The D.C. Circuit — in a 2-1 decision — today reversed the district court’s refusal to enjoin Whole Foods from acquiring Wild Oats. The majority concluded that "the district court committed legal error in assuming market definition must depend on marginal consumers; consequently, it underestimated the FTC’s likelihood of success on the merits." Federal Trade Comm’n v. Whole Foods Markets, Inc., No. 07-5276, slip op. at 2 (D.C. Cir. July 29, 2008).
The court remanded the case so that the district court could weigh the "equities" before ruling on whether to enter a preliminary injunction. The court ordered a stay of the acquisition in August 2007 but soon after dissolved it. The merger closed on August 28, 2007.
