The plaintiff in a civil antitrust lawsuit against Whole Foods Market Inc. has agreed to judgment in favor of the company, following a decision in April by the U.S. Court of Appeals for the D.C. Circuit not to hear an appeal of an order denying class certification.
Ekaterini Kottaras, a California woman, sued Whole Foods in 2008 in U.S. District Court for the District of Columbia, claiming the company's merger with former competitor Wild Oats had led to higher prices. The lawsuit was an offshoot of the Federal Trade Commission's 2007 challenge to the merger, which eventually settled.
U.S. District Judge James Boasberg denied Kottaras’ motion to certify a class in the case in late January. Kottaras filed a petition to appeal, which a three-judge appellate panel denied on April 20. On Friday, Kottaras agreed to an entry of judgment in Whole Foods' favor, meaning she could be on the hook for some of the company's costs. The case docket officially closed yesterday.
The FTC settled its case with Whole Foods in 2009, with the company agreeing to divest 32 stores from the merger agreement, but Kottaras’ case pressed on. It was held up for about a year because of a fight over a subpoena Kottaras’ attorneys had issued for Whole Foods’ competitors to turn over documents submitted as part of the FTC case.
Kottaras moved for class certification in 2010. Her complaint had a national focus, but her motion only sought to create a class of consumers at 20 stores in California.
Boasberg, in denying her motion, found that because proposed class members would need to present evidence that would vary from person to person, certifying a class would be inappropriate. He also found that Kottaras' expert failed to present a workable model for accurately determining any net damages to Whole Foods customers.
Lead counsel for Whole Foods, Dechert’s Paul Denis, who also represented the company in the FTC matter, said in an e-mail today that the case “played out as we expected, although it took longer than anyone liked.”
Denis said that Boasberg’s opinion and the D.C. Circuit’s decision not to hear the appeal was “in step” with case law from other districts and the U.S. Supreme Court on the issue of class certification. “Plaintiffs seeking class certification must have common evidence, not speculation, on critical issues like the fact of injury,” he said.
Kottaras is being represented by Roy Katriel of The Katriel Law Firm in Washington and Michael Braun of Braun Law Group in Los Angeles. Neither returned requests for comment today.