Friday, March 6, 2009

Whole Foods Settles with FTC, Will Sell 32 Stores

Whole foods announced today that it entered into a consent order with the FTC.

Under the terms of the order, a trustee has been appointed to sell certain Whole Foods assets within six months, including:

  • leases and related assets for 19 non-operating former Wild Oats stores;

  • leases and related fixed assets for 12 operating acquired Wild Oats stores and 1 operating Whole Foods Market store; and

  • Wild Oats® trademarks and other intellectual property associated with the Wild Oats stores.

A complete list of affected store locations is available in the Decision and Order.

The divestitures include stores in the majority of the markets in which the FTC had challenged the Whole Foods - Wild Oats merger as anti-competitive. FTC Chairman Jon Leibowitz praised the agreement, stating: "As a result of this settlement, American consumers will see more choices and lower prices for organic foods. It allows the FTC to shift resources to other important matters and Whole Foods to move on with its business."

Whole Foods CEO John Mackey, meanwhile, expressed satisfaction with the agreement, stating that it was in the best interests of Whole Foods "to resolve this matter so we can dedicate our full attention to [business operations]."

Pursuant to FTC protocol, the settlement agreement has been placed on public record for a 30-day comment period. The FTC has provided a short summary and analysis of the dispute and agreement, available here, to aid public comment.

The dispute between the FTC and Whole Foods has been costly for Whole Foods, and has led to criticism of both Whole Foods and the FTC. Given the risks and costs to both sides of litigating the case further, a settlement made sense for the parties. But as Owen Fiss (author of the law review article Against Settlement) would point out, the settlement provides peace, but leaves unresolved the question of whether it provides justice.

Related posts: Whole Foods Anticipates Settlement; Whole Foods Proposes Settlement with FTC; Whole Foods Files Suit Against FTC; Whole Foods Faces Consumer Class Action; D.C. Circuit Reverses Ruling That Allowed Whole Foods Merger.


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