LOWENSCHUSS v. KANE

Nos. 497, 498, Dockets 74-2156, 74-2216.

520 F.2d 255 (1975)

Fred LOWENSCHUSS, Trustee for Fred Lowenschuss Associates Pension Plan, Individually and on behalf of all other persons and shareholders of Great Atlantic & Pacific Tea Co., Inc. who are similarly situated, Plaintiff-Appellant, v. W. J. KANE et al., Defendants-Appellees, Rachel C. Carpenter, Appellant.

United States Court of Appeals, Second Circuit.

Decided May 27, 1975.


Attorney(s) appearing for the Case

Charles Sovel, New York City (Abraham E. Freedman, New York City, Fred Lowenschuss, William D. Parry, Robert P. Snyder, Fred Lowenschuss Associates, Philadelphia, Pa., of counsel), for plaintiff-appellant.

Milton Paulson, New York City, for appellant Carpenter.

John A. Guzzetta, New York City (Bernhardt K. Wruble, Anthony E. Satula, Jr., Dennis G. Jacobs, Simpson Thacher & Bartlett, New York City, of counsel), for defendants-appellees Gulf & Western Industries, Inc. and C. G. Bluhdorn.

Mark I. Fishman, New York City (William E. Willis, Sullivan & Cromwell, New York City, of counsel), for defendant-appellee Kidder, Peabody & Co., Inc.

Before MANSFIELD, OAKES and TIMBERS, Circuit Judges.


MANSFIELD, Circuit Judge:

The central issue on this appeal is whether a stockholder who has tendered his shares in response to a tender offer may recover damages from the offeror for failure to consummate the transaction where the failure is attributable to the intervening issuance by the court of a preliminary injunction barring the proposed acquisition. We must also decide whether genuine issues of material fact were presented which precluded summary judgment dismissing...

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