TOPS MARKETS, INC. v. QUALITY MARKETS, INC.

Docket Nos. 97-7392, 97-7448.

142 F.3d 90 (1998)

TOPS MARKETS, INC., Plaintiff-Appellant-Cross-Appellee, v. QUALITY MARKETS, INC.; The Penn Traffic Company; Sunrise Properties, Inc., Defendants-Appellees, James V. Paige, Jr., Defendant-Appellee-Cross-Appellant.

United States Court of Appeals, Second Circuit.

Decided April 9, 1998.


Attorney(s) appearing for the Case

Edward C. Cosgrove, Buffalo, NY, for Plaintiff-Appellant Tops Markets, Inc.

Kenneth N. Hart, New York City (Vanessa E. Brosgol, Donovan Leisure Newton & Irvine, New York City; Charles C. Swanekamp, Saperston & Day, P.C., Buffalo, NY, of counsel), for Defendants-Appellees Quality Markets, Inc., The Penn Traffic Company and Sunrise Properties, Inc.

David J. Seeger, Buffalo, NY, for Defendant-Appellee James V. Paige, Jr.

Before: FEINBERG, CARDAMONE, and WALKER, Circuit Judges.


CARDAMONE, Circuit Judge:

On this appeal from a dismissal of an antitrust complaint, we affirm all but one of the district court's rulings. We conclude that plaintiff's claim of attempted monopolization presents a genuine issue of material fact and should not have been dismissed. In ruling on this sort of cause of action it is important to distinguish aggressive competition from the kind of predatory conduct that tends to destroy competition. A wise insight suggests...

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