Washington State Attorney General prevails in Kroger–Albertsons merger ruling
The Washington State Office of the Attorney General and the State of Colorado Department of Law engaged Nitin Dua in their efforts to block Kroger Co.'s proposed $25 billion acquisition of Albertsons. A Washington state judge ruled to permanently halt the deal, opining that there is “fierce” competition between Albertsons and Kroger and that the merger would lessen that competition. In a third parallel case, a federal judge in Oregon also ruled in the favor of Federal Trade Commission and temporarily blocked the merger.
Both Washington and Colorado had sued separately to block the merger, alleging that the deal would harm consumers. Albertsons and Kroger are among the largest supermarket chains in the country and compete head-to-head in both states. Kroger operates around 2,700 stores nationally and owns several banners in the states of Washington and Colorado, including Fred Meyer and King Soopers; Albertsons operates around 2,200 stores across the country, including the well-known store banner Safeway. The companies proposed divesting over 570 stores to C&S Wholesale Grocers in order to help win approval for the merger.
Dr. Dua opined on market definition, analyzed likely harm to consumers, and assessed the likelihood of the divestiture resolving competitive concerns. He submitted multiple reports, provided deposition testimony, and testified at both trials.
In the Washington court decision, Judge Marshall Ferguson cited Dr. Dua’s written and trial testimony numerous times and agreed with both his market definition and competitive effects analysis. Judge Ferguson cited Dr. Dua’s analysis and concluded that the merger will be “presumptively anticompetitive in all 57 markets” under both 2010 and 2023 Merger Guidelines. The judge also cited Dr. Dua’s diversion analyses in several instances and agreed with him in finding that the merger will “eliminate extensive head-to-head competition between Kroger and Albertsons.” The judge also concluded that the divestiture to C&S is “unlikely to restore lost competition.”
The Colorado case is pending.