Three judges in three different states are now deliberating the fate of Kroger’s proposed $25 billion takeover of rival Albertsons.
Last week, two antitrust cases each seeking to kill the merger concluded in Washington and Colorado. Those cases follow a critical hearing in a federal court in Oregon over a court order requested by the Federal Trade Commission to halt the merger as it pursues its own antitrust case in Washington, D.C.
While there isn't a timeline for all three decisions, the federal judge has a five-week head start on her deliberations.
Antitrust law experts have said Kroger and Albertsons need to win all three cases in order keep their merger prospects alive. Any decision in the cases would be subject to appeal by either the grocers or regulators.
How big is this merger, again?
First announced in October 2022, Cincinnati-based Kroger wants to buy all outstanding shares of Boise, Idaho-based Albertsons, adding most of its employees and stores to its supermarket operation. If the deal is completed, Kroger would:
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Operate more than 4,400 supermarkets, up from 2,700 right now.
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Generate about $208 billion in annual sales, compared to $150 billion.
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Employ about 640,000 workers, up from about 414,000 currently. That would make it one of the 10 largest private employers in the world.
What are regulators' objections to the merger?
Regulators at both federal and state levels have expressed deep concerns the deal would lessen competition and give Kroger too much power to raise prices for consumers. They are also concerned about Kroger’s related deal to sell off 579 stores to C&S Wholesale Grocers, which was meant to mollify anticompetitive concerns. Regulators have noted the Keene, New Hampshire-based supplier has limited and uneven experience as a retailer, which could jeopardize stores and jobs.
What do grocers say in their defense?
Kroger and Albertsons have promised the deal will lower prices for consumers, won’t lead to any store closures and won’t create mass layoffs. They claim they need to merge to compete effectively against a wave of growing nontraditional grocers, such as Walmart, Costco and Amazon.
When will there be a decision?
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King County Superior Court Judge Marshall Ferguson scheduled Nov. 15 for his decision.
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Denver District Court Judge Andrew J. Luxen offered no timeline for his ruling.
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In September, US District Judge Adrienne Nelson similarly said she had “no timeline,” but promised to “work as quickly as possible” to render her decision.
Are there other legal actions?
The FTC filed two legal actions when it decided to fight the merger. The proceeding in Oregon was for a court order to prevent the merger from going forward while it pursues its antitrust lawsuit through an in-house administrative court in Washington, D.C. That administrative trial is on hold, pending a decision from Judge Nelson.
Meanwhile, Kroger sued to stop the FTC’s administrative trial, claiming it violates the constitution. The challenge is based on two theories: the first argues the administrative proceeding violates the separation of powers, while the second argues the non-jury trial violates Kroger’s “private rights.”
Legal experts have said the lawsuit appears to be an attempt by Kroger to force or prompt the FTC to pursue the rest of its antitrust case in federal court instead of through its in-house administrative system.
For the latest on Kroger, P&G, Fifth Third Bank and Cincinnati business, follow @alexcoolidge on X (formerly Twitter).
This story was updated to add a video.
This article originally appeared on Cincinnati Enquirer: When will a judge rule in the Kroger Albertsons merger?