concurring in the judgment:
I agree with the majority that the judgment of the district court should be affirmed. I would not premise that affirmance, however, upon the proposition that there is no genuine issue of material fact posed by my colleagues' conclusion that “Viacom was not damaged by the transaction” with Icahn on May 21, 1986.
It is undisputed that the market price at which Viacom’s common stock traded publicly on that date, when Viacom paid $79.50 per share for Ieahn’s holdings, was $62.00 per share. It may well be, as the majority concludes, that the real value of the stock on that date nonetheless exceeded $79.50 per share, and that the evidence marshalled by the majority in support of that conclusion should be regarded as persuasive. In my view, however, it falls short of establishing that proposition as a matter of law, which Fed.R.Civ.P. 56(c) requires for an award of summary judgment, particularly since “fairness of consideration is generally a question of fact.” Klein v. Tabatchnick, 610 F.2d 1043, 1047 (2d Cir.1979) (collecting cases).
I nonetheless agree that the summary judgment granted by the district court to defendants-appellees should be affirmed, because in my view plaintiffs-appellants have established no basis for RICO liability. Plaintiffs-appellants pled two predicate acts of securities fraud in violation of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j (1988), and rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5 (1991); and a series of alleged violations of the Hobbs Act, 18 U.S.C. § 1951 (1988). Relying, inter alia, upon rulings in the Fourth and Eighth Circuits, see International Data Bank, Ltd. v. Zepkin, 812 F.2d 149, 151-54 (4th Cir.1987); Brannan v. Eisenstein, 804 F.2d 1041, 1045-46 (8th Cir.1986), the district court ruled that Viacom had no standing to assert the securities fraud claims under RICO because it was not a purchaser or seller of the securities in question. See Viacom Int’l Inc. v. Icahn, 747 F.Supp. 205, 210 (S.D.N.Y.1990). The Third, Ninth, and Eleventh Circuits take the view, on the contrary, that a RICO plaintiff has standing if “injured in his business or property by reason of” a securities fraud within the meaning of 18 U.S.C. § 1964(c) (1988), whether or not a purchaser or seller. See Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 285-86 (3d Cir.1991); Pelletier v. Zweifel, 921 F.2d 1465, 1510 n. 80 (11th Cir.1991); Securities Investor Protection Corp. v. Vigman, 908 F.2d 1461, 1465-67 (9th Cir.1990), cert. granted on this question, — U.S. -, 111 S.Ct. 1618, 113 L.Ed.2d 716 (1991).
In any event, the securities fraud predicates in the amended complaint herein are alleged to have been perpetrated by Icahn against two entirely unrelated companies in 1979 and 1980. Viacom was neither a pur*1003chaser or seller in those transactions, and suffered no injury to its business or property as a result of them. Further, to the extent that Viacom asserts new theories of securities fraud on appeal, I would not entertain securities fraud claims that were not properly presented below. See, e.g., In re Cooper/T. Smith (Abshire v. Gnots-Reserve, Inc.), 929 F.2d 1073, 1078 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 190, 116 L.Ed.2d 151 (1991); Schwimmer v. Sony Corp. of Am., 637 F.2d 41, 49 (2d Cir.1980); McPhail v. Municipality of Culebra, 598 F.2d 603, 607 (1st Cir.1979); Capps v. Humble Oil & Ref. Co., 536 F.2d 80, 82 (5th Cir.1976). Finally, I am in essential agreement with the district court’s analysis that Viacom’s allegations of Hobbs Act violations are inadequate to state a claim. See 747 F.Supp. at 210-14. I accordingly join in the judgment of af-firmance.