Natural Foods Merchandiser

Is the end in sight for FTC v. Whole Foods?

The U.S. Federal Trade Commission on Wednesday issued an order withdrawing the Whole Foods Market case from adjudication until Feb. 5 to consider reaching a consent agreement. If a settlement is reached, it will mean that the question of whether or not Whole Foods created a monopoly in 18 U.S. cities when it acquired Wild Oats Market will be settled without a trial or the necessity of tackling the sticky issue of how former Wild Oats stores that have already been re-branded as Whole Foods stores would be untangled.

The terms of the proposed settlement have not been made public, however in a prepared statement, Whole Foods Vice President Jim Sud said the company “welcomed the opportunity to hold constructive discussions directly with the Commissioners as well as the FTC’s attorneys.”

An April 6 administrative proceeding about the matter is on hold pending the outcome of consent agreement talks. If there is a settlement, according to Los Angeles-based antitrust lawyer Heather Cooper of Sheppard, Mullin, Richter & Hampton LLC, there would be “no full-blown trial and, typically no admission of a violation of law.”

“But there would be a statement of the conduct of Whole Foods and legal obligations on Whole Foods' part, for a defined period of time, to refrain from certain conduct or take affirmative steps both of which would be designed to alleviate competition concerns,” Cooper said.

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