Ongoing litigation with the FTC has led Whole Foods to file suit to challenge the agency’s administrative merger review process. This suit is the latest action in a dispute over the Whole Foods acquisition of Wild Oats, an organic grocer, which was agreed to Feb. 21, 2007. The FTC review of the merger was recently reinstituted after the U.S. Court of Appeals for the D.C. Circuit reversed the district court’s denial of an injunction that was originally filed to block the merger.
Whole Foods alleges that the FTC’s administrative trial violates due process because it is the FTC that both brings and reviews the merger challenge. This is in contrast to the procedure followed by the Department of Justice, which must challenge mergers in federal district court. According to Whole Foods, the FTC has prejudged the case in publicly available legal briefs and has instituted a prejudicial discovery schedule. Whole Foods seeks an injunction to stop the administrative trial.
The FTC responded Dec. 12, 2008, by filing a motion to dismiss Whole Foods’ suit for lack of jurisdiction. If the court chooses not to dismiss the suit, the FTC would like to see it transferred to the D.C. Circuit because of the effect the ruling would have on the jurisdiction of federal courts of appeals, which now have jurisdiction over final FTC orders.