The Requirement of Market Impact In discussing misleading advertising under Section 2, courts have emphasized that the practice would not violate the antitrust laws absent the requisite market impact. See Berkey Photo v. We are not aware of any case finding that a false product preannouncement had the required market impact. The Court also has asked whether an undisclosed intent to defeat a competitor might render an otherwise truthful product preannouncement misleading so as to alter its status under the antitrust laws. The case law provides little support for finding liability on the basis of intent in the absence of underlying conduct otherwise deemed exclusionary.
Vigorous competitors intend to harm rivals, to do all the business if they can.
To penalize this intent is to penalize competition. Ball Memorial Hosp. The Department, after thorough investigation, filed the Complaint herein alleging violations of law based on Microsoft's licensing practices. It did not at that time find a legal basis upon which to include other claims, including vaporware, based on evidence then available to it, including documents presented to the Court in this proceeding. The government, as prosecutor, has the discretion to determine whether it believes a cognizable claim has been made out on the facts known to it.