Corporate & Securities Law

Whole Foods: Rehearing En Banc Denied

By Manfred Gabriel

The D.C. Circuit Court of Appeals issued an order today denying Whole Food’s petition for a rehearing en banc. We have posted about the case here, here, here, and here. It will be no comfort to the defendant that the Circuit granted the unusual motion for leave to file a reply (which was written by Ted Olson). The denial of a rehearing means that the panel’s decision remanding the FTC’s petition for a preliminary injunction to the district court stands, and that we can expect further insight into whether the FTC met the newly-confused standard for a preliminary injunction that will guide the district court (in this particular case).

Meanwhile, the FTC is pursuing administrative proceedings on the substance of the alleged §7 violation before Administrative Law Judge Michael Chappell.

Here is the text of the order denying rehearing:

The petition of appellee Whole Foods Market, Inc. (”Whole Foods”) for rehearing en banc was circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing and the motion of Whole Foods for leave to file a reply, the opposition thereto, and the lodged reply, it is ORDERED that the motion for leave to file a reply be granted. The Clerk is directed to file the lodged reply. It is FURTHER ORDERED that the petition be denied.

Judge Ginsburg along with Judge Sentelle issued a concurrence to the denial of rehearing which stated:I concur in the denial of rehearing en banc because, there being no opinion for the Court, that judgment sets no precedent beyond the precise facts of this case. See King v. Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991) (en banc) (”without implicit agreement” among a majority of the judges “we are left without a controlling opinion”).

An amended version of the panel decision, also issued today, is here. HT to AT-CONVERSATION listserve.

Full post as published by Antitrust Review on November 21, 2008 (boomark / email).