Colorado Court Schedules Kroger-Albertsons Hearing in August

Judge Sets Plan for Two Weeks Before FTC Hearing
a Kroger store
A worker pushes shopping carts outside a Kroger grocery store in Dallas. (Shelby Tauber/Bloomberg News)

A Colorado court scheduled a preliminary injunction hearing on supermarket giant Kroger Co.’s proposed acquisition of rival Albertsons Cos. in mid-August, before a U.S. government antitrust challenge to the deal.

Judge Andrew Luxen in Denver District Court said he would hold the hearing from Aug. 12-22 — two weeks before a federal court will hold its own hearing on the Federal Trade Commission’s efforts to block the deal.

Luxen said he would schedule a three-week trial on the Colorado attorney general’s challenge to the deal on Sept. 30 through Oct. 18, which may require the companies to extend their merger agreement beyond its current deadline.

The companies had proposed allowing the FTC’s lawsuit — set for an injunction hearing in Portland, Ore., federal court beginning Aug. 26 — to go forward first.

Kroger and Albertsons didn’t immediately respond to a request for comment on the Colorado court’s schedule.

Matthew Wolf, a lawyer representing Kroger, said the supermarkets have reached a “handshake deal” with C&S Wholesale Grocers Inc. for an “enhanced divestiture package.” The companies plan to provide the details on that proposal to attorneys general and various courts, Wolf said. The new package would “obviate all of the Colorado AG’s concerns,” he said.

“We’ve listened to the regulators,” Wolf said at a hearing in Colorado state court in Denver on March 25. “The divestiture package addresses those concerns.”

Arthur Biller, a lawyer with the state of Colorado, said the attorney general’s office hasn’t yet seen a revised package. “We don’t know when we are going to get that revised remedy proposal,” Biller said.

Timeline of Legal Challenges

Aug. 12-22: Colorado v. Kroger (Denver County District Court) — Preliminary Injunction

Aug. 26: FTC v. Kroger (District of Oregon) — Preliminary Injunction

Sept. 16: Washington v. Kroger (King County Superior Court) — Trial

Sept. 30: Colorado v. Kroger (Denver County District Court) — Trial

Oct. 9: Outside date in Kroger-Albertsons merger agreement

Colorado sued in state court to block the proposed deal on Feb. 14, following Washington’s attorney general, who also sued in state court. Weeks later, the FTC, joined by eight other states and Washington, D.C., filed a lawsuit to block the merger in Oregon federal court.

The Washington state case is set to begin trial on Sept. 16.

Meanwhile, the merger agreement between Kroger and Albertsons has an outside date of Oct. 9, Wolf said. Extending that date would be a “very high hurdle to clear,” he said, since some of the financing expires then. Kroger, however, would be amenable to an extension, he said.

Kroger and Albertsons rank Nos. 38 and 40, respectively, on the Transport Topics Top 100 list of the largest private carriers in North America.