Kroger sues FTC in attempt to block in-house review of proposed Albertsons merger

Workers and community members form a picket line outside a Denver King Soopers, after United Food and Commercial Workers Local 7 began a strike over stalled labor negotiations on Jan. 12, 2021. (Chase Woodruff/Colorado Newsline)

Grocery giant Kroger filed a federal lawsuit Monday claiming the Federal Trade Commission violated the company’s constitutional rights by challenging its proposed merger with Albertsons outside of federal court proceedings.

Kroger, which operates King Soopers and City Market stores in Colorado, first announced its plans to acquire Albertsons, which operates the Safeway brand, in 2022. The $24.6 billion deal, one of the largest retail mergers ever proposed, has been opposed by labor unions and consumer advocates who fear that the consolidation could lead to higher prices and decreased wages and bargaining power for workers.

Kroger’s lawsuit, filed in the U.S. District Court for the Southern District of Ohio, looks to stop FTC administrative proceedings challenging the merger so that it would only be reviewed in federal court. When the FTC challenges a merger or acquisition , it typically seeks a preliminary injunction in federal court, as it is with Kroger Albertsons, and tries the case through its in-house court before an administrative law judge.

“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,” Rodney McMullen, Kroger Chairman and CEO, said in a statement.

The FTC filed a lawsuit to block the merger in February, as did Colorado Attorney General Phil Weiser and Washington Attorney General Bob Ferguson. A Denver district court judge granted Weiser’s request for a preliminary injunction in July, barring the companies from completing the merger before a ruling is announced.

The Colorado trial is expected to start in the fall, and the federal court trial is set to start on Aug. 26 in the U.S. District Court of Oregon.

Kroger, based in Ohio, operates more than 2,700 stores and Albertsons, based in Idaho, operates more than 2,200 stores across the country.

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