Lanny Davis (Aka: 'Mr. Natural') is the face for Whole Foods Market, Inc. in its lawsuit and lobbying campaign against the FTC's efforts to overturn the natural grocer's 2007 acquisition of Wild Oats. We've dubbed Lanny Davis 'Mr. Natural' for the 'natural' way in which he gravitates to controversial issues and people and for his affiliation with America's premiere 'natural grocer,' Whole Foods. [Photo credit: Fox News.]FTC v. Whole Foods Market - Whole Foods Market v. FTC
On December 15 we reported in this story [Retail Memo: Eight Members of U.S. Senate Judiciary Committee Send Letter to FTC Chairman Regarding FTC's Legal Case Against Wild Oats' Acquisition] that on Friday evening, December 13, eight members of the U.S. Senate Judiciary Committee sent a letter to U.S. Federal Trade Commission (FTC) Chairman William Kovacic regarding issues of FTC enforcement that have a direct relation to its attempt to overturn Whole Foods Market, Inc.'s 2007 acquisition of Wild Oats. [The Senate Committee letter to the FTC's Kovacic.]
Now, just a week after the eight members of the Senate Judiciary Committee sent their letter, the ranking members of the House of Representatives Judiciary Committee (the Senate's sister committee in the House) have sent their own, similar, letter to the FTC Chairman.
The letter, signed by Rep. John Conyers (D-Mich.), the chairman of the House Judiciary Committee, and Rep. Lamar Smith (R-Texas), the ranking member, focuses on the disparity of the different approaches to enforcement the FTC and the Department of Justice use for reviewing mergers. The FTC uses an administrative process to evaluate the legality of mergers, and the Justice Department, as a law enforcement agency, uses the federal court system.
"We are concerned that this disparity may not be in the best interests of promoting sound antitrust enforcement and its broad support among the business community and American citizens,” the letter says. [The letter to Federal Trade Commission Chairman William Kovacic.]
The letter essentially suggests the way the Department of Justice reviews mergers through the federal courts is the most fair process.
The letter from the leaders of the House and Senate committee leaders are similar in that both argue in essence that the FTC's administrative review process may violate the due process of merging and acquiring companies. This argument is central in Whole Foods Market, Inc's lawsuit against the FTC, in which it argues the regulator has violated the natural grocery chain's due process rights in its ongoing legal case designed to break up the friendly acquisition-merger with Wild Oats.
In its lawsuit, Whole Foods wants the matter of the acquisition taken away from the FTC and moved to a U.S. federal court, where the company is asking the issue be settled once and for all.
The FTC opposes this and says the administrative hearing/trial it has set for February, 2009 with an Administrative Law Judge is fair. That Administrative Law Judge will determine at the administrative trial the status of the acquisition-merger. If the judge rules in the FTC's favor and the deal is overturned, a deal that is now essentially completed, Whole Foods Market, Inc. can appeal that decision to a federal court.
In our December 15 piece, we wrote that the letter from the top U.S. Senate Judicial Committee members to the FTC Chairman was the first sign Whole Foods' extensive legal, lobbying and public relations attack against the FTC was beginning to bare fruit.
As we've written about previously, that multi-front campaign includes: the lawsuit against the FTC, which is being conducted by three of Washington D.C.'s top law firms; a Capital Hill lobbying campaign being conducted by The Glover Park Group, one of the capital's most strongly Democratic Party-connected firms; and a media and grass roots public relations campaign being conducted by outside public relations consultants for Whole Foods as well as internally by the natural grocery chain. That campaign includes having as many as 50,000 Whole Foods Market store employees contact their local federal legislators, making them aware of the issue and asking them to advocate for "Fair Play For Whole Foods By FTC," according to Walter Robb, Whole Foods Market, Inc.'s co-president.
Former Special Counsel to President Bill Clinton and current senior advisor to Secretary- of-State-in-Waiting in the Obama Administration Senator Hillary Clinton, Lanny Davis, who is a partner at the Washington D.C. office of the law firm Orrick, Herrington & Sutcliff, is leading the charge for Whole Foods Market, Inc., managing the overall legal team and lobbying campaign.
Eileen O’Connor, a lawyer at Orrick, Herrington & Sutcliff working on the Whole Foods case under Lanny Davis, confirmed that Whole Foods' representatives spoke with both House Judiciary Committee Chairman John Conyers (Democrat) and Republican Ranking Member Lamar Smith last week, indicating the lobbying effort is indeed baring fruit.
Lanny Davis, who is now the chief spokesman for Whole Foods on the issue, said today in a statement about the letter from the House committee leaders: "Whole Foods has not asked Members of Congress to take sides in any ongoing litigation. We're not going to comment specifically on this letter except to say that we share the concerns of Chairman Conyers and Congressman Smith, as expressed in the letter."
Always on message -- a practice he honed serving as former President Bill Clinton's chief legal counsel during some rather tough times for the President, along with serving as one of the most visible advocates for Senator Hillary Clinton during her run for the Democratic party nomination for President (and when she lost for her to be Vice President, and then Secretary of State) this year, Davis made a very similar statement right after the members of the Senate Judiciary Committee sent their letter to the FTC Chairman last week, as we reported here.
Lanny Davis (who we are nicknaming "Mr. Natural" since he has become the public face of natural grocer Whole Foods Market of late) and company are among other things working very hard to try and make sure President-Elect Barack Obama appoints a new FTC Chairman who is more favorable to the arguments made in Whole Foods Market's lawsuit against the FTC, along with the sentiments expressed in the letters from the House and Senate committee leaders, than one who isn't. President-elect Obama should make that appointment soon.
This is where politics and law intersect closely in the nation's capital, which is why Whole Foods is conducting a massive (and expensive) lobbying and PR campaign along with its lawsuit against the FTC.
Reader Resources
Recent linkage: Coverage from Natural~Specialty Foods Memo of FTC v. Whole Foods Market and related issues. Just click on the story title below to read it:
December 18, 2008: Retail Memo: 'This Isn't Over Yet' - New Seasons Market CEO On Judge's Decision the Natural Gorcer Must Turn Over Trade Secrets to Whole Foods Market December 18, 2008: Retail Memo: The 'Whole Primary Source Scoop' -- FTC and U.S. Federal Court Documents on the FTC v. Whole Foods Market, Inc. Case....December 17, 2008: Breaking News: Judge Orders New Seasons Market to Comply With Whole Foods' Subpoena and Submit Sales Data, Financial Records and Other Trade Secrets....
December 16, 2008: Retail Memo: Whole Foods, Wild Oats and Boulder, CO...And the Rocky Mountain News' Editorial Take On FTC v. Whole Foods Market, Inc....December, 15, 2008: Retail Memo: Eight Members of U.S. Senate Judiciary Committee Send Letter to FTC Chairman Regarding FTC's Legal Case Against Wild Oats' Acquisition.... December, 13, 2008: Retail Memo - Analysis & Commentary: More On FTC v. Whole Foods Market, Inc. and Whole Foods Market, Inc. v. FTC....
December 9, 2008: Organics Category Memo: Wither Organics? Organic Food & Grocery Category Sales Down; But Double-Digit Growth Still Likley With Mass Market Lift....December 9, 2008: Retail Memo: Whole Foods Markets' 'Whole Legal Paycheck:' Three Top Washington, D.C. Law Firms Teaming Up On The Natural Grocery Chain's FTC Lawsuit....December 9, 2008: Retail Memo: Whole Foods Market CEO John Mackey and Team Launch First Aggressive Attack Against the FTC's Legal Case at Press Conference This Morning....
December 8, 2008: Retail Memo: Mr. Mackey (and the Whole Foods Market Troops) Goes to Washington....December 8, 2008: Retail Memo: Breaking News - Whole Foods Market, Inc. Files Lawsuit Against the FTC; Argues the Regulator Violated the Company's Due Process Rights....December 7, 2008: Retail Memo: New Seasons Market CEO Brian Rohter and Whole Foods Market Co-President Walter Robb Discuss and Debate the Subpoena Issue Online....December 7, 2008: Retail Memo: New Seasons Market CEO Brian Rohter Speaks Out Again Today on the Whole Foods Market, Inc. Subpoena of His Company's Data....
December 7, 2008: Retail Memo: Whole Foods Market Retains Top Washington D.C. lawyers and Politically-Connected Lobbyists to Plead its Case Against the FTC....December 6, 2008: Retail Memo: Fast-Growing and Scrappy Sunflower Farmers Market Ventures Deep in the Heart of (Whole Foods Country) Texas....December 6, 2008: Retail Memo: Fast-Growing NF Chain Sunflower Farmers Market Responds to Whole Foods Market, Inc. Subpoena For Sales, Financial and Related Information....
December 3, 2008: Retail Memo: More on the Whole Foods Market-New Seasons Market Subpoena Issue; FTC Holding Firm For February, 2009 Hearing....December 2, 2008: Retail Memo: Whole Foods Market, Inc. Closes $425 Sale of Stock to Private Equity Firm; Adds Members of the Firm to its Board of Directors....December 2, 2008: Retail Memo: Portland, Oregon-Based New Seasons Market CEO Brian Rohter Responds to Whole Foods Market's Paige Brady....
December 2, 2008: Retail Memo: Whole Foods' Paige Brady Responds to Yesterday's New Seasons Market Piece; Lots of E-Mails; Issue Heats Up On the New Seasons Market Blog....December 1, 2008: Retail Memo: Whole Foods Wants A Court-Mandated Financial Records Dump from Portland-based New Seasons Market; it Says For its Battle Against the FTC.
FTC v. Whole Foods: Linkage from the Natural~Specialty Foods Memo archives:
Click here, here and here for stories about the FTC-Whole Foods issue from our archives.
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