Ohio Attorney General Dave Yost has called on a federal court to dismiss an antitrust lawsuit filed by the Federal Trade Commission (FTC) aimed at blocking the merger between Kroger and Albertsons.
“The FTC’s tunnel vision in this case risks chilling the very competition that it seeks to protect,” Yost stated. “A full view of the competitive landscape shows no reason to delay this deal further.”
In an amicus brief submitted to a U.S. District Court in Oregon, Yost, along with three other state attorneys general, argued for allowing Kroger’s acquisition of Albertsons to proceed. They claim that the FTC's opposition is based on a flawed understanding of the market dynamics involving these two retailers.
The FTC, supported by eight states and the District of Columbia, filed a lawsuit in February to prevent the merger, arguing it would reduce competition and lead to higher prices for consumers. However, Yost and his co-authors dispute these claims, citing insufficient evidence supporting the FTC's conclusions. They argue that the case is driven by an overarching FTC policy objective to block all mergers among large grocery chains.
According to their brief, merging Cincinnati-based Kroger and Boise-headquartered Albertsons would result in a more robust competitor within the retail grocery sector. To maintain competition levels, Kroger plans to divest stores in regions where both chains currently operate. The two companies announced their merger plans in October 2022 and collectively manage over 5,000 stores nationwide, with overlapping operations in only about 10% of those locations.
The attorneys general criticize the FTC for not considering the broader marketplace context. Specifically, they point out that excluding non-traditional grocery retailers like Costco, Aldi, Whole Foods, and online sellers from its definition of "supermarkets" skews the FTC's analysis.
By adhering to this narrow definition, they argue that the FTC wrongly assumes consumers would lack alternatives if supermarket prices were hypothetically raised due to reduced competition. The brief also notes that even the FTC rejected “supermarkets” as a market definition in a case from 1983.
The attorneys general have requested that the court deny the FTC’s motion for a preliminary injunction against the merger. Joining Yost in filing this amicus brief are Alabama Attorney General Steve Marshall; Georgia Attorney General Chris Carr; and Iowa Attorney General Brenna Bird.
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