FTC, Whole Foods Reach Agreement on Wild
Oats Acquisition
http://www.crowell.com/NewsEvents/Newsletter.aspx?id=1175
Antitrust Law Alert
Mar.09.09
The FTC has settled one of the most contentious merger challenges in recent history by reaching an
agreement with Whole Foods Market Inc., allowing it to partially "unscramble the eggs" of Whole
Foods's consummated merger with Wild Oats. Under that agreement, Whole Foods will divest 31 former
Wild Oats locations (and one Whole Foods location), along with the Wild Oats brand and associated
intellectual property. The settlement signals the FTC's willingness to compromise and seek a practical
resolution, despite recent litigation momentum favoring the FTC.
The settlement, announced on March 6, calls for the assets in question to be put immediately into the
hands of a divestiture trustee, who will be responsible for finding an acceptable buyer or buyers. The
settlement caps nearly two years of litigation over the $565 million transaction, first announced in
February 2007. In June 2007, the FTC sought, and won, a temporary restraining order preventing the
transaction, only to see its motion for a preliminary injunction denied in August of that year. In the face
of ongoing Commission opposition, Whole Foods and Wild Oats consummated their merger later that
August. Nearly a year later, in July 2008, the DC Circuit Court of Appeals reversed the District Court,
holding that the FTC had adequately demonstrated the need for a preliminary injunction under the more
lenient standard of Section 13(b) of the FTC Act. That ruling also confirmed that a preliminary
injunction can be an appropriate remedy even where, as Whole Foods and Wild Oats had done, the
parties have already consummated their merger. Whole Foods signaled its willingness to settle in
January, and the Commission agreed to remove the matter from administrative litigation to facilitate a
negotiated settlement.
The remedy itself represents a significant compromise by both sides. The FTC alleged, with minor
changes between its initial complaint in the District Court and its administrative complaint, that the
merger would adversely affect competition in the market for premium natural and organic supermarkets
in 22 geographic markets (essentially metropolitan areas) in which Whole Foods and Wild Oats stores
were already in competition, and 7 other markets in which one of the parties had planned, but for the
transaction, to enter.
Nominally, the consent order provides relief in 17 of the 29 markets named in the complaints, by
ordering the divestiture of 13 stores that are currently in operation, and 19 stores that are closed. But
with 19 of the stores to be divested currently out of operation, and with industry observers suggesting
that many of the 13 operating stores are "underperformers," compounded by the current economic
realities, it may be difficult for a purchaser (or purchasers) to use the assets to mount a meaningful
competitive challenge to Whole Foods in the cities in question.
Nonetheless, the FTC may not have been able to do better had it continued to litigate, as the more time
elapsed, the less attractive any divested assets might look to a potential purchaser, particularly if store
closures continued. Given the enormous resources already consumed by the case, a negotiated
resolution, in the words of Chairman Leibowitz, will allow the Commission to "shift resources to other
important matters."
For more information, please contact the professional(s) listed below, or your regular Crowell & Moring
contact.
Wm. Randolph Smith
Partner - Washington
Phone: 202.624.2700
Email: wrsmith@crowell.com
Union of Whole Foods and Wild Oats Is Put in Doubt
Jamie Rector/Bloomberg News
George Singer in a Wild Oats store last year in Long Beach, Calif. Many of the stores have been reflagged as Whole Foods stores.
By ANDREW MARTIN
Published: July 30, 2008
http://www.nytimes.com/2008/07/30/business/30food.html?_r=1&ref=wholefoodsmarketinc
The marriage between Whole Foods Market and Wild Oats Markets was thrown into doubt again
on Tuesday, at least temporarily, by a federal appeals court, which ruled that a lower court judge
had inadequately considered the impact on customers.
In a 2-to-1 ruling, a three-member panel of the United States Court of Appeals for the District of
Columbia Circuit, in Washington, sent the case back to a lower court to consider the evidence more
fully, suggesting that District Judge Paul L. Friedman had rushed a decision.
The ruling left unclear what would happen if the courts find against a merger that has, for all
practical purposes, already occurred.
The request to block the $565 million merger was brought by the Federal Trade Commission,
which had argued that Whole Foods’ takeover of its competitor would limit competition and
increase prices in the marketplace for natural and organic foods.
In a statement, Whole Foods said it was disappointed with the court’s ruling and was considering
its legal options. The company, which is based in Austin, Tex., closed the deal with Wild Oats last
August, and has already shut four Wild Oats’ stores and reflagged 27 others as Whole Foods stores.
“We await the U.S. District Court’s response so this issue can be resolved,” the company said in a
statement. “Meanwhile, it is business as usual.”
Shares of Whole Foods, which have declined by 45 percent since the first of the year, gained 36
cents to close at $22.39 on Tuesday.
Jeffrey Schmidt, director of the Federal Trade Commission’s bureau of competition, said in a
statement that the agency is “looking forward to future proceedings before the district court,
leading to a full trial on the merits” of the issue.
The merger was announced in February 2007, and Whole Foods executives asserted that it was
necessary so that they could compete against much larger rivals like Kroger andSafeway that were
starting to offer organic and natural products.
Indeed, as part of its argument against the trade commission, Whole Foods said there was no
longer a defined market for natural and organic foods since so many traditional grocery stores were
offering the same products. Judge Friedman, who adjudicated the matter on a “very fast track,”
agreed and maintained that “marginal” customers, rather than core customers, could easily find the
products in other stores.
In its opinion, the appellate court praised Judge Friedman’s “thoughtful opinion,” but nonetheless
said he had erred by focusing on marginal customers. The court also blasted the Federal Trade
Commission for what it called “at best, poorly explained evidence.”
The judges said evidence had shown there was a core group of customers who buy only organic and
natural products and the judge should have considered the impact of the merger on them more
fully.
In a dissenting opinion, Judge Brett M. Kavanaugh questioned his colleagues’ decision to “unring
the bell.”
“The record contains insufficient evidence that so-called organic supermarkets are their own
separate market and that Whole Foods therefore would be able to significantly increase prices as a
result of this merger,” he wrote. “That should end this case.”
Several antitrust experts said Whole Foods may have to stop reflagging Wild Oats’ stores until the
matter is resolved.
“I’ve got to think that they and their lawyers are in a little bit of panic mode,” said Richard E.
Donovan, co-chairman of the antitrust practice at Kelley Drye & Warren in New York. “The eggs are
already scrambled. What are you going to do?”
The case was not only a legal headache for Whole Foods but proved to be a major embarrassment,
too. Documents filed by the Federal Trade Commission revealed that Whole Foods’ chief executive
and co-founder, John P. Mackey, had, under a pseudonym, posted hundreds of messages on
financial bulletin boards promoting the company’s stock and criticizing Wild Oats. Mr. Mackey
later apologized.
Whole Foods Closes Buyout of Wild Oats
By REUTERS
Published: August 29, 2007
Whole Foods Market said yesterday that it closed its acquisition ofWild Oats Markets, after months
of delays as federal antitrust authorities sought to block the deal.
In February, Whole Foods first announced its plan to buy its smaller rival Wild Oats for $18.50 a
share, or about $565 million. Whole Foods has also assumed about $137 million in Wild Oats debt.
The Federal Trade Commission sued to block the deal in June, saying it would hobble competition
in the market for natural and organic groceries. But a federal appeals court denied the agency’s
request to temporarily block the deal on Aug. 23.
The F.T.C. had no comment on the closing of the deal yesterday.
Whole Foods has insisted that the F.T.C. looked at the deal the wrong way by focusing on natural
and organic grocers rather than taking a broader view of the overall industry. When Whole Foods
announced its plan to buy Wild Oats on Feb. 21 it said it faced increased pressure from larger
players.
The companies had to jump over several hurdles to complete the deal. These included a federal
investigation into numerous postings to Internet chat rooms criticizing Wild Oats that turned out
to have been written under a fake name by Whole Foods’ chief executive,John P. Mackey; the
F.T.C.’s lawsuit; and the release of a batch of Whole Foods financial documents improperly posted
on the Web.
Whole Foods, based in Austin, Tex., said it entered into a five-year $700 million senior-term loan
agreement to finance the deal. It also signed a new five-year $250 million revolving credit
agreement, which will replace an existing $200 million credit line.
Whole Foods has already said that 35 Henry’s and Sun Harvest stores and a distribution center
owned by Wild Oats would be sold to Smart & Final, a Los Angeles-based food retailer. That deal
should close by late September, Whole Foods said.
Wild Oats has closed some underperforming stores, but more closings are expected. Whole Foods
said it might also relocate some Wild Oats stores that overlap with stores it has in development.