8/8/2019 Case Study Ftc Versus Whole Foods and Wild Oats

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The call came late on a Friday afternoon: the Federal Trade Commission wanted to block tproposed merger of Whole Foods and Wild Oats, and the parties were to square off in couless than two weeks. What could FTI do to help? And how fast could FTI do it?

The following Monday morning at 8:30 A.M., FTI communications and technologyconsultants were sitting across the desk from lead counsel Paul Denis of Dechert LLP,reviewing preliminary graphic concepts and proposed courtroom technology requirementBy lunchtime, FTI consultants had already been in court with defendants’ counsel andparticipated in an all-counsel strategy session. By the end of the day, FTI’s Trial Servicesprofessionals were fully engaged and rmly embedded in the trial team.

Over the next seven days, FTI provided continuous communications consulting, graphic deand production, and technology consulting to prepare for what was in every sense of the a “bet the company case.” And in this case, the defendant companies and defense counselplaced their bet on FTI.

FTI Trial Services was retained by defendants to provide support for a two-day expeditedhearing before Judge Paul Friedman in United States District Court in Washington, DC. TheFTC was seeking to block the merger of Whole Foods and Wild Oats claiming the merger weliminate competition by allowing Whole Foods to acquire, and then close, existing Wild Ostores thereby allowing Whole Foods to raise prices and harm consumers in the “premium natural organic supermarket” (PNOS) market.

A key aspect to the defense was demonstrating that vigorous competition for PNOS shoppexists in a market much larger than Whole Foods and Wild Oats—indeed, a market that toincludes virtually every supermarket available to shoppers interested in purchasing naturaand organic products. Another key defense theme was rebutting the FTC’s allegation that

these PNOS shoppers constituted an enormous percentage of Whole Foods and Wild Oats customers, an allegation belied by market data and effectively emphasized with supportinconceptual graphics.

FTI Trial Services professionals worked continually with trial team members over a nine-daperiod to rene these themes through effective and persuasive use of graphics and trialtechnology. From early in the morning until late at night—sometimes through the night - worked side-by-side with the trial team to ensure that the day trial began, Whole Foods anWild Oats would have a compelling presentation to rebut the FTC’s allegations.

But FTI’s support didn’t end when trial began. As lines formed outside the courtroom for thigh prole case watched keenly by the business and investment communities, FTI was in courtroom providing graphics and real-time technology support to Mr. Denis and the defeteam. Two senior FTI professionals were present for the entire two days of trial, developininstant graphic treatments and revisions, presenting documents and videotape on a large

projection screen viewed by the judge, counsel and packed gallery, and ensuring that in tend defendants’ presentation of the case was seamless, persuasive, and powerful.

A few days later, Judge Friedman rendered his verdict: the FTC claim was denied, and WhoFoods and Wild Oats were cleared to proceed with the merger. A subsequent appeal by thwas also denied by the appeals court, sealing the victory for Whole Foods and Wild Oats, trial team, and FTI Consulting Trial Services.

the cases behind

the headlines

FTC versus WholeFoods and Wild oaTsdeCherT llP, skadden arPs, vinson & elkins

FTI graphics experts can create a widerange of visual communications devicesto support the litigation team, including:

— Exhibit plans and outlines

— Opening statement presentations

— Witness presentations— Research presentations

— Hardboards

— 2D and 3D animation

— Interactive multimedia

— Timelines

— Technical and medical illustrations

— Tutorials

FTI Trial Technology professionals lendexpertise in the courtroom and warroom with:

— Best-of-breed courtroompresentation solutions

— Deepest bench of experiencedtrial technology consultants inthe industry

— TrialMax trial presentation software

FTI Jury consultants offer deep experiencedesigning research to investigate jurorperceptions by application of:

— Community attitude surveys

— Focus groups

— Mock trial research— Witness preparation

— Jury selection

— Post-trial interviews

8/8/2019 Case Study Ftc Versus Whole Foods and Wild Oats

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About FtI ConsultIng

FTI Consulting, Inc. is a global business advisory rm dedicated to helping organizations protect and enhance enterprise value in an increasingly complex

regulatory and economic environment. With more than 2,400 professionals located in most major business centers in the world, we work closely with clients

day to anticipate, illuminate, and overcome complex business challenges in areas such as investigations, litigation, mergers and acquisitions, regulatory i

reputation management and restructuring. More information can be found at www.fticonsulting.com.

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