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    January 7, 2009  
Lanny Davis;
Whole Foods;
Attorneys Fees


Start with a law practice, add a dash of PR expertise, a half cup of lobbying, and mix well. That’s the recipe for Lanny Davis’s “Legal Strategic and Crisis Management” group at Orrick, which advises clients facing legal issues with a heavy PR element. The client of the moment is Whole Foods, which brought in Lanny’s SWAT team to assist with its public tussle with the FTC.


Lanny, left, with his Orrick crew: Cecilia Showalter, Eileen O’Connor, John Pitts, and Josh Galper. The Whole Foods affair grew out of its $565 million merger with grocer Wild Oats. The FTC lost a request for a preliminary injunction to hold up the deal in Federal District Court in 2007, a point at which, Eileen tells us, the FTC normally would drop its opposition. But the FTC has pressed on in the Federal case and, separately, scheduled a proceeding challenging the merger at the agency (trial is set for next month). That was in October, when Whole Foods and its antitrust counsel, Dechert’s Paul Denis, brought Lanny’s team on board.


They chose to go on the offensive and in December sued the FTC, claiming violations of Whole Foods’s equal protection rights (based on different standards for merger challenges at the FTC and DOJ) and fundamental due process. Whether the suit will succeed is an open question, but it’s hard not to like a complaint that opens with a quote from Alice in Wonderland. In addition to legal (and literary) services, Lanny’s group advises on PR tactics. He had been special counsel and spokesman for President Clinton, while Eileen did 12 years as a producer at ABC News.


More members of the litigation team, clockwise from back left: Anthony Kim, Garret Rasmussen, John, Cecelia, Jonathan Direnfield, and Eileen. Lobbying is the third prong of the group’s attack. For Whole Foods, they’re working with the Glover Park Group, headed by former Clinton spokesman Joe Lockhart, and seem to be getting some traction on the Hill. In December, eight Senators wrote the FTC Chair about a rule change relevant to the case, and later in the month the Chair and ranking Member of the House Judiciary Committee inquired about disparities in merger reviews at the FTC and DOJ (which lies at the heart of Whole Foods equal protection claim).

Attorneys Fees in Contract Cases? Really?

Occasionally, people in the ivory towers debate things that are worth millions of dollars in real life. Enter Keith Diener, GWU LLM in international and comparative law, who tells us “contrary to the belief of most American lawyers, attorneys fees are recoverable in international contract disputes.” We couldn’t believe our ears, but Keith’s theory is apparently sound—it’s based on the UN’s Convention for the International Sale of Goods, and his thesis laying it out won him the worldwide Clive Schmitthoff Essay Competition (not to mention $5,000) this fall. If you’re hungry for details, check out last month’s Nordic Journal of Commercial Law.

John Ford is Bisnow’s Legal Editor. Send him your award-winning story ideas at john@bisnow.com.

Apatoff Peters
Cardinal Bank

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