Kerry M. Gough, Trustee in Bankruptcy of Louis Rosen, D/B/A Walnut Creek Furniture v. Rossmoor Corporation, and Crestmark Carpet and Drapery Company

The question on appeal is whether, absent a definition of the relevant market, the record supports a judgment that appellants violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 , 2. We hold that it did not and reverse judgment of the district court.

THE CAST

Rossmoor Leisure World (Leisure World) is a co-operative housing development for retired adults, located in Walnut Creek, California.

*383 Rossmoor Corporation (Rossmoor) is the builder and developer of Leisure World.

Leisure World Foundation (the Foundation) is a nonprofit corporation established to perform administrative services for the residents of Leisure World and also to perform organizational, promotional and sales functions for Rossmoor. In order to meet the requirements for securing FHA financing for construction of the housing, the Foundation is formally independent of Rossmoor. 1 (Title to the community recreational facilities is held in trust by another independent foundation that appears less frequently in the ease: the Golden Rain Foundation.)

Crestmark Carpet and Drapery Company (Crestmark) is a wholly owned subsidiary of Rossmoor, formed for the purpose of selling carpets and draperies to the Leisure…

concurring:

I concur in the majority opinion. However, I must make one observation about the extent of proof necessary to establish an attempt to monopolize claim. I agree with my Brothers that three elements are necessary for a prima facie claim: (1) specific intent to control prices or destroy competition with respect to a part of commerce, (2) predatory or anticompetitive conduct directed to accomplishing the unlawful purpose, and (3) a dangerous probability of success. We have so held in Janich Bros., Inc. v. American Distilling Co., 570 F.2d 848, 853 (9th Cir. 1977), and Marquis v. Chrysler Corp., 577 F.2d 624, 641 (9th Cir. 1978). 1

But in Greyhound Computer Corp. v. International Business Machines, 559 F.2d 488, 504 (9th Cir. 1977), cert. denied, 434 U.S. 1040 , 98 S.Ct. 782 , 56 L.Ed.2d 790 (1978), we held that only two elements were necessary. We stated that “[a] prima facie case of attempt to monopolize is made out by evidence of a specific intent to monopolize ‘any part’ of commerce [element (1)], plus anticompetitive conduct directed to the accomplishment of that unlawful purpose [element (2)].” Id.

However, by holding that Crestmark’s actions were neither predatory…

585 F.2d 381 1978-2 Trade Cases 62,202 Kerry M. GOUGH, Trustee in Bankruptcy of Louis Rosen, d/b/a Walnut Creek Furniture, Plaintiffs-Appellees, v. ROSSMOOR CORPORATION, and Crestmark Carpet and Drapery Company, Defendants-Appellants. No. 77-2047. United States Court of Appeals, Ninth Circuit. Aug. 9, 1978. Rehearing and Rehearing En Banc Denied Oct. 27, 1978. James E. Harrington (argued), of Pettit, Evers & Martin, San Francisco, Cal., for defendants-appellants. Maxell Keith (argued), San Francisco, Cal., for plaintiffs-appellees. On Appeal from the United States District Court for the Northern District of California. Before MERRILL, KILKENNY and CHOY, Circuit Judges. MERRILL, Circuit Judge: 1 The question on appeal is whether, absent a definition of the relevant market, the record supports a judgment that appellants violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 , 2. We hold that it did not and reverse judgment of the district court. THE CAST 2 Rossmoor Leisure World (Leisure World) is a co-operative housing development for retired adults, located in Walnut Creek, California. 3 Rossmoor Corporation (Rossmoor) is the builder and developer of…