                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
FEDERAL TRADE COMMISSION,                 )
                                          )
            Plaintiff,                    )
                                          )
      v.                                  )                 Civil Action No. 07-1021 (PLF)
                                          )
WHOLE FOODS MARKET, INC.,                 )
                                          )
      and                                 )
                                          )
WILD OATS MARKETS, INC.,                  )
                                          )
            Defendants.                   )
__________________________________________)


                          MEMORANDUM OPINION AND ORDER

               On July 29, 2008, a panel of the United States Court of Appeals for the District of

Columbia Circuit issued three separate opinions in the above-captioned case. See FTC v. Whole

Foods Market, Inc., 533 F.3d 869 (D.C. Cir. 2008). The opinion for the court was written by

Circuit Judge Brown, a concurring opinion by Circuit Judge Tatel, and a dissenting opinion by

Circuit Judge Kavanaugh. The panel reversed this Court’s decision of August 16, 2007, see FTC

v. Whole Foods Market, Inc., 502 F. Supp. 2d 1 (D.D.C. 2007), and specifically rejected this

Court’s conclusion that the FTC showed no “likelihood of success” on the merits with respect to

its underlying Section 7 case. FTC v. Whole Foods Market, Inc., 533 F.3d at 882. The case was

remanded to this Court for “proceedings consistent with this opinion.” Id. Thereafter, Whole

Foods petitioned the court of appeals for rehearing and rehearing en banc. The petition for

rehearing en banc was denied by order of November 21, 2008. See FTC v. Whole Foods Market,
Inc., No. 07-5276, Order (D.C. Cir. Nov. 21, 2008). On that same day, the three-judge panel

amended and reissued its original opinions. See FTC v. Whole Foods Market, Inc., 548 F.3d

1028 (D.C. Cir. 2008). While there were minor differences between the original opinions issued

by the court and the amended opinions, the most significant difference between the July and

November rulings was that Judge Brown and Judge Tatel, the two judges still constituting the

majority, each now spoke only for himself or herself. Judge Tatel no longer concurred in Judge

Brown’s opinion but only in the judgment of the court. They continued to agree, however, that

this Court’s decision should be reversed and remanded for further proceedings.

               The court of appeals mandate issued on December 11, 2008. This Court held a

status conference on December 22, 2008, at which time counsel for Whole Foods and counsel for

the FTC expressed very different views as to what issues were remanded to this Court for

decision. In the view of the FTC, when read together, the opinions of Judges Brown and Tatel

were clear that the FTC already had satisfied its burden of showing a likelihood of success on the

merits under Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. § 53(b), and the

case was back in this Court only to allow it to weigh the equities, including the post-acquisition

public equities. See Transcript of Status Conference at 8, 42 (Dec. 22, 2008) (“Transcript”).

Whole Foods, by contrast, believes that the remand ordered by the court of appeals was much

broader. In its view, Judge Brown did not conclusively determine the issue of likelihood of

success on the merits. Her reference to a “sliding scale” suggests to Whole Foods that Judge

Brown believes that issue is still open on remand, because (in Whole Foods’ view) the FTC

might need to show a greater or lesser likelihood of success depending upon the nature of the

showing it makes with respect to the public equities. See FTC v. Whole Foods Market, Inc., 548


                                                 2
F.3d at 1041 (“To obtain a preliminary injunction under § 53(b), the FTC need only show a

likelihood of success sufficient, using the sliding scale, to balance any equities that might weigh

against the injunction.”); see also id. at 1036; Transcript at 20. Whole Foods believes this Court

must revisit the likelihood of success issue in order properly to balance the strength of that

likelihood against the strength of the equities.

               At the request of Whole Foods, the Court permitted each side to file a

memorandum of law, not to exceed eight pages in length, by December 30, 2008, on the issue of

whether the court of appeals opinions are properly read to include a remand for this Court to

evaluate both the FTC’s likelihood of success on the merits as well as the balance of the equities,

or only the balance of the equities.

               In its December 30 submission, Whole Foods argues that the Court must take

additional evidence addressing both the FTC’s likelihood of success on the merits and the

balance of the equities because of Judge Brown’s “sliding scale” reference. See Memorandum of

Whole Foods Regarding the Scope of the Remand Proceeding at 1-2. According to Whole

Foods, “[i]f, as Judge Brown suggests, this Court employs a sliding scale and weighs likelihood

of success against the balance of the equities . . . , it will be necessary for the Court to again make

an independent determination of the FTC’s likelihood of success.” Id. at 7. The FTC reads the

three separate opinions of Judges Brown, Tatel and Kavanaugh quite differently. It concludes

that “all three of the judges’ opinions on their face state that the remand is limited to the

evaluation of the equities,” and that Judges Brown and Tatel both have determined that “the FTC

has demonstrated a likelihood of success on the merits, [precluding] further consideration of this




                                                   3
issue. . . . [T]he only task on remand is to balance the equities.” Federal Trade Commission’s

Memorandum Regarding the Scope of this Remand Proceeding at 1; see id. at 3, 4.

                This Court agrees with the FTC. While Judges Brown and Tatel may have

expressed themselves in different words, all three judges on the panel agreed with this Court that

the case turns almost entirely on the proper definition of the relevant product market. See FTC v.

Whole Foods Market, Inc., 548 F.3d at 1037, 1041 (Brown, J.); id. at 1042-43 (Tatel, J.); id. at

1051-52, 1055-56 (Kavanaugh, J.). And, as the centerpiece of their respective opinions, Judges

Brown and Tatel each expressly disagreed with this Court’s conclusion that “there is no

substantial likelihood that the FTC can prove its asserted product market and thus no likelihood

that it can prove that the proposed merger may substantially lessen competition or tend to create a

monopoly.” FTC v. Whole Foods Market, Inc., 502 F. Supp 2d at 49-50. See FTC v. Whole

Foods Market, Inc., 548 F.3d at 1041 (Brown, J.); id. at 1041, 1043, 1049 (Tatel, J.).1 Judge

Brown noted that it remains for this Court to “address the equities,” id. at 1041, while Judge

Tatel stated more explicitly that because the court of appeals has decided that the FTC had shown

the requisite likelihood of success, “all that remains is to ‘weigh the equities in order to decide

whether enjoining the merger would be in the public interest.’” Id. at 1049. Judge Tatel and

Judge Brown also “agreed . . . that the better course here is to remand to the District Court for it

to undertake this task [i.e., to weigh the equities].” Id.

                The only fair reading of the opinions of Judges Brown and Tatel, who together

constitute the majority of the three-judge panel, is that the issue of success on the merits has been


        1
               Certainly Judge Kavanaugh reads the opinions of both of his colleagues as having
concluded that the FTC has demonstrated its likelihood of success on the merits. See FTC v.
Whole Foods Market, Inc., 548 F.3d at 1051.

                                                   4
resolved fully by the court of appeals. Therefore, the sole task before this Court is to weigh the

equities. Judge Brown’s reference to a “sliding scale” with respect to how merging parties may

in some cases rebut the “presumption” that the FTC “usually” is entitled to an injunction

blocking a merger, FTC v. Whole Foods Market, Inc., 548 F.3d at 1035, is too thin a reed to

support the suggestion that this Court should revisit an issue the court of appeals already has

decided.2

               Judge Brown and Judge Tatel also agreed that this Court has the power to grant

relief despite the merger having already taken place. See FTC v. Whole Foods Market, Inc., 548

F.3d at 1034, 1041 (Brown, J.); id. at 1050 (Tatel, J.). Judge Brown expressly stated that the

Court retained the power to preserve “the status quo nunc, for example by means of a hold

separate order, . . . and perhaps also to restore the status quo ante.” Id. at 1034. Judge Tatel,


       2
               Whether Judge Brown is right or wrong about this “sliding scale” approach is
beside the point. Regardless, the context in which she discusses it hardly helps Whole Foods:

               [T]he FTC will usually be able to obtain a preliminary injunction
               blocking a merger by “rais[ing] questions going to the merits so
               serious, substantial, difficult[,] and doubtful as to make them fair
               ground for thorough investigation.” [FTC v. H.J. Heinz Co., 247
               F.3d 708, 714-15 (D.C. Cir. 2001)]. By meeting this standard, the
               FTC “creates a presumption in favor of preliminary injunctive
               relief,” id. at 726; but the merging parties may rebut that
               presumption, requiring the FTC to demonstrate a greater likelihood
               of success, by showing equities weighing in favor of the merger,
               [FTC v. Weyerhaeuser Co., 665 F.2d 1072, 1087 (D.C. Cir. 1981)].
               Conversely, a greater likelihood of the FTC’s success will militate
               for a preliminary injunction unless particularly strong equities
               favor the merging parties. See [FTC v. H.J. Heinz Co., 246 F.3d at
               727; FTC v. Elders Grain, Inc., 868 F.2d 901, 903 (7th Cir. 1989)].

FTC v. Whole Foods Market, Inc., 548 F.3d at 1035.



                                                  5
noting this case’s “unique posture,” wrote that if this Court concludes that “the equities tilt in the

FTC’s favor, it will need to craft an alternative, fact-bound remedy sufficient to . . . [allow] the

FTC to review the transaction in an administrative proceeding and reestablish the premerger

status quo if it finds a Section 7 violation.” Id. at 1050. Such remedies might include a hold

separate order, partial or total rescission of the transaction, or enjoining further integration. Id.

                The question remaining is how best to proceed to weigh the equities and, if they

favor the FTC, to determine the appropriate remedies in view of the fact that the merger already

has gone forward. At one point during the status conference on December 22, 2008, the FTC

suggested that the matter could be resolved entirely on the papers -- the parties would file

affidavits, supporting documents and memoranda of law, after which counsel for the parties

would present oral argument, and this Court could issue its decision. See Transcript at 50.

Counsel for Whole Foods took the position that, even if the only issue on remand is to weigh the

equities, its resolution necessarily would call for the taking of testimony “because the post-

merger conduct benefitting consumers is a substantial part of the balancing that we’ll be asking

the Court to do.” Id. at 21. Nevertheless, counsel represented that this could be done “fairly

quickly.” Id. at 22. In the end, counsel agreed that after the Court defined the scope of the

remand -- as it now has done -- the FTC would state with some specificity, either in a filing with

the Court or a letter to opposing counsel, the remedies it seeks. See Transcript at 51-54.

Thereafter, counsel for the parties would meet and confer to discuss the nature and contours of

the briefing, the presentation of evidence (if necessary) and oral argument, as well as a schedule

to ensure the efficient and speedy presentation and resolution of the matters before the Court.

See id. at 43-44; see also id. at 51-54. The Court also stated that at the meet and confer session


                                                   6
counsel for the parties should discuss whether they could agree on some interim relief during the

pendency of these proceedings in order to ensure that any relief obtained by the FTC would be

effective. See id. at 52-54. With the foregoing in mind, it is hereby

               ORDERED that counsel for the parties shall promptly meet and confer and file

with the Court a joint report detailing their proposed method of proceeding and proposed

schedule on or before January 16, 2009.

               SO ORDERED.

                                                     /s/
                                                     PAUL L. FRIEDMAN
                                                     United States District Judge
DATE: January 8, 2009




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