August 27, 2008 / 8:47 PM / 11 years ago

Whole Foods asks FTC to not use official as judge

WASHINGTON, Aug 27 (Reuters) - Organic premium grocer Whole Foods WFMI.O has asked the Federal Trade Commission, which is assessing whether its merger with rival Wild Oats is legal, to use an administrative law judge to hear the case, not a commissioner already on record as questioning the merger.

The FTC has named Commissioner Thomas Rosch to oversee the case, but Whole Foods said he should recuse himself, citing the fact that he was one of the commissioners who voted in June 2007 to investigate the merger as one that potentially violates antitrust statutes.

“The commission should recuse itself and appoint an independent ALJ (administrative law judge) to preside over the trial of this matter,” Whole Foods said in a motion filed with the FTC on Aug. 22. It was posted on the FTC website on Wednesday.

The next hearing is a scheduling conference set for Sept. 8.

The commission had sought to challenge the merger last year, but Judge Paul Friedman of the U.S. District Court for the District of Columbia refused to issue a preliminary injunction stopping the merger. It was finalized in August 2007.

But the U.S. Court of Appeals for the District of Columbia ruled on July 29 that Friedman erred when he turned down an FTC request for an injunction to block the deal, essentially reviving the government’s case.

The commission is one of two agencies that assesses whether mergers violate antitrust law. (Reporting by Diane Bartz; Editing by Gary Hill)

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