In this issue:
Whole Foods: A U.S. Perspective
Now comes the decision of the U.S. Court of Appeals for the D.C. Circuit, reversing the district court’s denial of a preliminary injunction. There are many interesting aspects of the D.C. Circuit’s decision, including the FTC’s (now meager?) burden in obtaining a preliminary injunction under Ârt 13(b) of the Federal Trade Commission Act, the role of bad documents and colorful statements against interest made by a CEO, and the powers of a district court in fashioning a remedy pending further litigation before an FTC administrative law judge. The D.C. Circuit’s decision also has some interesting implications for future unilateral effects cases, though perhaps not entirely in ways envisioned by the agencies.
If email traffic over the American Bar Association’s Antitrust Section “conversation” list is any indication, the recent 2-1 decision by a panel of the U.S. Court of Appeals for the DC Circuit Court in FTC v. Whole Foods is the hottest current topic, at least in the U.S. corner of the competition policy community. In this article, I briefly discuss some legal issues, then turn to aspects of market definition, and conclude with observations relating to recent discussions on the role of distributional considerations in merger assessment.