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Merger indigestion

This article was originally published in The Tan Sheet

Executive Summary

The U.S. Court of Appeals for the District of Columbia Circuit reverses a district court ruling that denied a Federal Trade Commission injunction against Whole Foods' purchase of Wild Oats Markets. According to the July 29 1decision, the lower court erred in finding the merger could not result in a monopoly in any relevant product market because FTC would never be able to adequately define the "premium, natural and organic supermarkets" sector. The appeals decision says the district court "underestimated" the likelihood in FTC defining the PNOS market. FTC's general counsel July 30 said Whole Foods can seek a rehearing in the D.C. circuit before the same panel or en banc, submit a writ of certiorari to be heard by the Supreme Court or return to the district court to argue the case under the guidelines set in the appeals court decision. No ruling yet has ordered a halt to Whole Foods' $565 million purchase of Wild Oats, which was completed in September 2007 (2"The Tan Sheet" Sept. 3, 2007, In Brief)...

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The U.S. District Court for the District of Columbia rules Jan. 8 that the Federal Trade Commission showed the "likelihood of success" in its antitrust case against the merger of supermarket chains Whole Foods and Wild Oats Markets. The next step is to weigh the merits of the case and, "if they favor the FTC, to determine the appropriate remedies" since "the merger already has gone forward," the court says. The parties are to propose a method of proceeding by Jan. 16. The decision agrees with a July 2008 appeals court ruling that remanded the case to the district, which had originally favored Whole Foods (1"The Tan Sheet" Aug. 4, 2008, In Brief)

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