Thursday, January 29, 2009

FTC Proceedings on Whole Foods/Wild Oats Merger on Hold to Consider Settlement

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The Federal Trade Commission has temporarily halted its administrative proceedings challenging the combination of specialty grocers Whole Foods Market, Inc. and Wild Oats Markets, Inc. to consider a proposed settlement.

At the request of Whole Foods, the Commission on January 28 withdrew the matter from adjudication for five business days—until February 5—for the purpose of considering a proposed consent agreement. The proceedings can resume after that date.

It is unlikely that the settlement negotiations, if unsuccessful, will substantially delay the proceedings. The administrative trial is set to begin on April 6, 2009, and the Commission has in the past expressed its intention to keep the proceedings on schedule. Earlier requests by Whole Foods to push back the trial have been denied.

The FTC unsuccessfully attempted to block Whole Foods’ acquisition of Wild Oats in 2007. The transaction was consummated after a federal district court denied the agency’s request for a preliminary injunction pending an administrative proceeding (2007-2 Trade Cases ¶75,831). Administrative proceedings resumed after the U.S. Court of Appeals in Washington, D.C. reversed the district court’s denial of injunctive relief (2008-2 Trade Cases ¶76,233).

The terms of Whole Foods’ proposed settlement were not released. The Commission granted in part the company’s request for non-public treatment of the Agreement Containing Consent Order and proposed Decision and Order.

The order withdrawing the matter from adjudication until February 5 appears here at the FTC website.

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