Ohio AG calls on court to toss FTC lawsuit on Kroger, Albertsons merger

Ohio Attorney General Dave Yost has filed an amicus brief with a U.S. District Court in Oregon urging the court to reject a lawsuit brought by the Federal Trade Commission and nine attorneys general to block Cincinnati, Ohio-based Kroger’s attempted $24.6 billion acquisition of Boise, Idaho-based Albertsons.

The brief, filed on Wednesday, argues that the opposition to the deal is “based on a flawed understanding of the marketplace in which the two retailers operate,” according to a press release from the Ohio Attorney General’s Office. 
 
“The FTC’s tunnel vision in this case risks chilling the very competition that it seeks to protect,” Yost said in the press release. “A full view of the competitive landscape shows no reason to delay this deal further.”

The request is joined by attorneys general in three other states — Iowa, Georgia, and Alabama. The original lawsuit filed by the FTC in February includes attorneys general in Arizona, California, the District of Columbia, Illinois, Maryland, Nevada, New Mexico, Oregon, and Wyoming.  

Two additional lawsuits were filed independently to block the deal by attorneys general in Colorado and Washington state. 

“To preserve competition, Kroger would divest stores in areas where the chains currently have overlapping operations. The retailers, which announced plans to merge in October 2022, have more than 5,000 stores throughout the country, with only a 10th of them overlapping,” Yost’s office said in the press release. 

Related:Kroger, Albertsons have spent $864M, so far, on acquisition effort

Yost argues that the FTC and AGs’ antitrust claims are faulty due to the fact that their “narrow definition of ‘supermarkets’ excludes non-traditional grocery retailers, such as Costco, Aldi, Whole Foods and online sellers.”

“The FTC incorrectly assumes that consumers would have nowhere else to turn if a hypothetical supermarket monopoly raised its prices. The brief adds that the FTC itself, in a case from 1983, rejected ‘supermarkets’ as a market definition,” the Ohio AG’s office noted.