Retail Memo - Specialty Foods: Balducci's Creates Some Value On the High-End With 'Balducci's Own' Specialty Store Brand, Now Including Caviar

Pictured above: The Balducci's store in Manhattan's Chelsea neighborhood, one of the 10 upscale specialty and epicurean foods markets operated by the gourmet grocer. The Chelsea Balducci's is an urban store. The specialty foods retailer's store's in other places like Maryland and Virginia has a more suburban look to them however.

Upscale Food Retailing in the Recession: Let Them Eat (Balducci's Own Store Brand) Caviar

Bethesda, Maryland USA-based specialty and epicurean foods retailer Balducci's is sticking a gold-plated fork in the eye of the current economic recession as well as adapting in its own unique way by creating a value proposition around its Balducci's Own store brand specialty and gourmet products, which now includes caviar.

The storied specialty foods retailer, which has survived many an economic recession, has introduced a line of caviar under its own store brand -- the "Balducci's Own Brand."

"In this economy, Americans everywhere are scaling back on their holiday menus," says John Coleman, Balducci's wine, cheese and coffee merchant. "However, many party planners, food connoisseurs and epicureans alike are still looking for ways to enjoy their annual holiday luxuries."

There you go. Balducci's is a perfect example of what we've been saying -- that regardless of format or income-level consumer catered to, retailers must create their own unique value propositions in this serious economic recession.

Granted, this is an interesting and rather high-end value proposition in general. But that's Balducci's niche, and always has been. But even the wealthy can use a little relief, even when it comes to caviar prices.

The most value-priced Balducci's Own brand caviar is Farmed California White Sturgeon. It retails for $55 to $299 per ounce through New Year's Day. The caviar regularly goes for $80-$475 per ounce, according to John Coleman.

The caviar comes in three different types: Wild Caspian, which comprises the Sevruga ($199-$1,175 per ounce) and Royal Osetra ($249-$1,500 per ounce) varieties; Farmed International, which consists of the Farmed California White Sturgeon and the first true Russian Sturgeon to be successfully cultivated in Germany for the production of genuine Osetra caviar ($120-$725 per ounce); and Domestic, which consists of salmon caviar from Alaska and paddlefish caviar from the Tennessee and Mississippi rivers (($9.99-$29.99 per ounce and $35-$199 per ounce, respectively).

"With the new line of Balducci's Own caviar, you can still indulge, and very often under $100," says Coleman. "And with the Balducci's brand, you can rest assured that you are getting -- or giving -- the highest in quality."

The 10-store specialty and epicurean foods retailer has been beefing up its Balducci's Own store brand over the last year. The line includes numerous varieties of products in the cracker, cookie, oil, vinegars, condiment, coffee, sauces and others categories. All are priced below comparable domestic and imported manufacturers' specialty and gourmet brands.

Balducci's also offers a second store brand line -- Balducci's Premium -- which offers numerous epicurean food and grocery items across numerous categories. It's priced higher than its Balducci's Own brand.

In addition to operating 10 specialty-gourmet foods markets on the east coast, Balducci's has a significant online shopping and mail order delivery business via its Web site here.

The Balducci's stores are smaller-sized markets but are packed full of fresh and shelf-stable specialty food and grocery products across all categories, including fresh produce, meats, deli-prepared foods, dairy and grocery. The are best described as neighborhood-sized stores packed to the ceiling with specialty foods of all types, in an upscale setting.

Independent Grocer Memo: Eight-Store Michigan USA Independent Hiller's Markets Demonstrates Why Independents Survive and Thrive in the U.S.

Independent Food and Grocery Retailing USA

Michigan USA independent grocer Jim Hiller embodies many of the qualities that make the independent food and grocery retailing sector the thriving success it is in the U.S., despite all of the pressure and competition independents receive from the chain store giants. Hiller, the CEO of eight-store Hiller's Markets, also has a number of unique qualities that make him an exceptional entrepreneur and grocer, as well as an interesting guy.

For example, he writes and publishes his own Blog on the Hiller's Markets Web site. And he takes positions on issues.

His most recent cause is a campaign encouraging people to "Buy American" automobiles. Michigan, where Hiller operates his eight supermarkets (with number nine on the way) is hurting more than any other state in America in the current economic recession. It has the highest unemployment rate, for example, currently hitting about 13%, compared to a 6.7% rate nationally. And of course, Michigan -- specifically Detroit and its suburbs -- is "Big Three" automaker country. Even with the current government loans, the Detroit automakers are shedding thousands more jobs, which also means thousands more lost because so many other jobs in the state are related to the ato industry. [Read independent grocer Jim Hiller's most recent post, "Why I Drive An American Car," here.]

Hiller's is a success in Michigan for a number of reasons. But central among the reasons are because the small, independent chain does what independents do best -- it offers a great selection of food and grocery products at affordable prices, focuses on specialty items not available elsewhere in many cases, makes customer service job one, and places a total focus on the local communities and neighborhoods where it operates its stores, including customizing each of its eight stores to the particular communities and neighborhoods they are located in.

Below is how Hiller's describes its stores:

"If you’ve never been to an authentic grocery store before, you’ll love Hiller’s," says Jim Hiller

Our grocery stores offer premier products, gourmet delectables, healthy choices, and lifestyle shopping. It has been said that we eat with our eyes before we ever take a bite. You’ll have such a sensory-rich experience at Hiller’s - how good it will feel for shopping to be enjoyable and even fun!

The company was created in 1941 by Sidney Hiller with a commitment to quality, selection, and value. Now, led by Jim Hiller, Hiller’s Markets is Michigan’s home for discerning shoppers. We listen to shoppers, and we obtain items that you request, no matter how arcane, rare, or unusual.

Hiller’s embodies Jim’s passion for food, for wine, and for excellence. The Hiller name is known for quality, variety, great taste, and unparalleled customer service.

Hiller’s is the place for people who absolutely love food and whose desires run from the conventional to the most obscure. You’ll find it all under one roof.

Add Hiller’s to your list of Very Important Places.

Welcome to the way it should be.

Not a bad description, is it? And Jim Hiller isn't afraid to infuse his personality into the operation of the stores, which is another aspect of independent food retailing that's interesting -- the ability to personalize the business, putting a local face on the stores.

Hiller's also does what the most successful independent grocers do best -- adapt to the times. The eight-store independent is doing just that in economically-challenged Michigan. Among the things its doing are slashing prices on nearly every item in its stores from 10% -to- 60%, having met with every one if its 1,000-plus vendors and negotiated special pricing deals which the grocer is passing on to customers dollar-for-dollar in its stores.

Hiller's also is putting an greater emphasis on buying and selling Michigan-made products, offering what is the most extensive selection of local food and grocery products in the state.

Erica Finley, a writer for the Oakland Business Review in Oakland County, Michigan has a profile of Jim Hiller and Hiller's Markets in yesterday's online edition of the publication. In her piece she interviews Jim Hiller and lets him describe his business philosophy and what the optimistic, aggressive but yet humble independent grocer is doing to survive and even thrive in the current economic recession, which is hitting his customers in the Metro Detroit region, where the Hiller's stores are located, just about as hard as people can be hit by a severe economic downturn.

Below is the profile by Erica Finley from the Oakland Business Review:

Jim Hiller, CEO of Hiller's Markets, talks about commitment to customers, community
by Erica Finley Oakland Business Review
December 22, 2008

His family's grocery store chain was just named Independent Retailer of the Year by Grocery Headquarters Magazine. He's slashing prices in his stores but maintaining the quality of the products in the worst economic environment in many years, and he's committed to giving back to the local community.

Click here to read the entire profile piece.

Independent Grocer Memo: National Grocers' Association Asks President-Elect Obama to Look Out For Independent Grocers When He takes Office in January

Independent Food & Grocery Retailing USA

The National Grocers Association (NGA), the trade association for America's independent grocers, has sent a letter to President-elect Barack Obama requesting the new administation maintain a "level playing field" for U.S. independent grocers by enacting a federal economic stimulus package, supporting strong enforcement of federal antitrust laws (including the Robinson-Patman Act), supporting "fair" employer-employee legislation and supporting new federal legislation of credit card interchange fees.

The letter was sent to the President-elect last week, according to NGA president and CEO Thomas Zaucha.

In its letter, the NGA also offered some specific suggestions to the incoming President, who will be sworn into office on January 20, 2009. Those specific suggestions include decreasing corporate tax rates, or the taxes on individuals operating as subchapter S corporations or other pass-through entities. Most independent grocer members of NGA operate family or privately-owned supermarkets, hence this being an important issue to the trade group.

Regarding the inactment of an economic stimulus package, which President-elect Obama is talking about doing to the tune of $600 billion up to nearly $1 trillion shortly after he takes office, the NGA's letter says any such package should extend the current expensing and bonus accelerated depreciation legislation enacted by Congress and President George W. Bush, which is scheduled to run out if not renewed next year. Such provisions are beneficial to privately-held companies, such as the majority of those that comprise the independent grocer association.

From these more routine suggestions, the NGA's letter gets more interesting, touching on issues that are sure to be in conflict with policies of the incoming President and his supporters.

In its letter to President-elect Obama, the NGA argues for relief from the Federal Estate tax for its members, the majority of which operate family or privately-owned supermarkets, as we mentioned earlier. Estate tax relief and the outright elimination of what it and others have called the "death tax" (taxation on inheritance from one family member to another) has been one of the trade association's hot button legislative issues for decades. The amount of money (the threshold) in which estates are taxed was raised under the Bush Administration, with support from many Democratic members of Congress. However it appears the NGA wants even more relief for its members.

The letter to the incoming Democratic President also warned against inacting "over-regulation that can increase labor costs."

Additionally, In the letter to President-elect Obama, the NGA says it opposes mandates for paid sick leave, increased minimum wages, punitive civil penalties for employment law violations and expansion of employment discrimination laws. A pretty healthy laundry list we must say. President Obama has indicated he favors legislation on all four of these issues. Based on its letter it appears the NGA and the incoming administration are at odds on all of these matters then. But if both are willing to comprise they might be able to work something out?

The independent grocer's association also includes a "big issue" in its letter to the new U.S. President, writing that it opposes the Employee Free Choice Act., and a provision in the legislation called "card check," which would replace the current secret ballot method in which employees vote for unionization in secret, with a simple card in which the employees of non-union companies, including those who work for non-union supermarkets, could merely check "yes" on a card if they desire union representation.

It's not so much the actual checking of the card the NGA and others, including the U.S. Chamber of Commerce, oppose about the "card check" provision and the overall Employee Free Choice Act -- which passed the U.S. house of Representatives last year and just lost in the Senate in 2007 by a couple votes and is supported by President-Elect Obama -- it's the fact the legislation makes it much easier for workers and unions to organize, compared to the current system, that they strongly oppose.

In fact, the NGA says defeating the Employee Free Choice Act is its number one legislative priority for 2009, a top priority it shares with numerous other trade associations and U.S. corporations and small businesses. [Read more about the association's top legislative priorities here.]

However, the Employee Free Choice Act happens to also be the top priority for 2009 of organized labor -- getting the legislation passed that is. And, since organized labor was a key force in getting President-elect Obama elected, they have a strong ear in the incoming President, who says he supports passage of the act. Obama supported the act as a Senator in 2007 as well. He also sopported the act during his campaign for President.

Additionally, there is overwhelming support for the Employee Free Choice Act and its "card check" provision in the Democratically-controlled U.S. House of Representatives. House Speaker Nancy Pelosi has said she will bring the legislation up for a vote in 2009, adding that it will pass in the House by "even more than it did in 2007."

There also is majority support in the U.S. Senate for the Employee Free Choice Act. The legislation failed last year by only a couple votes. Since then the Democrats have picked up additional Senate seats in the 2008 election. They have about 58 seats so far and could add another depending on the outcome of the contested Senate race in Minnesota.

The Senate needs 61 votes to prevent a filibuster on the legislation (and on any legislation) by Senate Republicans. It's expected that with 58-59 Democrats voting in favor of the legislation (that assums all will vote in favor which isn't a given), plus the ability to pick up the two Independents in the Senate, plus a moderate Republican or two, like the two moderate Republican Senators from Maine for example, the legislation could pass the Senate with a filibuster proof majority.

It won't be easy though -- and corporate and trade association lobbyists have already started their campaigns against the legislation, even before the new President and new Congress takes office and even before new Employee Free Choice Act legislation has been introduced. It's called a premptive attack.

Lastly, the NGA letter urges the President-elect to make sure federal anti-trust legislation is strongly enforced. The trade group is concerned about any potential concentration of business among supermarket chains in the U.S. in terms of such actions posing a unfair competitive advantage to its independent grocer members. This includes wanting strict enforcement of the Robinson-Patman Act, which prevents price discrimination and related anti-competitive behavior. It's often been applied in food retailing mergers and other related issues of direct interest to the supermarket and grocery industries.

Some might say the trade group is pro-government regulation and legislation as long as it benefits it members, but anti-government legislation and regulation if it hurts its members. Such an argument is essentially correct -- not just for the NGA but for every trade association and interest group in Washington, D.C. This is how business is done in the nation's capital today. Competiting interest groups that are against government intervention of any kind on Monday are all for government regulation -- new laws, financial bailouts, ect. -- on Wednesday, depending on which of those two days their members' interests are being served.

Welcome to Washington, D.C. President-elect Obama. That's right, you've already been in the capital for a few years as a U.S. Senator. So you know how it all works.

Meanwhile, Mr. President-elect we do suggest you look out for the nation's independent grocers as they are a vital and dynamic part of food and grocery retailing in America. They are among the innovators. They are the home town folks -- the grocers who serve and give back to their communties the most generally. They also serve as the idea factory for the entire industry. If you see something a big chain is doing that's innovative, it's likely they got it from an independent.

Of course independent grocers, like all of us, need to look at the bigger picture as well. For example, the NGA might want to eliminate the estate tax completely. But we suggest that money might be needed to pay for all the corporate bailouts the Bush Administration is doing in its remaining days. Some of it also might be needed to feed the growing number of out of work and hungry Americans.

Don't forget NGA, it was the massive deregulation under President George W. Bush, who you supported twice, that is costing American taxpayers, including your member companies, trillions of dollars to bailout the financial institutions and now the Detroit automakers.

Great call on supporting President Bush twice by the way NGA -- he sure is an economic conservative, isn't he? The latest tally looks like he will be credited as being the biggest spender as President since LBJ and his great society. At least U.S. society got some benefits from LBJ's blank checks though. Mr. Bush leaves the country broke and in near-depression. The guns are in need of being replaced and there's very little butter. (Just rubbing it in a bit -- we all make bad calls; but twice?)

It's all about compromise though. Right NGA? Right Mr. President-elect? We need to do much of that in 2009 in order to get the country back on its feet, and to create stronger consumers who have the money to support America's independent grocers, who are the backbone of America and don't ask for bailouts, just like the majority of us. Fewer demands from the left and right and all around, more cooperation -- that should be the mantra for 2009, in our analysis.

Notes:

>View the letter sent to President-Elect Obama by the NGA...NGA's campaign against the Employee Free Choice Act: N.G.A. Action Alert -- Oppose the Anti-Democratic EMPLOYEE FREE CHOICE ACT...Advertisement against: CDW Latest Print Advertisement...NGATV (its in-house Web Network) PR spot on its opposition to the Employee Free Choice Act: Watch now.

Retail Memo: FTC Postpones Scheduled February 16 Administrative Hearing on Whole Foods-Wild Oats Deal Break-Up Until April 6, 2009

FTC v. Whole Foods Market - Whole Foods Market v. FTC

The U.S. Federal Trade Commission (FTC) has given Whole Foods Market, Inc. an extension on its scheduled February 16, 2009 administrative hearing/trial before an FTC Administrative Law Judge. The FTC has postponed the hearing, in which the FTC-picked judge will hear arguments for and against the deal and make a decision either way, until April 6, 2009.

Whole Foods Market had requested a postponement of the hearing until at least September of next year because it said it wants to await the rulings and outcome of the ongoing hearing in the U.S. Federal Court for the District of Columbia courtroom of Judge Paul Friedman.

At a hearing yesterday on the legal matter of the FTC's attempt to overturn Whole Foods' acquisition of Wild Oats Market, Inc. last year, Judge Friedman expressed his desire that both the FTC and Whole Foods Market, Inc. essentially freeze any actions they might take until he resolves the matter.

Judge Friedman said at the hearing yesterday he will first rule on a motion by the FTC to have Whole Foods' lawsuit against the regulatory agency dismissed. Whole Foods Market, Inc. is arguing in the lawsuit that the FTC has violated the company's due process rights with its ongoing campaign to overturn the merger with Wild Oats, a deal Whole Foods' says is essentially completed.

The FTC's postponing its administrative hearing until April 6 appears to be a nod to Judge Friedman's desires expressed yesterday at the hearing, along with a compromise with Whole Foods. Instead of waiting until September, which is the general hearing date Whole Foods' lawyers requested, the FTC opted for April 6, 2009.

An FTC spokesperson says an extension of the February 16 hearing date to April 6 was warranted because the outcome of Judge Friedman's hearings, of which yesterday's was the first, in which he is reconsidering the FTC's request for an injunction to suspend the merger, could impact the FTC's administrative hearing.

The federal court judge originally ruled in Whole Foods Market, Inc.'s favor in its friendly acquisition of Wild Oats last year, giving the natural foods grocery chain the green light to go forward with integrating Wild Oats and its stores into Whole Foods' operations and culture.

However, the FTC reopened its administrative case against the deal after that. This summer a federal appeals court ruled the FTC could go forward with its legal request to overturn the acquisition-merger. That's how the February 16, now April 6, 2009 administrative hearing/trial was set.

Meanwhile, earlier this month Whole Foods' filed a lawsuit asking that the case be removed from the FTC's jurisdiction and settled once and for all in federal court. The FTC fired back, asking Judge Friedman's court, where the matter is being heard, to dismiss Whole Foods Market, Inc.'s lawsuit.

Yesterday Judge Friedman held the first new hearing on the case. As mentioned, he said he will first rule on the Whole Foods Market lawsuit before taking up the overall case.

[You can learn more by reading our coverage and analysis from yesterday at the links here: December 22, 2008: Retail Memo: At Hearing Today Judge Tells FTC to Provide Road Map of How Whole Foods Could Take About Merged Companies Should Ruling Go In its Favor. December 22, 2008: Retail Memo: Whole Foods Market Wants to Depose and Obtain Internal E-Mails From FTC Commissioner, Suggesting Possible Conflict of Interest Situation. December 22, 2008: Retail Memo: Only Slightly More Than Half the 93 Natural Foods Retailers Issued Subpoenas By Whole Foods in its Case against the FTC Have Complied.]

It isn't clear if Judge Friedman will have made a decision on the merger by the April 6 FTC hearing date. He said yesterday he will take up the FTC v. Whole Foods overall case only after he rules on a number of motions and on the Whole Foods Market, Inc. lawsuit against the FTC.

Up next will be Judge Friedman's ruling on various motions and on Whole Foods Market, Inc.'s lawsuit in which it argues the FTC violated its due process rights and in which it wants the federal court to take over the proceeding, which if granted would be a ruling by the judge against the FTC's holding its April 6 administrative hearing/trial.

Right now we don't see the judge stopping that hearing. However, if he rules on the overall legal issue, Whole Foods acquisition of Wild Oats, such a ruling could make the FTC administrative hearing on April 6, 2009 moot.

But there are plenty of appeal opportunities as well. If the April 6 hearing is held, and Whole Foods were to lose and is ordered to break up the combined Whole Foods-Wild Oats, it can appeal such a decision by the FTC Administrative Law Judge to the federal court.

Conversely, if Judge Friedman rules in favor of Whole, which would be the second time he did so if it happens, before the FTC April 6 administrative hearing next year, the rules allow the FTC to appeal that decision to the U.S. federal court of appeals, the same body that overturned Judge Friedman's original ruling in favor of Whole Foods Market, Inc.

There are limitations for both parties throughout this process however.

Even so, like the great New York Yankee baseball player and sidewalk philosopher Yogi Berra liked to say, we could be seeing deja vu all over again, in this case in the matter of FTC v. Whole Foods Market, Inc.

Retail Memo: Only Slightly More Than Half the 93 Natural Foods Retailers Issued Subpoenas By Whole Foods in its Case against the FTC Have Complied

FTC v. Whole Foods Market - and the subpoenas

Nearly three weeks ago Natural~Specialty Foods Memo first reported that to date then only about 50 of the 93 natural foods retailing companies that received subpoenas for sales data, financial information and other trade secrets from Whole Foods Market, Inc. had complied with the subpoenas and submitted the information, and that a number of the retailer's that did comply thus far have submitted only partial information, omitting some of the proprietary information demanded in the legal document.

Today, weeks later, still only about 50 of the 93 natural foods retailers issued the subpoenas have complied, according to a recent filing with the federal court by Whole Foods Market, Inc. in which it has asked for an extension on submitting various legal arguments because it still needs the data from the companies yet to provide in order to do so, it says. The deadline to comply with the subpoena was November 4, over six weeks ago.

Whole Foods issued the subpoenas for the trade secrets as part of its defense against the U.S. Federal Trade Commission's (FTC) legal case in which the regulatory agency is trying to overturn the natural grocery chain's friendly acquisition last year of Wild Oats Market, Inc., on the grounds a combined Whole Foods-Wild Oats is a monopolist in numerous U.S. markets in what the FTC calls the "premium natural and organic retailing segment."

Most of the 93 U.S.-based natural foods retailing companies Whole Foods Market, Inc. issued the subpoenas to are privately-held companies. As such they aren't required to report sales and related financial information on a quarterly basis like public companies, such as Whole Foods, are required to do. Hence the subpoenas to obtain this proprietary information.

This isn't the only reason Whole Foods took the subpoena route though. The natural foods grocery chain also is demanding information from the 93 retailers such as if they have any plans in the future to open new stores in their respective market regions. The 93 retailers have natural foods stores in about 29 U.S. markets where the FTC says Whole Foods post the Wild Oats acquisition holds a monopolist position in.

The subpoenas also demand information from these 93 retailers such as providing the court and Whole Foods' lawyers with internal company e-mails in which discussion via-a-vis competition with Whole Foods and related topics might have been discussed.

Whole Foods' Market, Inc. and its outside legal counsel say all this information is needed in order for it to prove the chain does not pose an anti-competitive force to consumers or other retailers in the various U.S. markets where the FTC argues it does. Whole Foods' also says, as does the FTC, that only Whole Foods' legal council and the FTC commissioners will view the information.

As we've been reporting on and writing about, one of the 94 retailers, Portland, Oregon-based New Seasons Market, a nine-store natural foods chain, fought the Whole Foods subpoena in court. Last week a judge ruled against New Seasons and in Whole Foods' favor, giving the Portland natural grocer until December 29 to submit the information demanded in the subpoena.

Brian Rohter, the CEO of New Seasons, said last week he is huddling with his lawyers looking into the potential of appealing the decision. As of today, December 22, he has yet to decide if New Seasons will file an appeal.

Meanwhile it looks like the other 42 natural foods retailers that received the subpoenas have just decided to ignore them rather than fight the demands for information in court like New Seasons has done. After all, November 4 is long passed. New Seasons is the only one of the 93 natural products retail companies that's challenged the subpoena in court to date.

Additionally, in its court filing requesting an extension, Whole Foods Market, Inc. says much of the information it has received from those retailers who've complied with its subpoenas is lacking the detailed information demanded in the legal documents.

As of today, Whole Foods' legal counsel had no comment on what if anything it plans to do to require the remaining retailers to comply with the subpoenas or to get the additional information it says it needs from those retailers who have complied but only submitted partial information, other than to issue the retailers another subpoena and demand in writing they comply.

One of the demands in the subpoenas is that the retailers locate and print any and all e-mails within the company, both at headquarters and store-level, that might discuss competitive issues as they relate to Whole Foods and its acquisition of Wild Oats. This was the only aspect of the subpoena the FTC Administrative Law Judge, D. Michael Chappell, ruled in favor of last week for New Seasons Market in its appeal, saying New Seasons had to comply with all demands in the subpoena except for that one, ordering the Portland grocer to provide just the e-mails from corporate headquarters' staff and not those from store-level employees. The judge held New Seasons must comply with all other demands in the subpoena though.

New Seasons Market CEO Rohter says his biggest concern about submitting the trade secrets information to Whole Foods Market is that he doesn't believe the natural grocery chain's promise, which it says is backed by the court and the law, or the FTC Administrative Law Judge's agreement with Whole Foods in this one instance at least, that other than its legal counsel no other employees of Whole Foods Market, Inc. will be able to view the information.

"I can only shake my head at the judge's position that our private files will somehow be protected,"Rohter wrote in his company Blog on Friday regarding the judge's decision. "The reason I'm doubtful is because this same promise was made in this same case in 2007 and what really happen was quite different. First of all, one of Whole Foods lawyers, who is actually an employee of their company and who is on their Leadership Team, was allowed to see confidential information that was submitted. Second, the FTC accidentally posted information that was marked 'confidential' on their web site."

As it stands now, New Seasons Market has seven days, until December 29, to either comply with the subpoena in whole or in part like many of the other retailers have, do nothing and avoid complying, or file some sort of an appeal to the FTC Administrative Law Judge's ruling requiring the natural foods grocer to submit its trade secrets to Whole Foods Market, Inc.'s lawyers.

Many of the remaining 42 or so retailers are taking the second approach, avoiding responding to the subpoena all together. It's Christmas week, then the New Year holiday period. Much of Washington, D.C., including the federal courts, will be closed. Therefore, nothing much can happen in terms of Whole Foods' getting any action on the subpoenas for the next few weeks, as a result.

The FTC's administrative hearing on the Wild Oats' acquisition is set for the third week in February. That gives Whole Foods little time after the new year to obtain and compile the information it says is key in order to prove its case that it's not monopolist at that February, 2009 hearing.

Reader Resources

FTC v. Whole Foods Market - Whole Foods Market v. FTC: Recent coverage and analysis in Natural~Specialty Foods Memo (NSFM):

December 22, 2008: Retail Memo: Whole Foods Market Wants to Depose and Obtain Internal E-Mails From FTC Commissioner, Suggesting Possible Conflict of Interest Situation....December 22, 2008: Retail Memo: At Hearing Today Judge Tells FTC to Provide Road Map of How Whole Foods Could Take About Merged Companies Should Ruling Go In its Favor....

December 19, 2008: Retail Memo: Whole Foods' Lobbying Effort Baring More Fruit - House Committee Leaders Send Letter to FTC Chair Similar to One Sent By Senate Leaders.... 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 (NSFM) archives:

Click here, here and here for stories about the FTC-Whole Foods issue from our archives, including pieces about mass market and natural foods class of trade retail competitors.

Retail Memo: Whole Foods Market Wants to Depose and Obtain Internal E-Mails From FTC Commissioner, Suggesting Possible Conflict of Interest Situation

FTC v. Whole Foods Market - Whole Foods Market v. FTC

Lawyers for Whole Foods Market, Inc. at a hearing today requested a legal ruling from U.S. Federal Judge Paul Friedman which would allow the natural foods retailing chain to depose and obtain e-mail correspondence from an FTC official, J. Thomas Rosch, who is one of four current members of the regulatory agency that's trying to overturn Whole Foods' friendly acquisition last year of Boulder, Colorado-based Wild Oats Market, Inc. on anti-competitive grounds. Judge Friedman's court is in the U.S. Federal Court for the District of Columbia circuit.

Whole Foods wants to depose Commissioner Rosch, a Republican on the FTC appointed by current President George W. Bush, because he voted to investigate the merger while also briefly acting as the internal FTC administrative judge hearing the case.

Whole Foods Market also wants Judge Friedman to permit it to view e-mail correspondence from the FTC commissioner.

Whole Foods' lawyers are looking for any e-mails between Rosch and members of the FTC investigative staff, which Lanny Davis, a partner at the Washington, D.C. office of the Orrick law firm and the outside counsel who is heading up the case for Whole Foods Market, Inc., says could demonstrate a possible conflict of interest because the commissioner's acting as an internal FTC judge on the case at the time might conflict with his communicating with staffers investigating the case.

"We think there's an inference to be drawn that Commissioner Rosch was in contact with investigative staff," Davis said today, arguing that the Whole Foods legal team needs to obtain e-mails between Rosch and the staff.

Davis argued today that an appropriate remedy for FTC v. Whole Foods Market, Inc. would be to allow an FTC Administrative Law Judge to decide the case. But instead of requiring the loser to go to the four FTC commissioners, the case would be taken directly to an outside court. In other words, the federal court would decide the ultimate fate of the deal, which is what Whole Foods argues should be the remedy in its lawsuit filed earlier this month.

By statue the FTC has five members. However, it is one short at present. President-elect Barack Obama will choose a new commissioner after he takes office on January 20, 2009. Obama also will name a new chairman of the FTC. He can choose the new (fifth) member to be chairman, which is highly probable, or the President-elect can name a chairman from one of the four sitting members.

Regarding Lanny Davis' proposed remedy, the FTC has scheduled an administrative trial for February, 2009 in which an Administrative Law Judge picked by the FTC will hear the regulator's anti-competition case against Whole Foods and rule on it. Whole Foods can if it loses appeal the case to a U.S. federal court.

[See our story from earlier today for related and additional information on today's hearing at this link: Retail Memo: At Hearing Today Judge Tells FTC to Provide Road Map of How Whole Foods Could Take About Merged Companies Should Ruling Go In its Favor.]

In his proposed remedy, Whole Foods Market, Inc. lawyer Davis is essentially saying all four members of the FTC would have to recuse themselves from making a decision on the matter. "Yes, we would say the entire commission would have to be recused," he said today.

We don't see this happening. The FTC has held on for too long, 16 months, to recuse themselves from making a decision on the matter, unless of course the federal court rules that they can't do so.

Judge Friedman didn't make a ruling at the hearing today on Whole Foods' request to be able to depose Rosch and to obtain copies of his internal FTC e-mail correspondence.

As we reported in our piece earlier today, Whole Foods' lawsuit against the FTC, which it filed earlier this month, was discussed and debated by lawyers for both sides today. Whole Foods Market, Inc. says in its lawsuit the FTC has denied the company due process because it has not been impartial in its case against the natural grocer's friendly acquisition of Wild Oats Market, Inc. last year.

Mark Nebeker, an assistant U.S. attorney arguing for the FTC, asked for the Whole Foods lawsuit against the government (FTC) to be dismissed. "Our view is the court doesn't have a role," he said during the hearing.

Paul Denis, outside legal counsel for Whole Foods, disagreed, arguing not only that the case belongs in the federal court, and should be decided once and for all by Judge Friedman, but also that until the case is decided by the court the FTC should freeze any further administrative action on the case, including not holding the February, 2009 administrative trial is has planned.

As we reported here, Judge Friedman ordered the FTC to provide the court with a written outline of how it expects Whole Foods Market, Inc. to take apart the now nearly full-merged into Whole Foods Wild Oats corporation and stores. The judge also said it was his hope the FTC and Whole Foods would freeze their actions until he rules, meaning he wants neither to take any further steps regarding the case. He didn't put this in the form of a legal order though.

The FTC also brought up at the hearing today something it's argued for in the past but hasn't pushed for thus far in court, which is its opinion that Whole Foods Market, Inc. should set up separate divisions to operate Whole Foods and Wild Oats until the acquisition-merger case is finally resolved. It's not clear the FTC could get a court ruling on this even if it desires.

Whole Foods has said doing so is impossible, something Whole Foods' lawyer Paul Denis repeated again today at the hearing, because for all intents and purposes the two companies are now effectively fully-merged.

Denis argued that Whole Foods has integrated functions like human resources and purchasing, as well as creating a single distribution network -- all true -- and said if the natural grocer were to have to set up two operating companies it would have to create two separate functions for every department, resulting in huge costs and inefficiencies to the company, as well as making little sense at this point in the merger's integration process, which is nearly completed.

Judge Friedman didn't seem too concerned about this. When Denis was finished making his argument, the judge replied: "So what."

Judge Friedman previously ruled in favor of Whole Foods on the deal, giving the natural grocery chain the green light to integrate Wild oats into its operations and culture.

A federal appeals court overturned that decision, tossing the case back into Judge Friedman's court now, about 16 months after the deal was first announced.

In addition to the FTC v. Whole Foods Market, Inc. core case, the judge also now is considering Whole Foods Market, Inc. v. FTC, the natural grocer's lawsuit to have the case taken away from the FTC and decided by the federal court.

Something tells us Judge Friedman is less than happy to have the case back in his courtroom. However he signaled today he plans to give the deal complete new consideration in terms of the anti-competitive arguments from the FTC, saying at the hearing that the appeals court wouldn't have sent the case back to him unless it thought doing so was valid.

Judge Friedman didn't make any rulings today besides the order that the FTC provide his court with a written road map of sorts describing what it sees as potential ways (remedies) Whole Foods Market, Inc. could take apart the combined Whole Foods-Wild oats should the natural grocer lose the case.

Reader Resources

Note: You can read new materials filed by the FTC on Friday, December 19 at the FTC Web site here .

NSFM Related story from today: Retail Memo: At Hearing Today Judge Tells FTC to Provide Road Map of How Whole Foods Could Take About Merged Companies Should Ruling Go In its Favor

FTC v. Whole Foods Market - Whole Foods Market v. FTC: Recent coverage and analysis in Natural~Specialty Foods Memo (NSFM):

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 (NSFM) archives:

Click here, here and here for stories about the FTC-Whole Foods issue from our archives, including pieces about mass market and natural foods class of trade retail competitors.

Retail Memo: At Hearing Today Judge Tells FTC to Provide Road Map of How Whole Foods Could Take About Merged Companies Should Ruling Go In its Favor

FTC v. Whole Foods Market - Whole Foods Market v. FTC

The U.S. District Judge, Paul Friedman, who previously ruled in favor of Whole Foods Market, Inc.'s friendly acquisition of Wild Oats Market, Inc. last year, today directed the U.S. Federal Trade Commission (FTC) to detail in writing how Whole Foods could stop its essentially completed merger with Wild Oats, including offering ways it could take apart the merged chains if a ruling were to overturn the 2007 deal. In legal terms Judge Friedman is asking the FTC to detail the proposed remedy were a ruling to go in its favor.

This is a partial win for Whole Foods in its battle with the FTC because it's the first time the U.S. Federal Court has stepped into the matter since the natural foods grocery chain filed its lawsuit against the FTC two weeks ago. The FTC's having to reveal a proposed remedy in writing also will allow Whole Foods Market, Inc. to see what the regulator has in mind for the combined Whole Foods-Wild Oats combined company should it win in court.

But the judge's order to the FTC also is a partial win for the FTC because the federal judge hearing the case signaled he is open to a close re-examination of his previously ruling on the deal; a ruling that was in favor of Whole Foods.

At a "status hearing" today (the first on the matter) on the FTC v. Whole Foods Market, Inc. case, Judge Friedman also said he will make a determination as to weather the acquisition is anti-competitive, which is something Whole Foods Market, Inc. is asking the U.S. Federal Court to do.

Judge Friedman's previous decision that the acqusition-merger is not anti-competitive -- the legal decision which prompted Whole Foods to go forward with integrating the Wild Oats stores into its operations -- was overturned by a three-judge federal appeals court panel, which then sent the case back to the judge for another examination.

At today's hearing, the first hearing since the appeals court's ruling in favor of the FTC, Judge Friedman said his desire is for Whole Foods Market, Inc. and the FTC to come to a "possible agreement to keep things frozen in place or semi-frozen in place while I tee up the remand proceeding." In other words, he wants nothing to change until he makes a ruling once again on the acquisition-merger, and determines if it is or isn't anti-competitive.

This suggestion by the judge poses a conflict for the FTC (and thus Whole Foods as well) because it plans to hold an administrative trial before an FTC-named Administrative Law Judge in February, 2009, as we've reported, in which that judge will offer a ruling on whether or not the acquisition-merger should be overturned.

Judge Friedman was clear in his words today that he wants nothing to occur until he makes a legal decision on the case. He could make such a decision before or after February of next year.

Judge Friedman's instruction to the FTC at today's hearing to provide a roadmap of how Whole Foods could take apart the now essentially completed merger was influenced strongly by arguments made by one of the lawyers from Whole Foods Market, Inc.'s outside law firms, antitrust attorney Paul Denis.

Denis, who is with Dechert LLP., one of the three Washington, D.C.-based law firms representing Whole Foods in the case, argued at the hearing today that Whole Foods and Wild Oats stores "already operate as one unit." "We have one human resources system...We have one purchasing system," he told Judge Friedman. Denis is a partner with Dechert LLP.

In an interesting development following Denis' remarks at the hearing, FTC attorney Matthew Reilly said it would be difficult, but not impossible, for Whole Foods to stop the integration with Wild Oats that has been occurring for the past 16 months. He told the judge 19 Wild Oats stores have closed since the merger. Another 70 Wild Oats stores are in the process of "rebranding" to operate under the Whole Foods banner.

He left out the near-40 Henry's and Sun Harvest banner stores Whole Foods Market, Inc. sold off to Smart & Final, Inc, shortly after the deal was done last year. Additionally, most of the 70 Wild oats banner stores mentioned are either already rebranded or almost so, including some that have been remodeled or are in the process of being remodeled.

Judge Friedman agreed on both the difficulty but the not impossible nature of Whole Foods' taking apart the merged companies saying in response to the FTC lawyer's remarks that "a higher court wouldn't have sent the case back to me if they thought nothing could be done (in terms of stopping the integration)."

Therefore the judge instructed the FTC to provide him with a written, detailed overview of how it believes Whole Foods Market, Inc. could achieve a break up at this point in time.

This is positive news for the FTC in that the judge is saying there was cause for the federal appeals court to return the anti-competitive case back to his court, and in asking for the new information from the agency he is signaling that he's not closing the door on further analysis of the deal post-appeals court, despite earlier ruling in Whole Foods' favor. As we mentioned earlier, it also will give Whole Foods a look at what the FTC plans regarding a break up, which is something the natural grocer has no idea of at present.

The FTC has argued for the last 16 months that a combined Whole Foods-Wild Oats presents a anti-competitive monopoly in what it calls the "premium natural and organic retailing segment" in numerous U.S. Markets. Whole Foods says this is false -- that a combined Whole Foods-Wild Oats actually offers a benefit to consumers, and that the natural foods chain has more than enough competition in all U.S. markets.

Whole Foods' lawyer Paul Denis told Judge Friedman at the hearing today that the FTC has failed to take into account the evolution of the natural and organic foods retailing industry in which there are numerous retailers of all formats selling the category products today, suggesting to the judge he should take this into account, including the increased number of players that have come on the scene in the 16 months since the friendly acquisition of Wild Oats by Whole Foods was completed.

As Natural~Specialty Foods Memo readers are aware (and others can read about in our past posts linked at the end of this piece), we have been arguing since last summer that the FTC's argument that a combined Whole Foods-Wild Oats presents a monopoly is unfounded for two primary reasons.

First, that its definition of the "premium natural and organic retailing segment" (which is the central basis or fulcrum of its entire anti-competitive argument) is irrelavent today because natural and organic products retailing in the U.S. today (and last summer as well) is a multi-format, competitive industry in which consumers no longer need rely on a single retailer like Whole Foods for a complete selection of category products.

Extensive selections of fresh and shelf-stable natural and organic foods can be purchased today at supermarkets -- stores owned by Safeway Stores, Inc., Kroger Co. and Supervalu, Inc., for example (all three of these big national chains even have their own store brands of organics); at scores of regional chains (think Publix in the south, Wegmans in the east, Raley's in the west for just three major examples) and at hundreds of independents; at major mass merchandisers such as Wal-Mart, Target, Costco, BJ's Wholesale Club and others; at specialty chains like Trader Joe's and others; as well as at fast-growing natural foods chains like Sunflower Farmers Market, Sprouts Farmers Markets, Earth Fare and many others across the country, including hundreds more independent and co-op natural foods markets.

Additionally, we've argued that demonstrative evidence in the form of Whole Foods Market, Inc.'s performance over the last 16 months since it acquired Wild Oats shows anything but a monopolistic natural foods chain in action.

For example:

>Whole Foods net income was off by a whopping 40% in its last quarter.

>Whole Foods stock share value is off by 70% from its high following the Wild Oats acquisition.

>Whole Foods fired over 100 headquarters employees a few months ago because of its dramatic drop in income and sinking value as a company.

>Whole Foods has cut in half its growth plans for fiscal year 2009, reducing by more than half from about 35 to about 15 the number of new stores it had previously planned to open, along with cutting back on store remodeling programs.

>Whole Foods had instituted an across the board, at its headquarters and in its stores, cost-cutting program, instructing employees to better rationalize all expenses in what are tough times for the natural grocery chain.

>Whole Foods just sold 17% of the company in order to raise $465 million, which is needs not only to help pay off the about $150 million in debt it acquired as part of the Wild Oats merger, but also needs for funding its basic operations expenses, as well as to fund its scaled-down growth plan for fiscal 2009.

If it walks tall like a "natural and organic premium retailing segment" duck and talks loudly like a "premium natural and organic retailing segment" duck -- then it is one. But Whole Foods Market, Inc. neither looks like a category retailing monopolist based on its performance over the last 16 months nor is it walking and talking like one. The fact is it's far from it on all counts.

In fact, the FTC is about the only entity, or person, that thinks Whole Foods Market, Inc. presently holds a monopolist position of any kind in any market. Those in the natural and organics product industry, including most of Whole Foods' retail competitors and its suppliers, currently are viewing the natural foods chain as a struggling retailer, wondering what it will do next to improve its performance.

At the hearing today Judge Friedman also commented on Whole Foods' lawsuit against the FTC, in which the natural grocer asks the federal court to dismiss the regulator's administrative case against it and rule once and for all on the Wild Oats' acquisition. The lawsuit is before Judge Friedman.

In countering, the FTC has asked the Judge Friedman to dismiss Whole Foods' lawsuit against its case.

Judge Friedman said today he would rule on the government's (FTC) dismissal motion of Whole Foods Market, Inc.'s lawsuit before he takes up whether Whole Foods' purchase of Wild Oats was anti-competitive.

This means we will first see a ruling on the lawsuit from the judge before he begins hearing the FTC v. Whole Foods case (the overall case against the deal) that was returned to him by the federal appeals court.

Stay tuned.

Reader Resources

FTC v. Whole Foods Market - Whole Foods Market v. FTC: Recent coverage and analysis in Natural~Specialty Foods Memo:

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, including pieces about mass market and natural foods class of trade retail competitors.