“Unconstitutional”: Kroger sues Federal Trade Commission ahead of merger court hearing

Kroger has filed a lawsuit against the U.S. Federal Trade Commission, seeking to block the regulator from reviewing the supermarket chain’s controversial proposed $25 billion merger with Albertsons. According to a Monday release from the company, Kroger filed a motion for preliminary injunction in the U.S. District Court, Southern District of Ohio, against the FTC’s administrative proceeding challenging the deal.

The motion alleges the FTC is violating Constitutional practices “because the Administrative Law Judge presiding over the administrative proceeding is not removable by the President of the United States,” and because the regulator is “seeking to adjudicate Kroger's private rights to contract with another private party administratively through the Executive Branch rather than in the independent Judicial Branch.”

Evidentiary hearings for the federal court proceeding are set to begin on Aug. 26 in the District of Oregon.

"The merger between Kroger and Albertsons is squarely focused on ensuring we bring customers lower prices starting day one while securing the future of good-paying union jobs," said Rodney McMullen, Kroger Chairman and CEO, in a written statement. "We stand prepared to defend this merger in the upcoming trial in federal court — the appropriate venue for this matter to be heard — and we are asking the Court to halt what amounts to an unlawful proceeding before the FTC's own in-house tribunal."