Monday, December 29, 2008

It's Getting Harder to Mind Our Own (Local) Business. Updated Monday Evening 12/29

Monday Evening 12/29 Update is at the end of this post.

On Wednesday we heard from our attorneys that the Federal Trade Commission ruled that we have to turn our confidential internal financial, marketing and planning information over to Whole Foods Market. Here’s a link to the ruling. We disagree with and are disappointed in this decision. We’re huddling with the lawyers to figure out what our next step is going to be. It looks like we're going to appeal but I’ll get back to you once we have a clear direction. This isn’t over yet.

In the meantime, if you’re wondering why one of our competitors is demanding access to our private information, you can read about the details on this link.

Also, the Oregonian has written about this once more. Here's a link to the story in Friday's paper. I have a few comments to make on some of the information in the story.

I'm glad that Laura Gunderson, the reporter, pointed out that only 50 of the 93 companies that Whole Foods issued the subpoenas to have responded, even though the deadline is long past. It's comforting to know that we're not the only company saying "no" to these unreasonable demands.

And we appreciate that the FTC judge said "no" to Whole Foods really over the top demand that we should be forced to search through the email accounts and computer files of every New Seasons Market staff member who worked on a computer anytime in the last three years. That would have been hundreds of people.

Having said that, I can only shake my head at the judge's position that our private files will somehow be protected. The reason I'm doubtful is because this same promise was made in in this same case in 2007 and what really happened was quite different. First of all, one of Whole Foods lawyers, who is actually an employee of their company and who is on their “Leadership Team”, was allowed to see "confidential" information that was submitted. Second, the FTC accidentally posted information that was marked "confidential" on their web site. Those two incidents have contributed to my lack of confidence in the process.

Thanks again to the hundreds of people in Portland (and actually all over the country) who have offered us their support.

Update on Monday Evening 12/29
As many of you know, today was the deadline that the FTC set for us to submit our internal documents to Whole Foods. Lots of people have asked what happened with that. I can tell you that we have not turned over any information, but our lawyers have told me to stop discussing the other aspects of this case for the time being. I’ll get back to you with more details as soon as I can. Thanks again for all of your interest and well wishes.


Lynn S. said...

This is the biggest "what the--?" moment I've had in days. Stand firm, guys. Portland is behind you.

JB Becker said...

This is ridiculous. Keep fighting the good fight.

mydogischelsea said...

WTF?! This just isn't fair. For what it's worth, I'm boycotting Whole Foods. (Not that that particularly changes my shopping habits, but it's the thought that counts.)

Anonymous said...

So surprising and so disappointing. Makes me dislike Whole Foods.

Anonymous said...

Sounds like it is time to object that the "documents requested are not relevant to the issues raised in the Complaint.." as well as file objections on other grounds as well.

Yeah, like the Protective Order prevent leaks. Are they prepared to provide and pay for the necessary security and surveillance to insure this? Licensed and bonded? Oversight?

Also, how is that they prove exactly what documentation a private company does or does not have? Is the court prepared to issue a warrant and seize your business records if they do not feel it is adequate? Also, what about restitution for the expense to produce and present said documentation? Government charges you $10 a page or something for finding and mailing you something?

Sounds like time to bring in more guns to your legal team and start attacking this from fifty different angles.

Outraged in Sellwood said...

This is outrageous! Why should New Seasons have to turn over their entire business to Whole Foods? Is this not even America anymore?

Anonymous said...

No, no, no. New Seasons doesn't have to turn over their business to Whole Foods because of the FTC order.

If you would actually READ the order, all it says is that Whole Foods and New Seasons are now joint partners. The New Seasons brand will stay the same, the stores will remain open, it's just a partnership now.

sdgillis said...

Would love to have a new seasons tshirt to help show some support around town and talk about it.

Proceeds could go to the Food Banks etc or legal fees

good luck!

Leslie said...

I don't know much about the law, but I will send positive vibes and good feelings your direction. In the meantime, ILLEGITIMI NON CARBORUNDUM!

Incredulous said...

I think it's utterly ridiculous that New Seasons is claiming that this has nothing to do with them, when the FTC says there are only four retailers in the PNOS (premium natural and organic supermarkets): Whole Foods Market, Wild Oats, New Seasons and Earth Fair.

Apart from Whole Foods Market and Wild Oats, New Seasons represents one of two retailers in the PNOS market.

How is it that they can claim that they're not involved? The only thing more ridiculous than that claim is the FTC's actual complaint.

Anonymous said...

That's it, I'm going to new seasons right now to buy some bacon (which is still the best in town)

Anonymous said...

I have been a long time shopper at Whole Foods and spend hundreds of dollars there every month. I've never really shopped at New Seasons, simply because there isn't a store really close to me. For what it is worth, I won't be shopping at Whole Foods anymore and I'll be driving a few extra miles to a New Seasons and doing my business there. I have a dozen friends who shop at Whole Foods, as well, and I'll be sure to pass this info along. I also had no idea that New Seasons was a Portland-based store until reading your story-- I am always down for supporting local businesses.

Keep up the fight.

Elizabeth Mollo said...

I just heard about this. I am a former employee of New Season's (I worked at the Concordia store.) I quit a couple of years ago after I finished school and got a job in my field. I have been shopping at WF since then just because it was closer to my house. Now that I know this I am going to drive the extra couple of miles and support NS, instead of whacked out WF.

Hope all this resolves in your favor.

William E. Kovacic said...

I used to work at the SE New Seasons Store. Now I work for the Federal Trade Commission. I plan on still shopping at Whole Foods, even though New Seasons is closer. I am trying to drive less out of concern for the environment. That being said, I hope the FTC wins this one.

Anonymous said...

I like the T-Shirt idea, throw a splash of good old Portland irony on there. "New Seasons, now a subsidiary of Whole Foods." Maybe not that but something like it.

Also, you guys should countersue to see every e-mail they have with your name in it.

Vanessa M said...

Do not turn any company's confidential info to anyone. Get a better lawyer you shouldn't lose any case against these people. You've done nothing but give good service to Portland's people. And again it is of no matter to them your company's confidential information.

SevenCornersPeet said...

Lisa, Brian,
It's past time to start sending press releases about this imbroglio to the national news.
If all else fails, there's always not answering the subpoena--it's all the rage these days. Just ask Sarah and Todd Palin, Karl Rove, Harriet Miers, etc.

Anonymous said...

Can you band together with the other stores they are harassing and get national media attention?

They have no right to your inmost secrets.

Can't you all who are subpoenaed just make statements that Whole Foods is not monopolizing the market (or wasn't until this subpoena showed up.)

If you band together you will gain strength.

I will not set foot in Whole Foods until they stop acting like this.

I love you, New Seasons.


Anonymous said...

I will not set foot in a single Federal Trade Commission Grocery until this fiasco has passed! C'mon, Whole Foods! Stop being such a bully!

Anonymous said...

Check out who Whole Foods has heading up the FTC case for them. It's the lawyer who flacked for Clinton with Monica and Hillary's campaign manager. The CNN/FOX on every night guy.

just scroll down a little for his pic.

Where does Seattle's PCC fir into all this. Used to live there, now in Portland. PCC is premium but also a co-op.

Don't get how with 9 stores New Seasons can be put in same category as Whole Foods. Somebody help me out here.

pdxer said...

I won't spend another dollar in Whole Foods.

They don't need to get any bigger.

And I am letting me friends know about their bullying.

Anonymous said...

I wouldn't be at all surprised if people start picketing Whole Foods stores when word gets around. If that happens, their sales are going to plummet. They don't call Portland "Little Beirut" for nothing.

Anonymous said...

I too will boycott Whole Paycheck. New Seasons treats it employees fairly and as a customer I can feel it in great service, intelligence, and grace at every level.

While I can't really afford Whole Foods or New Seasons I do save for special items and holidays and now I feel even better about the splurge.

There is a Whole Foods going in on Sandy and 43rd or so in Hollywood. IT's huge. Who will shop there?? I will drive an extra mile to Concordia.


radishly said...

This makes me so mad! And worried. :(

Dorothy said...

I plan on boycotting Whole Foods and will picket them too. This whole thing is just outrageous. I wish that they would just leave well enough alone and stop the crazy intimidation tactics. I am pretty sure that all the Whole Foods employees are witches. Not the good kind, either. The bad kind.

I will drive two extra miles to the Sellwood New Seasons until Whole Foods relents on this crazy vendetta. Also, they eat children.

Brian Rohter said...

Brian Rohter jumping in here. I just wanted to remind everybody that no matter how unhappy we might be about what's going on, we shouldn't take it out on the folks who are working in the Whole Foods stores. They are our Portland neighbors and they're not responsible for Whole Foods corporate decisions that are being made thousands of miles away.

Elaine.B said...

I moved to Orenco Station two years ago from LA and had been shopping at Trader Joe's and Whole Foods for years. Of course, at the time I moved, TJs and WF had not opened in the area. Since I live within walking distance of New Seasons, it quickly became my home away from home and so even when TJs and WF opened I continued to do most of my shopping at NS. Everyone is so nice and having such a friendly place to shop has made my move to Oregon much more pleasant, since I have been VERY homesick for LA, as I lived there my whole life~~56 years at the time. I am OUTRAGED that WF is taking this action and WILL NOT SHOP THERE ANYMORE!!! Best of luck with this situation!

tommy said...

Monkeywrench 'em, Brian. Send the bastards doctored numbers!

Anonymous said...

It would seem to me that the notion that New Seasons' private data would benefit Whole Foods' FTC case is speculative, and in the case of People's Co-op, the mere existence of a "strategic plan" would be highly speculative.

Anonymous said...

For the T-shirts:

"Whole Feuds? Who needs em!"

"Nude Squeezin's FTW!"

"FTC? Not for me!"

Anonymous said...

New Seasons Markets should join the other 40+ natural food enclaves and just ignore the court order. Stick it to the man, Brian! Fight the power! Mock the Federal Trade Commission! Enjoy organic produce! Make smoothies, not bombs!

Anonymous said...

Holy WTF!??!

Hey New Seasons, you've worked really hard for your success over the last 8+ years, don't give those corporate A-Wholes any of your info!

I live closer to the looming Sandy store than Concordia but I will never shop money stays with my locally owned shop! Stick to your guns!!!

Julian said...

Guys, just appeal until January or February. By that time we'll have a new FTC that is less pro-monopoly than the last administration. What the FTC is now demanding is totally un-American. Also, if you haven't already, reach out to SBN here in town. Your kind of fight is why they exist. Good luck!

John Quincy Adams said...

I agree with Julian, this is un-American! There's no way that they should be doing this in a free country where we rely on a constitution and democracy! This is why you should ignore the court ordered production of documents! To defy the court and mete out what YOU believe, that is the TRUE form of justice! The little guy standing up for himself by breaking the law, that is DEMOCRACY! Fighting it out in court? Bah! The only thing that's going to get you is a decision you DO NOT agree with, and that's just un-American!

Fight the power! Fight the Federal Trade Commission! Fight Whole Foods! Ignore the lawfully issued subpoena! Go to jail! That will teach them!

Anonymous said...

Looks like there were some major developments in a federal court hearing today about the FTC and Whole Foods Case. Among other things, Whole Foods wants the court to give it permission to examine the e-mails of one of the FTC commission members. Wonder if John Mackey is trying to get back at them for doing the subpoena of his e-mails last year. Getting interesting for sure.

All at

Brian, any legal steps left?

Michael B - Portland

Anonymous said...

I have long been a Whole Foods shopper. I live near the Pearl location and spend thousands of dollars there every month. After I read these articles, I will no longer be shopping at Whole Foods.

I also won't shop at New Seasons. No, it's Safeway for me from now on.

theoldperfesser said...

As a lawyer who has done a lot of antitrust and merger work, it's not clear to me what probative value all these files have. On the other hand, the potential to have these files misused is obvious.

If the argument Whole Foods wants to make is that New Seasons can step in and take advantage of any lack of competition, there are lots of ways to get at that without digging into their private strategy files. As is obvious, spilling their strategies and plans all over an agency record (and once they are used in evidence, they are public to the world, end of story, even if they can be somewhat protected to that stage) can be very harmful to New Season's ability to compete. In fact, just paying all the legal fees is likely to prove harmful to New Seasons' ability to compete, as that is money that could have been used elsewhere.

Courts and agencies can be abused. They don't always do right or deliver justice. When they are doing bad things, it is perfectly appropriate to draw attention to the situation. Civil disobedience is a strong step to take in that cause, but, hey, it worked for Dr. King.

Anonymous said...

Nice job of manipulating your brainless base, Brian.
You're just as sneaky as Mackey.

And talk about hypocritical! I live in Hillsboro, and New Seasons (a "local" store) is based in Portland. Last time I checked, Portland is NOT in Hillsboro. I'm sick of New Seasons pushing it's agenda on the suburbs of Portland.

Stay in the "big city" and keep your junk out of our towns and villages. It's obvious that you're trying to put the farmers markets out of business, and we're all sick of it. You and Wal Mart are not welcome here.

girlgourmet said...

Interesting how all the blatantly anti-New Seasons and anti-Portland posts are "anonymous". How's the weather treating you in Texas?

Natural~Specialty Foods Memo said...

We appreciate the various links to our coverage and writing about the FTC/Whole Foods case -- and the New Seasons Market element -- and the comments we've received from readers.

Thought we would offer a link to a piece we wrote and published in Natural~Specialty Foods Memo earlier this evening titled:

Christmas Eve Memo 2008: 'Twas the Night Before Christmas' - FTC v. Whole Foods Market, Inc. Version

It's at the top of the Blog at:

It will remain there.

Happy holidays! Hang in there all in these tough times.

Anonymous said...

Interesting how all the blatantly anti-New Seasons and anti-Portland posts are "anonymous". How's the weather treating you in Texas?

As though "girlgourmet" is any less anonymous. Who's to say you're not a girl, nor a gourmet?

We know that's just Brian using a psyeudonym. And why wouldn't he be spinning propaganda his own way on his own webiste?

I hope that the sampling of posters here are not indicative of the average New Seasons shopper. I would have thought they were more intelligent.

Chuck said...

We own a small, local business and can't afford to shop at New Seasons very often. This will be changing as our business and income grow. (We prefer to return the love we've felt from Portlanders, who support local above all else.) That being said, I am outraged by Whole Foods' actions; the few times we shop there are now being reduced to no times we shop there. Yes, I know they employ locals, but in this situation, the most effective message is sent via our economic choices. So I'm sending my business to New Seasons.

Anonymous said...

Just read here: that tomorrow is the deadline for New Seasons to submit all its info to Whole Foods.

Brian, are you going to so it or hold back? Stay the course!

Michael B-Portland

Dave F. said...

Anonymous Hillsboro anti-New Seasons person:

If the definition of "local" was so extreme that Hillsboro was not local, it would be impossible to buy local produce. There would be no distinction between North Plains and New Mexico.

Your charge that New Seasons is trying to put local farmers and farmers markets out of business is the most uninformed comment on this blog. Why don't you ask the local farmers themselves who are selling tons of produce to New Seasons, are working together with New Seasons to plan their crops so they know they'll have a market, and are able to expand their production because of it?

Comparing New Seasons to Walmart shows complete ignorance of the industry on your part.

Many people in Hillsboro like New Seasons, including members of my family, and you speak for yourself and not for them.

KJ54 said...

This was the straw that broke the camel's back for me. NO MORE Whole Foods for me, not even for a quick run for half gallon of milk. On Saturday I went out of my way to go to New Season's Interstate store, even though I had just driven past Whole Foods. Stay strong, we're behind you New Seasons.

P.O'ed in P-town said...

I am totally outraged at the way that the Federal Trade Commission has bowed down to the Corporate shills of Whole Foods! What happened to the America I grew up in? Since when is the party with the most money and the shrewdest legal team allowed to impose its will on the little guy? The little guy, who, at the end of the day just wants to sell wholesome produce to the people? When did the FTC first begin to assume this Solomon-like power over the citizens of America? Why does Whole Foods (corporate money-whores) get to use their lackeys (the FTC flying monkeys) to do their bidding by victimizing a completely innocent party? Where is the justice in letting the Goliath beat up the David, especially when the club Goliath uses is an arm of the government? Since when did it become a crime for New Seasons to sell fresh, local produce and offer tantalizing farm-plate specials in the Deli at the Mountain Park location?

This Federal Trade Commission ruling is an act of war. Whole Foods is a corporate monster no different from Wal-Mart. Fight them, Brian! Fight them to the death! Godspeed, green-grocer!

Jim said...

While I certainly don't advocate non-compliance with a legal order, the ethics behind this whole thing just stink.

Even if Whole Foods in on the up and up (which is certainly suspect), they should understand that these demands are unethical and should arrest their unreasonable demands.

Rest assured that I won't be shopping at Whole Foods on the "they are not good neighbors" principle alone.

Heather said...

Heh, it's not too late to fake a new strategic plan, is it? :\

I'll keep blogging and Twittering and spreading the word.

Anonymous said...

It is completely ignorant to state that New Seasons is anything like Walmart. This is a company that actually takes care of their employees, the environment, and their local community. Their employee benefits and wages are unheard of in the industry. They are on the cutting edge of sustainable practices to try to improve our planet with recycling, compost and with the products they buy. They donate a large portion of their profits to local charities, throw many local events and support local farmers as much as possible. This is not a greedy corporate company and it’s aggravating to hear people say the opposite. We need more companies like New Seasons. Please do your research before you speak.

Anonymous said...

good luck!! we're rooting for you!! Get the word out if there's anything we can do to help

Sonja said...

Brian, fire your lawyer. The arguments presented to the judge I saw in the Oregonian were too weak. New Seasons shoppers themselves could have come up with better arguments than that.

Second, the FTC is apparently pursuing Whole Foods to help local markets you from the alleged monopoly. Go with it. Tell them that they did in fact hurt your business by acquiring Wild Oats. If Whole Foods loses this case, you could come out on top.

I know that its probably not your style to hurt the competition, but they are really asking for it with all of this. You just need to stop being a victim and play their game. If you act offensively instead of defensively, you might come out wining.

Anonymous said...

This makes me so sad.

I can say with certainty that New Seasons is an unusually enlightened and honorable company. My partner works there, and since he started working there i have seen him grow in self-esteem, self-confidence and skills. He is very progressive and discerning, quick to spot hypocrisy. He is sensitive and generous and thrives in places where he can work inspired by his principles and heart, without obstruction by weird institutional practices.

New Seasons is a special place which has its source in constructive visions.

Whole Foods could never replicate that.

Nevertheless, i hope that ways will be found to not turn over material which NS has every right to hold confidential.

I have been through enough to know that good proves strongest in the end in a way that is more perfect than anything we can imagine.

I hold out that vision this time.

Thank you, Brian Rohter, for encouraging people not to be hostile to local Whole Foods staff.

Happiness, Health and Abundance for All.


Anonymous said...

We built this city on support for local farmers , and in
support of local organic foods. We are thankful to New Seasons for continuing this movement.
A Texas based company such as Whole Foods will never be successful in its endeavor to dictate to Oregonian's food choices .
Thank you New Seasons !

Anonymous said...

I have stopped shopping at Whole Foods a while ago, and I've let all my friends know about the stunt Whole Food is pulling. As far as I know, they're all boycotting Whole Foods as well. :)

Don't give up, New Seasons. :)

Man Servant said...

I too have told all my friends and co-workers about this travesty that Whole Foods is engaged in. We have all stopped shopping there. We are all extremely disappointed in Whole Foods trying to choke the life out of the best local food market with their legal wrangling. It makes me physically ill.

David said...

Wow. What a win-win for WF. If they fail to comply, they're faced with huge legal expenses and fines. But if they comply, NS presents "outside counsel only" with great research and marketing data.

In the mean time, WF gets to punish NS for impeding WF acquisition of Wild Oats.

Anonymous said...

It makes me so happy to see New Seasons jammed up in the disparity between its dual ambitions. Every half-oiled press release they write about their local benevolence is offset by another in-store capitulation to their corporate ambitions.

The quality and creativity of the New Seasons brand expired long ago, and their faulty ideals translate directly into damage to any local producers who risk becoming involved with the chain. Rohter can play his fiddle and pose like a pariah, but really interested members of the food community could care less what happens to his neon-green box stores crammed with overweight social workers and clammy schoolteachers.

Portland, dig into your own gardens, local coops, farmer's markets, and community supported agriculture! Chrissakes! It's Oregon! Good food can't be any easier to get than it is here! Go outside! Plant beans!

Derek K said...

Gotta admit that I've no idea about the local politics of New Seasons. I've shopped at both NS and WF, and can say that NS invariably has friendlier and much more well-informed staff. They have FAR better produce, carry great products, but know that some of us do want to eat actual Cheerios or Coca-Cola, so they carry those as well. NS seems to be slightly more expensive for most grocery items (except produce).

Sadly I live in the New Seasons vacuum SW of the city, and have been surrendering to the Bridgeport Whole Foods to save the drive.

It may be worth the extra drive after reading this.

If New Seasons wants to "take over" the Portland metro area, all the more power to them. Please take over some of the Wilsonville area!

Conan said...

Whole Foods is the devil. I hate them with the fury of nine thousand suns.