The attorneys general of Washington, D.C., California and Illinois on Wednesday jointly filed a federal lawsuit in an effort to temporarily prevent Albertsons from distributing a $4 billion special dividend to shareholders that is connected with the grocer’s planned acquisition by Kroger.
The suit claims that payment of the dividend, set to be distributed Monday, would sap Albertsons of a significant chunk of its financial resources and reduce competition in the food retailing industry, threatening consumers.
“Albertsons will be unable to respond effectively to shifts in the market through promotions and advertising more generally, have less available cash to pay employee wages and benefits to retain staffing, and be unable to make necessary investments into their stores, or heavily disincentivized from doing so,” if the retailer is not stopped from making the payment, the complaint alleges.
The suit, filed in the U.S. District Court for the District of Columbia, added that the payout might reflect “a calculated effort to leave Albertsons just battered enough for Defendants to argue later (to regulators or a court) that it is a ‘flailing’ or ‘failing’ firm that Kroger should be allowed to acquire lest it go out of business anyway.”
But even if that turns out not to be the case, the court should stop distribution of the dividend because it is part of a merger agreement between Albertsons and Kroger that would hurt grocery shoppers by diminishing their choices, the attorneys general said in their complaint.
“As a result of this reduced competition, District of Columbia, California, and Illinois residents likely will pay more for their groceries, and enjoy fewer promotions, worse service, and fewer quality-improving investments than they would but for Defendants’ agreement to pay the Special Dividend,” the suit alleges.
On Tuesday, Washington Attorney General Bob Ferguson filed a separate lawsuit in King County Superior Court that also seeks to block Albertsons from distributing the dividend before antitrust regulators have had a chance to evaluate the planned merger’s potential effect on the grocery market. When they announced their intention to combine on Oct. 14, Kroger and Albertsons said they did not expect the transaction to close until early 2024.
“Free enterprise is built on companies competing, and that competition benefits consumers. Corporations proposing a merger cannot sabotage their ability to compete while that merger is under review,” Ferguson said in a statement.
The lawsuits follow a letter urging Albertsons not to proceed with the dividend that the four attorneys general, along with their counterparts in Arizona and Idaho, sent Albertsons and Kroger last week. Albertsons has defended its plans to distribute the funds to shareholders, saying it “will continue to be well capitalized” after making the payment.
