More Action in Whole Foods
As I posted earlier, Whole Foods filed a petition for a rehearing en banc after losing its appeal in the D.C. Circuit. Last month, the FTC responded by filing a brief in opposition (pdf), stating that the D.C. Circuit Court panel “applied established standards to the specific factual setting of this case, and rendered a ruling that focused on the evidenced adduced by the FTC.” Whole Foods is now responding with a reply brief (pdf) written by Ted Olson of Dechert: “As if in a time warp, the [D.C. Circuit Court] Panel eclipsed decades of leading cases — including this court’s decision in Heinz and Baker Hughes, which require an analysis of the competitive effects of a merger under modern economic principles — and dusted off a series of cases dating back to the 1960s that have long been discarded by modern antitrust decisions.” (Here is Whole Foods’ petition for leave to file a reply, since replies are not typically provided for in en banc petitions.)
I’ll have some commentary on the back and forth a little later.
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