There was a homecoming of sorts in the D.C. courtroom of U.S. District Judge Paul Friedman this week when lawyers for Whole Foods and the Federal Trade Commission gathered together for the first time in court in a long time. The BLT did not note any hugs.
The saga of the Whole Foods antitrust dispute with the FTC is long and complicated, and somewhere in the middle—or perhaps on one side—is Friedman (pictured at left). Friedman ruled against the FTC effort to block the merger between Whole Foods and Wild Oats. The companies merged in a $565 million deal in August 2007.
But Friedman’s decision was reversed on appeal this year in a rare 1-1-1 vote by Judges Janice Rogers Brown, David Tatel, and Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit. Brown and Tatel voted for remand. And so the lawyers met again before Friedman.
“It is truly a pleasure to see you again,” Matthew Reilly of the FTC’s Bureau of Competition told Friedman. “I’m much happier to see you than Judge Brown or Judge Tatel,” responded Friedman, drawing laughter from the more than two dozen people at the hearing.
Dechert partners Paul Denis and Paul Friedman (not the judge) were among the lawyers representing Whole Foods, which is now defending the merger in federal court and at the FTC. An FTC administrative trial is set for next year.
Lanny Davis of Orrick, Herrington & Sutcliffe was there, too. Davis, also representing Whole Foods, is fighting the FTC in court in a suit that alleges the FTC is biased and should be barred from holding the administrative trial. In the suit filed this month, Davis says the FTC has prejudged the merits of the merger and that Whole Foods won’t find impartiality at the FTC. The complaint is also before Judge Friedman; government lawyers have filed a motion to dismiss.
At the status conference Monday, Judge Friedman said he would hold a subsequent hearing on the government's motion to dismiss. Simple enough. The more complex issue discussed at the hearing was the scope of the remand proceedings. Friedman and the lawyers struggled over what is expected from the judge.
Judge Friedman compared the D.C. Circuit split opinion to the Supreme Court’s decision in 2000 in Bush v. Gore. The appellate court opinion, Friedman said, “doesn’t stand for anything” because there is no clear majority.
Friedman asked Whole Foods’ lawyers and the FTC to write up briefs—no more than eight pages—telling him how he should interpret the D.C. Circuit opinion. “My gut reaction is that it requires me to read these two opinions a couple more times,” Friedman said. Friedman will issue an opinion articulating his role in the remand proceedings.