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Next two weeks will be crucial

Published August 17, 2007 at midnight

The more than six-month saga of Whole Foods' purchase of Wild Oats isn't over. The next two weeks will be crucial.

If the Federal Trade Commission dashes to the appeals court, the first thing it will ask for is an immediate order stopping Whole Foods and Wild Oats from going through with their merger. Whole Foods said Thursday it agreed to wait until 10 a.m. MDT Monday to close the deal, but after that the merger can happen any time.

While odds before any appeals court are a crapshoot, the FTC may have a particularly tough audience with the U.S. Court of Appeals for the D.C. Circuit, experts said.

"It's a conservative court, they're pro-business," said Melissa Maxman, an antitrust lawyer and partner at Baker Hostetler in Washington.

If the appeals court sides with the FTC, that could doom the merger as the clock winds down. On Aug. 31, the financing for the deal expires, and both Whole Foods and Wild Oats have the right to walk away from the merger without paying the $15.2 million breakup fee. That day is also the deadline for Whole Foods to sell the 35 farmers market stores in Texas and California to Apollo Management LP.

The FTC separately has started an administrative case against the merger. That proceeding could take as long as a year, and Whole Foods would have the right to appeal if it loses. So even if the FTC ultimately might win before an administrative judge, Whole Foods would have long ago merged with Wild Oats and closed or sold off stores.

The administrative hearing "is not a realistic factor," said Gale Miller, a lawyer with Davis, Graham & Stubbs in Denver. "What's relevant is whether they can get a quick appeal from the Court of Appeals and have the court enjoin the merger pending the appeal."

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