Too Hot to Handle: Internal Party Documents in Whole Foods and Other Modern Merger Challenges

The Antitrust Source

13 Pages Posted: 4 Dec 2008

Date Written: October 1, 2007


Documents are an essential part of any government merger investigation or trial. Indeed, the significance of documents in antitrust cases is underscored by the primacy that 4(c) documents are given by antitrust regulators during the initial Hart-Scott-Rodino waiting period and the substantial document requests accompanying a second request investigation. Some antitrust practitioners likely recall the days of searching through company warehouses to respond to a government subpoena or request for documents. Today, although the initial searches are more likely performed by information technology personnel, the volume of documentary material has expanded almost exponentially. The costs and burdens of analyzing these materials for both the merging parties and the government have always been substantial and only appear to be increasing, although some recent reforms have been beneficial. With all of the time and money expended on producing and reviewing documents, it only seems reasonable to wonder what exactly will be proved with all of this paper. Of course, the ultimate question is what the courts make of all this.

In the recent Whole Foods preliminary injunction hearing, documentary evidence played a particularly prominent role in the government's case. The FTC relied on a large number of documents, including several with colorful statements from Whole Foods' CEO John Mackey. The court nevertheless disregarded most of the FTC's documentary evidence without explanation, leaving practitioners to wonder what role, if any, documents can play in merger challenges.

Keywords: merger review, documentary evidence

Suggested Citation

Tucker, Darren S. and Yingling, Kevin, Too Hot to Handle: Internal Party Documents in Whole Foods and Other Modern Merger Challenges (October 1, 2007). The Antitrust Source. Available at SSRN:

Darren S. Tucker

Vinson & Elkins LLP ( email )

2200 Pennsylvania Ave NW
Washington, DC 20037
United States

Kevin Yingling (Contact Author)

Google Inc. ( email )

1101 New York Ave., NW
Second Floor
Washington, DC 20005
United States

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