Corporate & Securities Law

More on Whole Foods

By Manfred Gabriel

As we have reported here before, the D.C. Circuit recently overturned the district court’s ruling in FTC v. Whole Foods, holding that it was legal error to consider only marginal customers in assessing whether the FTC had met its burden for a preliminary injunction, since “core customers,” under the Brown Shoe practical indicia, could form a submarket for purposes of Section 7 Clayton Act.

Whole Foods has now filed a motion for rehearing en banc. In its motion, Whole Foods argues that the D.C. Circuit panel, particularly the majority of Judges Brown and Tatel, erred in three respects:

• The standard that an injunction should be granted unless the FTC “entirely failed” to show a likelihood of success on the merits conflicts with D.C. Circuit precedents, as well as with other decisions of other circuits;
• The analysis of the standard for product markets was wrong; and
• The D.C. Circuit should have considered Whole Food’s arguments regarding the transaction’s likely effect on competition.

Whole Foods earlier this week filed another motion, “to disqualify the Commission as administrative law judge and to appoint a presiding official other than a Commissioner.”

The motion for rehearing en banc is here, and the motion for another administrative law judge is here.

Full post as published by Antitrust Review on August 27, 2008 (boomark / email).