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The Whole Foods Antitrust Saga

By R. Dale Grimes

A couple of years ago few people would have thought that a socially conscious company that specializes in selling organic groceries would find itself in a knock-down, drag-out brawl with the Federal Trade Commission. But that's just what has unfolded as a result of the FTC's challenge of the merger between Whole Foods Market, Inc. and Wild Oats Markets, Inc. While the twists and turns of the FTC's challenge have captivated antitrust aficionados for over a year and a half, there are important lessons for non-antitrust lawyers that may have a merger in their future.

First, the history of the case demonstrates that just because a merger has been consummated doesn't mean the FTC will pack up and go home. In fact, with the economic downturn and fewer mergers taking place, the FTC may very well focus its resources on completed mergers. Second, while every executive is likely to have a definite opinion about which markets their company competes in, that opinion won't carry the day in a merger challenge. Antitrust litigation is driven by competing expert testimony and economic analysis, and a company's market for antitrust purposes may end up being different than what the industry analysts report. Finally, while questionable e-mails and internal company documents may not lead to a loss in court, they can definitely cause problems in a merger challenge. It is, thus, extremely important for companies to have an antitrust compliance program that addresses document creation.

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