Kroger has filed a motion for a preliminary injunction against the Federal Trade Commission (FTC) in the U.S. District Court, Southern District of Ohio, seeking to stop the agency’s challenge to its $24.6 billion proposed merger with Albertsons. Kroger claims that the FTC’s actions are unconstitutional, in part because the Administrative Law Judge presiding over the proceeding is not removable by the U.S. President, i.e. is answerable only to the FTC rather than the federal judicial or executive branches.
The FTC had filed its motion to block the merger in February 2024, with its commissioners voting 3-0 and joining nine state Attorneys General in calling the deal anticompetitive and harmful to both workers and consumers.
Kroger’s suit also accuses the FTC of seeking to split its challenge into two separate tribunals in an “inappropriate attempt to receive multiple opportunities to litigate the same issues,” according to a company statement, adding: “Despite forcing Kroger to participate in this unconstitutional administrative proceeding, the FTC has also filed a motion in the federal court proceedings seeking to block the merger for the duration of its administrative proceeding — which will likely take several years to resolve.” Evidentiary hearings for this federal court proceeding are scheduled to begin on Aug. 26, 2024, 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, Chairman and CEO of Kroger in a 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.”
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