FTC Case Study

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  • 1. FTC versus Whole Foods and Wild oaTs deCherT llP, skadden arPs, vinson & elkinst h e c a s e s b ehind The call came late on a Friday afternoon: the Federal Trade Commission wanted to block thet 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 technologyrange 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 shoppersFTI Trial Technology professionals lend exists in a market much larger than Whole Foods and Wild Oats—indeed, a market that todayexpertise in the courtroom and war includes virtually every supermarket available to shoppers interested in purchasing naturalroom 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 experiencedesigning research to investigate juror But FTI’s support didn’t end when trial began. As lines formed outside the courtroom for thisperceptions 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.
  • 2. 1. the mArket ACCordIng to the FtC 2. the reAl mArket3. Whole Foods vs. FtC vIeWs on Core Customers 4. stAples/oFFICe depot merger vs. Whole Foods/ WIld oAts merger5. entry oF WIld oAts In A hypothetICAl mArket 6. subsequent entry oF Whole Foods In A hypothetICAl mArketAbout FtI ConsultIngFTI Consulting, Inc. is a global business advisory firm dedicated to helping organizations protect and enhance enterprise value in an increasingly complex legal,regulatory and economic environment. With more than 2,400 professionals located in most major business centers in the world, we work closely with clients everyday to anticipate, illuminate, and overcome complex business challenges in areas such as investigations, litigation, mergers and acquisitions, regulatory issues,reputation management and restructuring. More information can be found at www.fticonsulting.com.fticonsulting.com © FTI Consulting, Inc., 2008. All rights reserved.