Corporate & Securities Law

Whole Food’s Denied Rehearing But D.C. Circuit Amends Its Earlier Decision

By Matthew S. Wild

On November 21, 2008, the United States Court of Appeals for the D.C. Circuit denied rehearing and rehearing en banc in FTC v. Whole Foods with Judge Kavanaugh dissenting.  Judge Kavanaugh had dissenting in the original decision.  The original opinion is linked to the July 29, 2008 Post, which also analyzes it.  On November 21, the court also issued a revised and amended decision.  The revision and amended decision is particularly interesting because it clarifies that Judge Tatel concurred only in the judgment and not in Judge Brown?s opinion.  (Whole Food?s Amended Decision )  As a result, it has become clear that Judge Brown?s opinion has no binding affect on the rest of the Court.  Judges Ginsburg and Sentelle voted against 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?).?  (Whole Food?s Rehearing Denial)

Full post as published by Antitrust Commentary on December 01, 2008 (boomark / email).