PORTLAND, Ore. – After more than a week of the Federal Trade Commission’s antitrust case against Kroger’s $25 billion bid to take over rival Albertsons, you might wonder what it’s like in the courtroom.
The stakes are high: Last week, a Kroger attorney said during the ongoing hearing at the U.S. District Court, "this merger will not occur" if the company doesn’t block regulators’ bid for a court order to halt their merger. The proceeding, scheduled to last as long as through Sept. 13, is a hearing for a preliminary injunction that would stop the merger as the FTC pursues the rest of its case against the merger in Washington, D.C. But antitrust experts say such an order would mean months of delay, which would be unacceptable to the companies.
So how is the courtroom battle playing out? Here are a few observations:
There are so many lawyers
In a courtroom that could easily seat 150 people, the hearing has required an overflow room two flights below the 14th-floor venue.
Court officials say there are some 80 attorneys involved in the case, which has the FTC, eight states, and the District of Columbia as plaintiffs; Kroger and Albertsons as defendants; and Keene, NH-based C&S Wholesale Grocers and others testifying.
Questions, answers and questions not asked
Most court testimony in a trial is not like the courtroom dialogue dramatized in your favorite cop show or legal drama on TV.
Attorneys on both sides pepper witnesses with dozens of “yes or no” questions. But other questions are not asked that might provide additional context.
For example, both the government and the grocers questioned a Dollar Tree executive about how much food his company sells to customers. FTC attorneys asked the executive about his company’s narrow food selection. Attorneys for the grocers, who have argued the food business is swamped by nontraditional competitors like dollar stores, barely questioned the executive, apparently satisfied the executive had already talked about his company selling food.
Evidence, exhibits and redactions
A lot of evidence and testimony in the case touches on secret, proprietary information by Kroger, Albertsons, C&S Wholesale Grocers and other companies, such as financials, strategies and internal communications. What little information is filed in the case docket is often heavily redacted or sealed.
During the testimony of several witnesses, some exhibits were made visible only to the witness, the judge and the attorneys. Those witnesses were also instructed to discuss the confidential information generally without disclosing specifics on the screens before them.