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Whole Foods Market yesterday followed its opening salvo fired at the Federal Trade Commission in the form of a lawsuit, with the launch of a P.R. blitz at an impassioned press conference in Washington D.C., where it has filed the suit claiming the FTC is violating Whole Foods' due process rights.
After filing the lawsuit in District Court in D.C., the super-natural chain took the press conference stage to ask for "fair play" from the federal agency. The grocer's claim, first reported by progressivegrocer.com on Tuesday, is that the FTC current administrative proceeding in the matter of the grocer's merger with Wild Oats would violate its right to due process under the Constitution.
"That's what due process is about - fairness," noted Lanny J. Davis, Whole Foods' attorney, at the conference. Davis likened the FTC's prolonged campaign to scuttle the merger to "torture, or at least [a] nightmare."
John Mackey, Whole Foods' oft times outspoken co-founder and c.e.o., declared, "Free Whole Foods," to applause from an audience consisting largely of his employees in town to lobby members of Congress on the issue. "Let us get back to our business, instead of spending all this time in the courts," Mackey said.
During the conference, the Whole Foods team laid out additional facets of the complaint against the FTC. What they contend is that the FTC's "vendetta," exemplified by such occurrences as the FTC judge's dismissal of Whole Foods' expert-witness testimony as "garbage," was born of a desire to force the company to settle on unfavorable terms.
Since an FTC ruling against Whole Foods would send the case to federal court anyway, Mackey implored FTC to "cut to the chase," and have the action move directly to federal court.
"Let the federal court system decide if Whole Foods should be broken up," declared c.e.o. Mackey, adding that there should be one consistent antitrust system.
Another sore point is what Whole Foods is calling the commission's creation of a narrow "imaginary market," dubbed "Premium Natural Organic Supermarkets," or PNOS, which the FTC then arbitrarily decided that Whole Foods had violated, alleged Davis and Mackey.
Other speakers at the press event included co-president and c.o.o. Walter Robb, who contended that, contrary to the FTC's claims that Whole Foods was reducing competition in the 29 markets it has entered as a result of the merger, "I've never seen a marketplace more competitive"; store team leader Marc Mastropaolo from the Tenley Circle location in Washington, D.C., who, speaking as one of the company's "foot soldiers," confirmed that customers often went to the 22 other supermarkets within a five-mile radius, as shown by the evidence of their discarded shopping lists; and Steve Cannon of the law firm Constantine Cannon, a member of the legal team and former member of the congressionally created Antitrust Modernization Commission, who observed that "fundamental fairness" would dictate that Whole Food's antitrust case be heard in federal court.
Despite such tough talk, however, the company admitted that it was still interested in pursuing settlement talks with the FTC, even though earlier discussions had not borne fruit.