Whole Foods Sues FTC

In Once-Every-Fifty-Years Case, Whole Foods Sues FTC, Am. Lawyer, Dec. 10, 2008 (law.com).

The FTC opposed the merger of Whole Foods Market and Wild Oats Marketplace in the summer of 2007, so it sought a preliminary injunction. The district court denied the motion. The FTC went to the D.C. Circuit to get an injunction pending appeal. Denied. So the deal went ahead. The FTC still appealed the district court's denial of an injunction, and in July the D.C. Circuit reversed and remanded. Federal Trade Comm'n v. Whole Food Market, Inc., No. 07-5276 (D.C. Cir. July 29, 2009, amended and reissued Nov. 21, 2008).

Now, American Lawyer reports:

Now, the Whole Foods legal team from Orrick, Herrington & Sutcliffe, Dechert and new addition Constantine Cannon is trying something it says hasn't been attempted in half a century -- suing the FTC.

The Whole Foods team, which says the company has already spent $16.5 million on legal fees and other costs related to winning approval of the deal, says the FTC is so biased against the merger that it should be prohibited from reviewing it.

Additionally, the grocer's lawyers say, new FTC rules that call for an expedited discovery process put Whole Foods at an unfair disadvantage by giving the company just five months to prepare its case (Whole Foods wants an additional ten months).

A press release from Whole Foods (Dec. 8) is here. The FTC has lots of documents related to its investigation and the litigation here.

See also Whole Foods Returns FTC's Fire: Grocer Files Rare Suit Against U.S. Agency in Fight Over Wild Oats Merger, Wall St. J., Dec. 9, 2008.