Austin, TX (October 27, 2008)
– In comments submitted to the Federal Trade Commission (“FTC”) today, Whole Foods Market announced its strong opposition to new and amended regulations proposed by the Federal Trade Commission.
“Through these regulations, the FTC is attempting to deprive American businesses of the fundamental principles of due process, the very businesses that believed that mergers should actually benefit the consumer,” said Lanny J. Davis, outside counsel to Whole Foods Market. “Even worse, the FTC is trying to push through this radical change of its regulations in a limited 30 -day comment period, just weeks before the Presidential election and in the middle of a national economic crisis. This is not acceptable behavior by a regulatory agency that has such power over American businesses affecting millions of consumers.”
The comments submitted today to the FTC by Paul T. Denis of Dechert LLP, outside counsel to Whole Foods Market, protested the FTC’s “rush to judgment,” referring both to the unusually short 30-day comment period and to the effects of the proposed regulations, which would prevent many, if not most, companies from having enough time to defend themselves from FTC actions attempting to block mergers. The proposed regulations would specify “that the actual date for the evidentiary hearing would be five months from the date of the complaint in merger cases,” despite the fact that, as FTC Commissioners have frequently recognized, “the merger review process is highly fact-intensive.” According to the comments, “the proposed regulation adopts an unfair ‘one-size fits all’ approach, regardless of a particular matter’s complexity.”
The comments also object to the fact that the FTC’s proposed regulations would undermine the independence of Administrative Law Judges (ALJ), who are supposed to be the objective fact-finders of the evidence before the FTC makes its final judgment. The regulations would give the Commission, not the ALJ, authority to decide “all dispositive prehearing motions.” According to the comment, this would mean that “the same Commission members who voted to charge the respondent with a legal violation would also rule on pre-trial motions to terminate the charges. In this critical, outcome determinative aspect of the case, the role of the ALJ, including his or her ability independently to assess the merits of the FTC’s case, would be eviscerated.”
The Company is forming an “Ad Hoc Committee for FTC Fair Play” and it hopes other businesses and organizations will immediately submit opposition comments to the FTC seeking an extension of the comment period as well as a rejection of the proposed regulations. Those interested in joining the “ad hoc committee,” can do so by visiting https://www.wholefoodsmarket.com/ftc.
