WASHINGTON Jan 23 An appeals court has ruled
against high-end grocer Whole Foods' WFMI.O request for a
delay in an administrative trial to decide whether its 2007
merger with rival Wild Oats needs to be undone.
Whole Foods had asked the court to delay the Federal Trade
Commission trial, which is due to begin on April 6.
Whole Foods argued that the agency, one of two which
enforces antitrust law, had publicly prejudged the merger and
that it was unfair that the FTC and Justice Department had
different procedures for assessing whether mergers are
The U.S. Court of Appeals for the District of Columbia said
in a brief order that "petitioner (Whole Foods) has not shown
that it has a 'clear and indisputable' right to the
Whole Foods, which said it had filed its petition in the
appeals court to avoid a fight over jurisdiction, said it was
considering its options.
"We filed our case based on the FTC's violation of Whole
Foods' constitutional rights directly to the Court of Appeals,
as the FTC requested, to save time. We now are considering
re-filing the case in the District Court or re-framing our
request for relief to the Court of Appeals so that they will
hear our case," said Whole Foods attorney Lanny Davis in an
The FTC had no comment.
The merger itself, which the FTC has said it might order
undone, is complete, except for changing a half-dozen signs,
according to Whole Foods.
The FTC has previously said that a significant number of
the Wild Oats stores, and perhaps some legacy Whole Foods
stores, could end up being sold as part of a remedy, perhaps
requiring divestiture of 40 to 50 stores as well as their
distribution channels. Wild Oats had 109 stores at the time of
The FTC's battle against Whole Foods was revived last July,
when the U.S. Court of Appeals for the District of Columbia
said the lower court underestimated the FTC's likelihood of
success in denying the request for a preliminary injunction.
(Reporting by Diane Bartz; editing by Carol Bishopric)