Consumer Antitrust Lawsuit Against Kroger, Albertsons Cos. Dismissed

District judge says plaintiffs failed to explain how merger would affect them personally

8/3/2023

A consumer complaint filed against the proposed merger of Albertsons and Kroger has been dismissed by a San Francisco district judge.

A U.S. district judge in San Francisco has dismissed a consumer lawsuit filed against the pending merger between The Kroger Co. and Albertsons Cos.

Judge Vince Chhabria stated in his ruling that the 25 plaintiffs, who hail from Texas, California, Florida and other states, “have made no effort to explain how the merger would affect any one of them personally” and also “lack standing to challenge the dividend payment.”

“Even if the plaintiffs had adequately alleged standing, the lawsuit would be dismissed or stayed on the ground that it is not ripe,” Chhabria further said in the ruling. “The contours of the merger have not yet become clear enough to adequately assess the effects it will have on competition — whether that assessment needs to be done nationally or on a market-by-market basis.”

Plaintiffs now have until Oct. 2 to file an amended complaint. “If the plaintiffs believe an extension is warranted because more time is needed for the proposed merger to take shape, they may request one,” the judge said.

The deal between the two companies could close as soon as January 2024, though the Federal Trade Commission (FTC) is still reviewing the potential merger. The Center for Science in the Public Interest (CSPI) has called on the FTC to block the merger, outlining its concerns in a letter saying it would result in fewer grocery stores and higher food prices — negatively affecting food and nutrition security for consumers around the country.

In a July 22 joint interview with the Denver Post, Albertsons CEO Vivek Sankaran and Kroger CEO Rodney McMullen were asked about the federal government’s new and tighter guidelines for mergers and acquisitions, proposed earlier this summer and set to go into effect before the final Albertsons-Kroger review. The leaders said they were ready to proceed with legal action if the merger is rejected.

Serving 11 million customers daily through a digital shopping experience and retail food stores under a variety of banner names, Cincinnati-based Kroger is No. 4 on The PG 100, Progressive Grocer’s 2023 list of the top food and consumables retailers in North America. Boise, Idaho-based Albertsons operates more than 2,200 retail stores in 34 states. The company is No. 9 on The PG 100. PG also named both companies to its Retailers of the Century list.