The Federal Trade Commission (FTC), continuing to challenge the merger of Whole Foods Market, Inc. with Wild Oats Markets, Inc, has reportedly indicated in court filings that it will seek a court order requiring Whole Foods to rename the Wild Oats stores that were changed into Whole Foods stores and rebrand them as Wild Oats. The FTC also apparently said that a trustee should be appointed to separately manage Wild Oats assets to preserve the status quo in the organic foods market until all legal proceedings have concluded. The $565 million
merger has been completed, but the FTC convinced an appeals court in 2008 to allow the administrative antitrust proceedings to resume. Responding to the latest filing, Whole Foods reportedly stated, “Not only have they found us guilty before the final evidence is in, now they want to impose a burdensome remedy even before the first word of final evidence is in.” More information about the case can be found in issue 285 of this Update.

In a related development, Whole Foods has filed motions seeking to force about two dozen of its competitors to comply with subpoenas for documents, such as sales data, marketing plans and internal emails and memos, needed to support Whole Foods’ antitrust defense. Whole Foods issued the subpoenas in October 2008 to more than 93 grocers and vendors nationwide in an effort to obtain information that will prove that competition is robust in 29 markets that the FTC identified as compromised by the merger. According to a news source, Whole Foods is having difficulty securing the proprietary information it needs, despite promising to protect the documents from disclosure to
Whole Foods employees. See The Oregonian, January 13, 2009.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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