February 14, 2008
Partner Richard Donovan comments in The Daily Deal regarding Whole Foods Market's Feb. 13, 2008 request to dismiss the Federal Trade Commission's appeal of the District Court's ruling allowing Whole Foods' merger with Wild Oats.
The article states, "According to Richard Donovan, an antitrust partner at Kelley Drye & Warren LLP, the fact that the appeals court didn't issue a stay pending appeal back in August is an indicator that the FTC is fighting an uphill battle with this case.
The question for the court now is one Donovan posed: Would an injunction at this point be able to fix anything?"
"The FTC's hope for clarification on the standard that a district court should apply in evaluating the agency's case does raise an interesting question," Donovan added. "While the district court judge acknowledged the standard, there's some question, based on
some language about the relevant market, that he might have held them to a higher standard," he said.
"But that issue, without a remedy targeted at preserving competition, could be a Pyrrhic victory for the agency," Donovan added.