Albertsons sues Kroger for failing to win approval of their proposed supermarket merger

[December 12, 2024]  By DEE-ANN DURBIN

Kroger and Albertsons' plan for the largest U.S. supermarket merger in history crumbled Wednesday, with Albertsons pulling out of the $24.6 billion deal and the two companies accusing each other of not doing enough to push their proposed alliance through.

Albertsons said it had filed a lawsuit against Kroger, seeking a $600 million termination fee as well as billions of dollars in legal fees and lost shareholder value. Kroger said the claims were “baseless” and that Albertsons was not entitled to the fee.

“After reviewing options, the company determined it is no longer in its best interests to pursue the merger,” Kroger said in a statement Wednesday.

The bitter breakup came the day after two judges halted the proposed merger in separate court cases. U.S. District Court Judge Adrienne Nelson in Oregon issued a preliminary injunction Tuesday blocking the merger until an in-house judge at the Federal Trade Commission could consider the matter.

An hour later, Superior Court Judge Marshall Ferguson in Seattle issued a permanent injunction barring the merger. Ferguson ruled that combining Albertsons and Kroger would lessen competition and violate consumer-protection laws.

The companies could have appealed the rulings or proceeded to the in-house FTC hearings. Albertsons' decision to pull out of deal instead surprised some industry experts.

“I’m in a state of professional and commercial shock that they would take this scorched earth approach,” said Burt Flickinger, a longtime analyst and owner of retail consulting firm Strategic Resource Group. “The logical thing would have been for Albertsons to let the decision sink in for a day and then meet and see what could be done. But the lawsuit seems to make that a moot issue.”

Albertsons is unlikely to find another merger partner because it has significant debt and underperforming stores in most of its markets., Flickinger said. Consumers will feel the most immediate impact of the deal's demise, he said, since Albertsons charges 12% to 14% more than Kroger and other grocery rivals.

“They had so much debt they had to pay it off it's reflected in their pricing and promotional structure,” Flickinger said.

Albertsons CEO Vivek Sankaran testified during the federal hearing in September that his company might consider “structural options” like laying off employees, closing stores and exiting certain markets if the merger with Kroger didn’t go through.

“I would have to consider that,” he said. “It’s a dramatically different picture with the merger than without it.”

But in a statement Wednesday, Sankaran said Albertsons would “start this next chapter in strong financial condition with a track record of positive business performance." In the company's most recent quarter, Albertsons' revenue rose 1% to $18.5 billion and it reported $7.9 billion in debt.

Kroger said it would also move forward in a strong financial position, with revenue down slightly to $33.6 billion in its most recent quarter. The company announced a $7.5 billion share buyback program Wednesday after a two-year pause.

The exterior of Kroger's fulfillment center is shown on July 27, 2022 in Dallas, Tex. (Rebecca Slezak/The Dallas Morning News via AP, File)

Kroger and Albertsons first proposed the merger in 2022. They argued that combining would help them better compete with big retailers like Walmart, Costco and Amazon, which are gaining an increasing share of U.S. grocery sales. Together, Kroger and Albertsons would control around 13% of the U.S. grocery market. Walmart controls around 22%.

Under the merger agreement, Kroger and Albertsons — who compete in 22 states — agreed to sell 579 stores in places where their locations overlap to C&S Wholesale Grocers, a New Hampshire-based supplier to independent supermarkets that also owns the Grand Union and Piggly Wiggly store brands.

But the Federal Trade Commission and two states — Washington and Colorado — sued to block the merger earlier this year, saying it would raise prices and lower workers' wages by eliminating competition. It also said the divestiture plan was inadequate and that C&S was ill-equipped to take on so many stores.

On Wednesday, Albertsons said that Kroger failed to exercise “best efforts” and to take “any and all actions” to secure regulatory approval of the companies’ agreed merger transaction.

Albertsons said Kroger refused to divest the assets necessary for antitrust approval, ignored regulators' feedback and rejected divestiture buyers that would have been stronger than C&S.

“Kroger’s self-serving conduct, taken at the expense of Albertsons and the agreed transaction, has harmed Albertsons’ shareholders, associates and consumers,” said Tom Moriarty, Albertsons’ general counsel, in a statement.

Kroger said that it disagrees with Albertsons “in the strongest possible terms.” It said early Wednesday that Albertsons was responsible for “repeated intentional material breaches and interference throughout the merger process.”

Kroger, based in Cincinnati, Ohio, operates 2,800 stores in 35 states, including brands like Ralphs, Smith’s and Harris Teeter. Albertsons, based in Boise, Idaho, operates 2,273 stores in 34 states, including brands like Safeway, Jewel Osco and Shaw’s. Together, the companies employ around 710,000 people.

Kroger sued the FTC in August in federal court in Ohio, claiming that the federal agency’s in-house administrative hearings were unlawful because the FTC was also able to challenge the merger in federal court in Oregon. In paperwork filed Wednesday, the FTC said it expected to update the court on its next steps in that case by Dec. 17.

In Colorado, which also sued to block the merger, Attorney General Phil Weiser said Tuesday that he still was awaiting a decision from a state judge. In that case, Colorado also was challenging an allegedly illegal no-poach agreement Kroger and Albertsons made during a 2022 strike.

Shares of Albertsons fell 1.5% Wednesday, while Kroger's stock was up 1%.

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