Corporate & Securities Law

FTC v. Whole Foods to Settle?

By Manfred Gabriel

The FTC has agreed to stay its Part III administrative proceedings against Whole Foods for 5 days to permit settlement discussion. At issue in the administrative proceedings is the legality under Section 7 Clayton Act of the acquisition Wild Oats by Whole Foods Markets, a merger that was consummated in Fall of 2007 after the FTC had lost its preliminary injunction motion in the D.C. district court (a decision that has since been reversed and remanded by the D.C. Circuit Court of Appeals). As the Global Competition Review reports ($):

“We’re going to roll our sleeves up and look very hard at what Whole Foods has to propose,” says David Wales, acting chief of the FTC’s bureau of comptition. Jim Sud, executive vice president of growth and development for Whole Foods, says the company “welcomes this opportunity to hold constructive discussions directly with the commissioners as well as the FTC’s attorneys.”

The FTC’s order is here. In it the FTC granted the 5-day suspension but denied Whole Foods motion to treat the motion as non-public. (The FTC has not made the terms of the proposed consent agreement public, however.) The order states:

With regard to Respondent?s request for non-public treatment of its motion and attachments thereto, pursuant to Rule 3.25(b), Respondent?s proposed Agreement Containing Consent Order and proposed Decision and Order will not be placed on the public record unless and until accepted by the Commission. We can discern no good reason, however, for according non-public treatment to Respondent?s motion and other attachments. There is a strong presumption that the public has a right to know what is happening in the Commission?s litigation, and Respondent has made no showing to justify keeping these materials off the public record.

Full post as published by Antitrust Review on January 29, 2009 (boomark / email).