While closing arguments have wrapped up in the three legal challenges against the Kroger-Albertsons merger, the grocers and the Federal Trade Commission are scheduled to face off in an Ohio courtroom on Monday.
Kroger sued the FTC in mid-August in the U.S. District Court for the Southern District of Ohio, claiming that the federal agency’s in-house tribunal challenging its proposed merger with Albertsons is unlawful because the FTC already has a separate federal lawsuit seeking to block the mega-deal.
“[The] FTC has sought to split its challenge to the merger into two separate tribunals in an inappropriate attempt to receive multiple opportunities to litigate the same issues,” Kroger said in a statement when it announced its lawsuit.
The judge in Monday’s hearing in Cincinnati will consider Kroger’s request for a preliminary injunction against the FTC.
In a recent court document, the FTC said that its administrative hearing about the proposed mega-deal would not begin until Dec. 18 at the earliest. The FTC claims that the outcome of the federal lawsuit against the merger could “moot [Kroger’s] structural challenges to the Commission’s authority to conduct administrative proceedings.”
Judge Douglas R. Cole denied the FTC’s request for the court to hold off on the hearing until at least the first week of December “until it becomes clear that the administrative hearing will indeed go forward.”
While the hearing will take place Monday, the Ohio court will not decide on the pending motions until the District Court for the District of Oregon rules on the FTC’s attempt to block the merger, Cole said. Closing arguments took place in Oregon on Sept. 17, and federal judge Adrienne Nelson has not provided a timeline for her decision.
Kroger has vowed to terminate the merger if Judge Nelson issues a preliminary injunction. Matthew Wolf, an attorney for the grocer, said during opening statements for the federal trial: “This proceeding will decide the fate of the merger,” WCOP reported.
Cole granted the FTC’s request for more time to respond to the complaint. The federal agency will have 30 days to respond to Kroger’s complaint after the Ohio court rules on the grocer’s preliminary injunction request.
