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Denied Injunction, FTC Continues Whole Foods Battle

October 26, 2007

Mark Ostrau, co-chair of the Fenwick & West Antitrust and Unfair Competition Group, was quoted in a Competition Law360 article titled "Denied Injunction, FTC Continues Whole Foods Battle".

The U.S. Federal Trade Commission refuses to back down from its fight against the merger of Whole Foods Market and Wild Oats Markets. In court documents filed Monday, the FTC objected to Whole Foods' motion to dismiss the case as moot, asserting the grocer was trying to avoid a review of a district court decision.

Ostrau said the FTC appears to be arguing less about the merits of the case and more about the proper standard a district court should use when facing a preliminary injunction motion.

"There has always been a loose understanding that the FTC has a lower burden to get a preliminary injunction than private parties, but it's rarely been tested. If they get the injunction, they normally would have gotten it even by the higher standard and if they don't, they would have gotten it under either standard," said Ostrau.

Ostrau said the debate was fairly "inside baseball," but was of great significance all the same. He said the wrangling, however, is unlikely to change the outcome of the deal.

"The court may still say to the FTC, even with the lower standard, you still don't have enough. In some ways, that would still be a victory for the FTC. The real concern is preserving the standard."

Read the entire article by Competition Law360 reporter Shannon Henson (subscription required).