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In a gutsy move, Whole Foods Market (Nasdaq: WFMI ) is suing the Federal Trade Commission, firing back at the FTC's protracted efforts to undo its already integrated acquisition of smaller rival Wild Oats.
A regulator needlessly dragging out the merger process, forcing a company to jump through redundant hoops, and ultimately debilitating the combined company at the end of the ordeal? Am I the only one with a deja vu moment, or is this a lot like the excruciatingly long FCC approval process for Sirius XM Radio (Nasdaq: SIRI ) ?
The cases are admittedly far from identical. The FTC is relentlessly trying to decouple the two grocers after their merger, while the FCC dragged its feet from February 2007 until summer 2008 before finally ushering XM and Sirius into the honeymoon suite -- just in time to face massive debt obligations. Still, both mergers can partly blame regulator interference for their subsequent fall from Mr. Market's graces.
Whole Foods and Wild Oats should have been a match made in heaven, blessed by greater economies of scale. And the sheer improbability that regulators would ever approve a merger of XM and Sirius should have sent the stock soaring when the deal actually came through.
Alas, Wall Street and I haven't seen eye to eye in these scenarios. Shares of Whole Foods have shed 72% of their value this year. Sirius XM has endured an even harsher 95% drop. The market indices may have been slammed this year, but Whole Foods' and Sirius's returns are downright pulverized.
I'm not suggesting that either regulatory body should have given either proposed deal an immediate blessing. However, it's hard to imagine Sirius shares being swapped for less than three nickels if Kevin Martin's agency had simply killed the deal a few months after it was announced. A solo Sirius would have been able to get itself closer to cash flow-positive without help from XM.
In my modest opinion, both cases' monopoly allegations are ultimately baseless. Conventional grocers continue to expand their space for organic products. Even mainstream companies like General Mills (NYSE: GIS ) have made the switch to whole grain in all of their breakfast cereals. Terrestrial radio is clearly a rival to satellite; why else would the National Association of Broadcasters have spent so much money lobbying against the deal?
I understand that regulators have to be cautious. However, they had no problem letting GameStop (NYSE: GME ) devour Electronics Boutique. Even though both companies were the category-killers in dedicated video game retail, neither was a match for larger chains like Wal-Mart (NYSE: WMT ) . Similarly, organic grocers and satellite radio are simply niches in the larger supermarket and broadcasting specialties.
Even if I'm wrong, at what point does hounding a company get flagged for a "delay of game" penalty? Whole Foods and Sirius got the deals they wanted, but their lengthy and traumatic paths toward mergerhood have helped reduce them to horrendous investments.
I don't know whether Whole Foods has a case, or whether Sirius XM even has a basis for getting litigious at all. However, these two companies were clearly wronged by a system that dragged its feet to their detriment. Why should shareholders be the only ones to pay?
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