1. FTC versus Whole
Foods and Wild oaTs
deCherT llP, skadden arPs, vinson & elkins
t h e c a s e s b ehind The call came late on a Friday afternoon: the Federal Trade Commission wanted to block the
t he h e a d l i nes proposed merger of Whole Foods and Wild Oats, and the parties were to square off in court in
less than two weeks. What could FTI do to help? And how fast could FTI do it?
FTI graphics experts can create a wide The following Monday morning at 8:30 A.M., FTI communications and technology
range of visual communications devices consultants were sitting across the desk from lead counsel Paul Denis of Dechert LLP,
to support the litigation team, including: reviewing preliminary graphic concepts and proposed courtroom technology requirements.
— Exhibit plans and outlines By lunchtime, FTI consultants had already been in court with defendants’ counsel and
participated in an all-counsel strategy session. By the end of the day, FTI’s Trial Services
— Opening statement presentations professionals were fully engaged and firmly embedded in the trial team.
— Witness presentations
Over the next seven days, FTI provided continuous communications consulting, graphic design
— Research presentations and production, and technology consulting to prepare for what was in every sense of the term
— Hardboards a “bet the company case.” And in this case, the defendant companies and defense counsel
placed their bet on FTI.
— 2D and 3D animation
— Interactive multimedia FTI Trial Services was retained by defendants to provide support for a two-day expedited
hearing before Judge Paul Friedman in United States District Court in Washington, DC. The
— Timelines FTC was seeking to block the merger of Whole Foods and Wild Oats claiming the merger would
— Technical and medical illustrations eliminate competition by allowing Whole Foods to acquire, and then close, existing Wild Oats
— Tutorials stores thereby allowing Whole Foods to raise prices and harm consumers in the “premium and
natural organic supermarket” (PNOS) market.
A key aspect to the defense was demonstrating that vigorous competition for PNOS shoppers
FTI Trial Technology professionals lend
exists in a market much larger than Whole Foods and Wild Oats—indeed, a market that today
expertise in the courtroom and war
includes virtually every supermarket available to shoppers interested in purchasing natural
room with:
and organic products. Another key defense theme was rebutting the FTC’s allegation that
— Best-of-breed courtroom these PNOS shoppers constituted an enormous percentage of Whole Foods and Wild Oats core
presentation solutions customers, an allegation belied by market data and effectively emphasized with supporting
— Deepest bench of experienced conceptual graphics.
trial technology consultants in FTI Trial Services professionals worked continually with trial team members over a nine-day
the industry period to refine these themes through effective and persuasive use of graphics and trial
— TrialMax trial presentation software technology. From early in the morning until late at night—sometimes through the night - FTI
worked side-by-side with the trial team to ensure that the day trial began, Whole Foods and
Wild Oats would have a compelling presentation to rebut the FTC’s allegations.
FTI Jury consultants offer deep experience
designing research to investigate juror But FTI’s support didn’t end when trial began. As lines formed outside the courtroom for this
perceptions by application of: high profile case watched keenly by the business and investment communities, FTI was in the
courtroom providing graphics and real-time technology support to Mr. Denis and the defense
— Community attitude surveys team. Two senior FTI professionals were present for the entire two days of trial, developing
— Focus groups instant graphic treatments and revisions, presenting documents and videotape on a large
— Mock trial research projection screen viewed by the judge, counsel and packed gallery, and ensuring that in the
end defendants’ presentation of the case was seamless, persuasive, and powerful.
— Witness preparation
A few days later, Judge Friedman rendered his verdict: the FTC claim was denied, and Whole
— Jury selection
Foods and Wild Oats were cleared to proceed with the merger. A subsequent appeal by the FTC
— Post-trial interviews was also denied by the appeals court, sealing the victory for Whole Foods and Wild Oats, the
trial team, and FTI Consulting Trial Services.
