause under Federal Rule of Civil Procedure 16(b)(4), or whether an absence of prejudice suffices. See Younge v. Fulton Jud. Cir. Dist. Att’y, No. 25-352, ___ S. Ct. ___, 2026 WL 858458 (U.S. Mar. 30, 2026). Whatever standard the Supreme Court applies, the result will be the same here because both were met. USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 17 of 23
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other is about Tenor’s business as a whole. So, we find no error and affirm the district court on these issues. 2
C. Tenor’s Unjust-Enrichment Claim Finally, GunBroker argues the district court should have granted its motion for judgment as a matter of law because Tenor could not pursue an unjust-enrichment claim to recover on a con- tract voided for illegality. The work Tenor did under stage two of the agreement can’t be “severed” from the illegality of its advisory work at stage one in order to support a claim for unjust enrich- ment. We therefore agree with GunBroker that the district court should have granted its motion for judgment as a matter of law on this claim. “Unjust enrichment is an equitable concept and ‘applies when as a matter of fact there is no legal contract . . . , but when the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefitted party equitably ought to return or compensate for.’” St. Paul Mercury Ins. Co. v. Meeks, 508 S.E.2d 646, 648 (Ga. 1998) (quoting Engram v. En- gram, 463 S.E.2d 12, 15 (1995)). To recover on a claim for unjust enrichment under Georgia law, a plaintiff must demonstrate: (1) “that the defendant induced or encouraged the plaintiff to pro- vide something of value to the defendant”; (2) “that the plaintiff
2 Because we don’t need to decide whether the client-count exemption is an affirmative defense under Georgia law, we deny GunBroker’s motion to cer- tify the question to the Supreme Court of Georgia. USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 18 of 23
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provided a benefit to the defendant with the expectation that the defendant would be responsible for the cost thereof”; and (3) “that the defendant knew of the benefit being bestowed upon it by the plaintiff and either affirmatively chose to accept the benefit or failed to reject it.” Campbell v. Ailion, 790 S.E.2d 68, 73 (Ga. Ct. App. 2016) (citing Crook v. Foster, 775 S.E.2d 286, 289 (2015)). Recovery on an unjust-enrichment claim “may be prohib- ited where the nature of the contract itself rendered it entirely void for being in contravention of public policy in its totality.” Remedi- ation Servs. v. Ga.-Pac. Corp., 433 S.E.2d 631, 637 (Ga. Ct. App. 1993) (collecting cases). So, as a general rule, “[i]f . . . an express agree- ment is unenforceable because it violates public policy, the agree- ment ‘[cannot] be made legal and binding as an implied contract, by merely praying for a recovery on quantum meruit of a portion of the amount expressly agreed upon.’” JR Constr./Elec. v. Ordner Constr. Co., 669 S.E.2d 224, 226–27 (Ga. Ct. App. 2008) (quoting Sapp v. Davids, 168 S.E. 62, 63 (Ga. 1933)). But there’s an exception to the general rule. “[W]here a con- tract is illegal only in part, recovery is allowed on a quantum me- ruit basis for the part of the services which was legal.” Five Star Athlete Mgmt., Inc. v. Davis, 845 S.E.2d 754, 756 (Ga. Ct. App. 2020) (quoting Remediation Servs., 433 S.E.2d at 637). Thus, to determine if a plaintiff can recover on a claim of unjust enrichment under Georgia law when the underlying contract involves illegality, courts conduct a two-step inquiry. First, they ask whether the “na- ture of the transaction” between the parties is “intrinsically illegal” USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 19 of 23
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such that the contract would be “entirely void for being in contra- vention of public policy in its totality.” Remediation Servs., 433 S.E.2d at 637. If so, recovery is barred on an unjust-enrichment or quantum meruit theory. See id. A transaction is intrinsically illegal where its “object or pur- pose is illegal” but not where the “illegality is only collateral or re- motely connected to the contract.” Five Star Athlete, 845 S.E.2d at 756 (quoting Smith v. Saulsbury, 649 S.E.2d 344, 347 (Ga. Ct. App. 2007)). For example, in Five Star Athlete, a contract to provide re- cruiting services to a student athlete by an unregistered athlete agent was void in its entirety because the contract “was for an ille- gal thing: for an unlicensed person [ ] to induce [a student athlete] to enter into an agency contract . . . .” Id. at 757; see also JR Constr., 669 S.E.2d at 226–27 (holding that contract to provide electrical work by unlicensed electrician was void in its entirety and value of goods and services provided were unrecoverable under a theory of unjust enrichment). By contrast, in Shannondoah, Inc. v. Smith, a contract to sell a bar to an unlicensed bar operator was not void in its entirety where it was possible that the bar operator could con- tinue to operate the bar under the seller’s existing license and the contract therefore “did not require a violation of [law] in order . . . to perform under the contract.” 230 S.E.2d 351, 352–53 (Ga. Ct. App. 1976) (emphasis added); see also Remediation Servs., 433 S.E.2d at 637 (contract for dredging services was not inherently illegal where contract was merely voidable at the election of the defend- ant because of an undisclosed dual agency by one of the parties). USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 20 of 23
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Next, if the nature of the transaction was not intrinsically il- legal, courts ask “whether [the] plaintiff requires any aid from the illegal transaction to establish his case” for unjust enrichment. Five Star Athlete, 845 S.E.2d at 757 (quoting Adams v. Trust Co. Bank, 426 S.E.2d 36, 38 (Ga. Ct. App. 1992)). Thus, a plaintiff can’t recover on a claim for unjust enrichment if the claim “depends upon” or “stem[s] from” the illegal transaction. Nayani v. Hassanali, 868 S.E.2d 465, 470, 471 (Ga. Ct. App. 2022); Five Star Athlete, 845 S.E.2d at 757 (finding that the plaintiff could not recover on a theory of unjust enrichment because “the only evidence proffered by” the plaintiff “to establish his claim [was] evidence of [his] illegal . . . ac- tivities”). 3 Tenor cannot recover on its claim for unjust enrichment. First, any contract that “involves” a violation of the Investment Ad- visers Act is automatically void in its entirety as a matter of law. See 15 U.S.C. § 80b-15(b) (providing that “every contract . . . which involves the violation of the [Investment Advisers Act] . . . shall be void [ ] as regards the right of any person who, in violation of [the Investment Advisers Act], shall have made or engaged in the per-
3 GunBroker moved to certify a question to the Supreme Court of Georgia to ask whether the exception to the general rule “accurately reflect[s] Georgia law” and, if it does, to ask about the scope of the exception. Because we don’t have a “‘substantial doubt’ regarding the status of” Georgia law on this issue, we deny the motion. See Peoples Gas Sys. v. Posen Constr., Inc., 931 F.3d 1337, 1340 (11th Cir. 2019) (quoting Fla. VirtualSchool v. K12, Inc., 735 F.3d 1271, 1274–75 (11th Cir. 2013)). USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 21 of 23
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formance of any such contract”). No party disputes that the per- formance of stage one necessarily required “an illegal thing”: for an unlicensed investment adviser to provide investment advice. Five Star Athlete, 845 S.E.2d at 757. Indeed, this was the basis on which the district court, at summary judgment, rescinded the agreement in its entirety. Thus, although the stage-two services were not themselves illegal, the contract was “entirely void for be- ing in contravention of public policy in its totality.” Remediation Servs., 433 S.E.2d at 637. Tenor therefore cannot recover for its stage-two services on an unjust-enrichment theory. Second, Tenor cannot “establish [its] case” for unjust enrich- ment under stage two without “any aid” from the unlawful part of the agreement—the investment advice and valuation under stage one. Five Star Athlete, 845 S.E.2d at 757. To succeed on its claim, Tenor had to show that GunBroker induced or encouraged Tenor to provide something of value, that Tenor provided a benefit to GunBroker with the expectation that GunBroker would be respon- sible for the cost thereof, and that GunBroker knew of the benefit being bestowed upon it by Tenor and either affirmatively chose to accept the benefit or failed to reject it. See Campbell, 790 S.E.2d at 73. Here, the “benefit” or “thing of value” that Tenor provided to GunBroker was identifying, pitching, and negotiating a potential ESOP transaction under stage two. The stage-one services were an integral part of this process. Butler testified that every lender USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 22 of 23
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Tenor approached for the ESOP deal received the financing mem- orandum that Tenor prepared. That financing memorandum in- cluded Tenor’s stage-one valuation and financial analysis as part of the pitch for the deal. Tenor used the work product generated un- der stage one to identify, pitch, and negotiate an ESOP deal under stage two. In other words, Tenor could not generate the benefit or value it provided to GunBroker under stage two without incor- porating the work it performed under stage one. The stage-one work was also a key reason why GunBroker “induced or encour- aged [Tenor] to provide something of value” to GunBroker. Id. The structure of the agreement was that GunBroker would only decide to go forward with stage two based on the investment ad- vice provided under stage one. And Butler testified that the agree- ment was intentionally structured that way so that “if our client receives the work product in that first stage and sees the structur- ing, recommendations that we’ve come up with, that they’re agreeing that they’re going to work with us” on the stage-two fi- nancing raise and stage-three closing. In short, the illegal investment advice provided under stage one was both an integral part of the “benefit” provided under stage two and a key reason why GunBroker “induced or encouraged” Tenor to provide that benefit. Id. Contrary to what Tenor argues, then, we disagree that it doesn’t require any aid from its unlawful investment-advisory services to prove its claim for unjust enrich- ment under stage two. “[T]he only evidence” that Tenor had to establish its claim—evidence of its stage-two services—necessarily USCA11 Case: 22-13911 Document: 49-1 Date Filed: 04/10/2026 Page: 23 of 23
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involved “evidence of [its] illegal” stage-one services. Five Star Ath- lete, 845 S.E.2d at 757. The district court therefore should have granted GunBroker judgment as a matter of law on Tenor’s unjust- enrichment claim.4
CONCLUSION In sum, we affirm the summary judgment for Tenor on GunBroker’s Georgia Securities Act claim. But we reverse the summary judgment for Tenor on GunBroker’s breach-of-fiduciary- duty claim and remand for further proceedings. And we reverse the judgment for Tenor on its unjust-enrichment claim and re- mand for the district court to enter judgment for GunBroker on that claim. We leave to the district court’s discretion GunBroker’s request to realign the parties to their original positions. AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
4 GunBroker raises two other issues related to this claim: that the district court gave an improper instruction to the jury and that the district court should have investigated potential juror misconduct following the trial. Because we agree with GunBroker that the district court should have granted judgment as a mat- ter of law on the only claim it didn’t prevail on at trial, we don’t reach either issue. And because we don’t reach the jury instruction issue, GunBroker’s motion to certify the issue to the Supreme Court of Georgia is denied as moot.