Whole Foods resubmits petition against FTC

Whole Foods Market resubmits petition against FTC to an appeals court

• On 7:29 am EST, Friday January 16, 2009

AUSTIN, Texas (AP) -- Whole Foods Market Inc. said it resubmitted its petition against the Federal Trade Commission in a Washington D.C. appeals court so a decision related to its acquisition of Wild Oats Markets Inc. could be made faster.

"Whole Foods Market is interested in getting to the merits of this case as quickly as possible rather than spending everyone's valuable time and resources arguing about jurisdiction," Jim Sud, executive vice president of growth and business development for Whole Foods Market, said in a statement late Thursday.

The natural grocer sued the FTC last month, claiming the regulator violated its due process rights in a dispute over its acquisition of rival Wild Oats.

Whole Foods purchased Wild Oats of Boulder, Colorado in 2007 for $565 million. But since then, the deal has been embroiled in an antitrust challenge that has Austin, Texas-based Whole Foods' biggest acquisition in legal limbo.

The FTC thought the deal could create a natural food monopoly, but federal judges determined the acquisition could move forward. More than a year later, as Whole Foods was already swapping out signs and training staff, an appeals court decision threw it all back into question.

The FTC is conducting administrative proceedings in the case that are scheduled to go to trial in April. The proceedings are intended to be an impartial inquiry into whether a deal violates antitrust laws.

Whole Foods said that it voluntarily withdrew its case from the district court and refiled it with the U.S. Court of Appeals for the D.C. Circuit.

The company is asking the court to stop the FTC from conducting a trial because it claims the regulator is already biased against Whole Foods and will not give the company enough time to get ready for the administrative trial.

Whole Foods also claims that businesses that come under the FTC's oversight face different "standards of justice" than those under the Department of Justice.

Companies fall under the FTC or Justice Department's realm based on various criteria when it comes to mergers, acquisitions and antitrust issues in the U.S. But they face slightly different processes for scrutiny under each body.

The key difference is that the Justice Department simply asks for a permanent injunction, which is a one-step effort to stop the deal; the FTC can seek a preliminary injunction, then an administrative proceeding, which can then be appealed to a circuit court if necessary.

With Whole Foods, the FTC lost a preliminary injunction and began an administrative trial 18 months later.

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