Back before the holidays, U.S. District Judge Paul Friedman asked lawyers for Whole Foods and the Federal Trade Commission to convince him how he should interpret a federal appeals court decision that kicked back a high-profile antitrust case to his court.
Friedman had earlier ruled against the FTC, which sought to block the Whole Foods merger with Wild Oats. The companies merged in a multimillion-dollar deal. But last summer, the U.S. Court of Appeals for the D.C. Circuit reversed Friedman in a rare 1-1-1 vote. That left Friedman and the lawyers for the feuding parties to debate how to proceed on remand. In Friedman’s court on Dec. 22, there was little agreement from anyone.
Yesterday, Friedman sided with the FTC’s interpretation of the D.C. Circuit’s three-way opinion. He will limit his role on remand, which is exactly what lawyers for the FTC said the D.C. Circuit wanted.
The Whole Foods lawyers—including Dechert partners Paul Friedman (not the judge) and Paul Denis—urged Friedman to revisit an issue he’d already ruled on: an evaluation of the FTC’s likelihood of success in attempting to block the merger through an injunction. Matthew Reilly of the FTC’s Bureau of Competition argued Friedman’s only role on remand is to balance the equities to decide whether stopping the merger is in the public interest. The judge agreed with Reilly.
“The question remaining is how best to proceed to weigh the equities and, if they favor the FTC, to determine the appropriate remedies in view of the fact that the merger has gone forward,” Friedman wrote in his order. The Whole Foods lawyers plan to argue that post-merger conduct has benefited consumers.
FTC lawyers are expected to file with the court, or through a letter to Whole Foods’ counsel, the remedies the commission is seeking. The lawyers for the opposing sides will then meet with Friedman to discuss a schedule for and the extent to which the judge will hear testimony.
Whole Foods, which enlisted the help of Lanny Davis of Orrick, Herrington & Sutcliffe, is challenging the FTC in a separate (but related) lawsuit pending before Judge Friedman. The FTC has moved to dismiss the complaint, which claims the FTC is biased against Whole Foods. Lawyers for the grocer want Judge Friedman to block an FTC administrative trial that is set for April.