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Court Decision on Whole Foods/Wild Oats

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Court Decision on Whole Foods/Wild Oats Page 1 2 of 3 DOCUMENTS FEDERAL TRADE COMMISSION, Plaintiff, v. WHOLE FOODS MARKET, INC., and WILD OATS MARKETS, INC., Defendants. Civil Action No. 07-1021 (PLF) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2007 U.S. Dist. LEXIS 61331 August 16, 2007, Decided August 16, 2007, Filed PRIOR HISTORY: FTC v. Whole Foods Mkt., Inc., For WEGMANS FOOD MARKETS, INC., Movant: 2007 U.S. Dist. LEXIS 53567 (D.D.C., July 6, 2007) [*2] Christopher James MacAvoy, LEAD ATTORNEY, HOWREY, LLP, Washington, DC. COUNSEL: [*1] For FEDERAL TRADE COMMISSION, Plaintiff: Michael Bloom, LEAD For TARGET CORPORATION, Movant: John E. ATTORNEY, Amanda L. Wait, Catharine Mary Schmidtlein, LEAD ATTORNEY, WILLIAMS & Moscatelli, Eric Matthew Sprague, Marilyn E Kerst, CONNOLLY LLP, Washington, DC. Matthew James Reilly, Reid Brian Horwitz, Thomas H. Brock, Thomas J. Lang, FEDERAL TRADE For AMERICAN ANTITRUST INSTITUTE, COMMISSION, Washington, DC. CONSUMER FEDERATION OF AMERICA, ORGANIZATION FOR COMPETITIVE MARKETS, For WHOLE FOODS MARKET, INC., Defendant: Amici: David Alan Balto, LEAD ATTORNEY, DAVID Alden Lewis Atkins, John Martin Faust, John David A BALTO, Washington, DC. Taurman, Neil W. Imus, LEAD ATTORNEYS, VINSON & ELKINS, LLP, Washington, DC; Paul H. Friedman, For TRADER JOE'S COMPANY, Intervenor: Karin Rebecca Powers Dick, LEAD ATTORNEYS, James A. Fleming Richard Moore, LEAD ATTORNEY, Richard Fishkin, Jeffrey W. Brennan, Michael D. Farber, Paul T. G. Parker, O'MELVENY & MYERS, LLP, Washington, Denis, DECHERT LLP, Washington, DC. DC. For WILD OATS MARKETS, INC., Defendant: Clifford For WAL-MART STORES, INC., Intervenor: Darren Hank Aronson, LEAD ATTORNEY, Matthew P. Scott Tucker, LEAD ATTORNEY, O'MELVENY & Hendrickson, Thomas Pak, SKADDEN, ARPS, SLATE, MYERS, LLP, Antitrust/Competition Practice, MEAGHER & FLOM, LLP, New York, NY; Alden Washington, DC; Michael E. Antalics, LEAD Lewis Atkins, VINSON & ELKINS, LLP, Washington, ATTORNEY, O'MELVENY & MYERS, LLP, DC; Gary Alan MacDonald, SKADDEN, ARPS, SLATE, Washington, DC. MEAGHER & FLOM, LLP, Washington, DC; Michael For PUBLIX SUPER MARKETS, INC., SUPERVALU D. Farber, DECHERT LLP, Washington, DC; Terrence J INC, Intervenors: Christopher James MacAvoy, LEAD Wallock, LAW OFFICE OF TERRENCE J. WALLOCK, ATTORNEY, HOWREY, LLP, Washington, DC. Corona Del Mar, CA. For KROGER CO., Intervenor: Deborah L Feinstein, For DELHAIZE AMERICA. INC., Interested Party: LEAD ATTORNEY, ARNOLD & PORTER, Daniel Ferrel McInnis, LEAD ATTORNEY, AKIN, Washington, DC; Justin Sanjeeve Antonipillai, LEAD GUMP, STRAUSS, HAUER & FELD, L.L.P., ATTORNEY, ARNOLD & PORTER, LLP, Washington, Washington, DC. DC. Page 2 2007 U.S. Dist. LEXIS 61331, *2 For SAFEWAY INC., Intervenor: Edward Marcellus 1 The papers submitted to the Court in Williamson, Peter Lee Winik, LEAD ATTORNEYS, connection with this proceeding include: LATHAM & WATKINS, Washington, DC; Alexander plaintiff's Motion for Temporary Restraining Maltas, LATHAM & WATKINS LLP, Washington, [*3] Order and Preliminary Injunction ("Mot."); DC. plaintiff's Memorandum in Support of Motion for Temporary Restraining Order and Preliminary For APOLLO MANAGEMENT HOLDING LP, Injunction ("TRO Mem."); Plaintiff's Corrected Intervenor: Jonathan M. Rich, LEAD ATTORNEY, Brief on its Motion for Preliminary Injunction MORGAN, LEWIS & BOCKIUS LLP, Washington, DC; ("PI Mem."); Joint Memorandum of Points and John Shin, MORGAN LEWIS & BOCKIUS LLP, New Authorities of Whole Foods Market, Inc. and York, NY. Wild Oats Markets, Inc. in Opposition to Motion for Preliminary Injunction ("Opp."); Plaintiff's For H.E. BUTT GROCERY COMPANY, Intervenor: Response Brief ("Pl's Reply"); Joint Reply Joseph J. Simons, LEAD ATTORNEY, PAUL, WEISS, Memorandum of Points and Authorities [of RIFKIND, WHARTON & GARRISON LLP, Litigation, defendants] in Opposition to Motion for Washington, DC. Preliminary Injunction ("Defs' Reply"); For WINN-DIXIE STORES INC, Intervenor: Kristen Defendants' Joint Proposed Findings of Fact and Ceara Limarzi, LEAD ATTORNEY, KING & Conclusions of Law ("Defs' FOF"); and Plaintiff's SPALDING, LLP, Washington, DC. Proposed Findings of Fact and Proposed Conclusions of Law ("Pl's FOF" and "Pl's COL"). JUDGES: PAUL L. FRIEDMAN, United States District 2 The parties reached an agreement with respect Judge. to the issuance of a temporary restraining order during the pendency [*5] of this preliminary OPINION BY: PAUL L. FRIEDMAN injunction proceeding, and the Court signed and entered the stipulated temporary restraining order OPINION on June 7, 2007. This lawsuit has been litigated on a very fast track. PUBLIC VERSION Fact discovery took place in the space of 30 days, expert reports were exchanged three days after the close of fact OPINION discovery, and rebuttal expert reports and expert depositions took place within nine days thereafter. Initial This matter is before the Court on plaintiff's motion briefs were filed two days later and reply briefs five days for a preliminary injunction. 1 Plaintiff, the Federal Trade after that. The Court held a two-day hearing six days Commission ("FTC"), filed this lawsuit on June 6, 2007 later. The parties' respective economists, Dr. Kevin M. seeking to enjoin defendant Whole Foods Market, Inc. Murphy and Dr. David T. Scheffman, Jr., were examined from acquiring defendant Wild Oats Markets, Inc. during by counsel and by the Court on July 31, 2007, and the pendency of an administrative proceeding to be counsel presented their final arguments on the record in commenced by the FTC pursuant to Sections 7 and 11 of Court on August 1, 2007. the Clayton Act, 15 U.S.C. §§ 18, 21, and Section 5(b) of the Federal Trade Commission Act ("FTCA"), 15 U.S.C. The evidence presented by the parties consists of: (1) § 45(b). See Complaint at 2, 6. 2 The FTC believes that transcripts of the testimony of 13 lay witnesses taken by the acquisition of Wild Oats by Whole Foods "would the FTC at investigational hearings before it filed suit; (2) violate Section 7 of the Clayton Act and Section 5 of the transcripts of the deposition testimony of 22 lay Federal Trade [*4] Commission Act because [it] may witnesses and five expert witnesses taken after suit was substantially lessen competition and/or tend to create a filed; 3 (3) the declarations of 16 lay witnesses submitted monopoly in the operation of premium natural and by defendants and of one lay witness submitted by organic supermarkets across the United States." plaintiff; 4 (4) the expert reports (and [*6] exhibits Complaint P 15. thereto) of five expert witnesses; (5) 19 volumes of exhibits submitted by plaintiff, consisting of Page 3 2007 U.S. Dist. LEXIS 61331, *6 approximately a total of 700 exhibits; (6) 27 volumes of Delaware corporation founded in 1987 and headquartered exhibits submitted by defendants, consisting of 811 in [*8] Colorado. Wild Oats operates approximately 110 exhibits; and (7) the examination and cross-examination stores in the United States and Canada. Both firms are of two of the expert witnesses in Court -- Dr. Kevin M. engaged in the business of selling grocery products, with Murphy and Dr. David T. Scheffman, Jr. The Court has an emphasis on natural and organic foods. In February also considered the written and oral arguments presented 2007, the defendants announced that Whole Foods by counsel and the exhibits and demonstrative exhibits planned to acquire Wild Oats, and the two companies used in connection with their arguments. entered into a formal merger agreement on February 21, 2007. 3 Some of the lay witnesses were examined both at investigational hearings and at depositions. The FTC alleges that the "operation of premium 4 All but two of the declarations submitted by natural and organic supermarkets is a distinct 'line of defendants were of officers or employees of commerce' within the meaning of Section 7 of the Whole Foods or Wild Oats. The Court agrees with Clayton Act." Complaint P 34. The FTC further alleges plaintiff that these declarations, prepared for the that Whole Foods and Wild Oats are "the only two purpose of litigation by defendants, should be nationwide operators of premium natural and organic viewed with caution and should be given less supermarkets in the United States[,]" and "are one probative force than depositions taken of the same another's closest competitor in twenty-one geographic persons who were then subject to markets." Id. PP 37-38. According to the FTC, cross-examination. Such declarations are entitled "[c]onsumers in those markets have reaped price and to little weight to the extent they are "in conflict non-price benefits of competition between Whole Foods with contemporaneous documents." United States and Wild Oats." Id. P 38. "[T]hose benefits will be lost if v. Gypsum Co., 333 U.S. 364, 396, 68 S. Ct. 525, the acquisition occurs in the markets where the two 92 L. Ed. 746 (1948). currently compete and they will not occur in those markets where each is planning to expand." Id. P 42. The fast track on [*7] which this litigation has proceeded has put immense pressure on counsel for the II. LEGAL FRAMEWORK parties and their teams who, despite these pressures, have all acted professionally, civilly, effectively, and in a Section 13(b) of the Federal [*9] Trade Commission timely manner in presenting their evidence and argument. Act provides: Unfortunately, the Court, too, has had to act under severe time constraints (and with fewer resources than counsel Whenever the Commission has reason to has had) in evaluating the evidence and arguments, believe . that any person, partnership, or reaching its decision and attempting quickly to articulate corporation is violating, or is about to that decision in a reasonably thorough and violate, any provision of law enforced by comprehensible opinion -- so as to provide the losing side the Federal Trade Commission, and . (as the Court promised it would) sufficient time to that the enjoining thereof pending the proceed promptly to the court of appeals for a decision issuance of a complaint by the before the consummation of the proposed merger, Commission and until such complaint is scheduled for August 31, 2007.
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