FTC Loses Bid to Compel Docs in Kroger-Albertsons Deal Challenge

Kroger Co. and Albertsons Cos. defeated the Federal Trade Commission’s efforts to force the supermarket giants to produce documents on their plans to divest stores as part of their $25 billion tie-up.

The FTC’s request for negotiation materials was “premature,” Chief Administrative Law Judge Michael Chappell said in a Thursday order denying the FTC’s motion without prejudice.

The administrative judge’s decision comes roughly a month after Kroger and Albertsons announced they had reached an amended plan to sell off 579 stores to C&S Wholesale Grocers Inc. to ensure C&S operates competitively following the completion of the proposed deal and to allay antitrust enforcers.

The grocers had said they would produce all non-privileged documents by May 17, and would also produce a privilege log listing any withheld materials, Chappell said in his order. They “will be held to their representations,” he stated.

Kroger and Albertsons followed up Thursday asking the court to modify its order requiring the production of privilege logs, saying they needed until May 24. “Carefully constructing a privilege log is particularly important in this case because Kroger and Albertsons expect all of the plaintiffs to challenge their privilege assertions,” the companies’ counsel said.

The FTC, eight states, and Washington, D.C., earlier this year filed a separate suit in federal court to block Kroger’s $24.6 billion acquisition of Albertsons, arguing the deal would suppress worker wages and lead to higher prices for groceries. Colorado and Washington state filed their own suits in state courts to block the deal.

Weil, Gotshal & Manges LLP and Arnold & Porter Kaye Scholer LLP represent Kroger. Dechert LLP and Debevoise & Plimpton LLP represent Albertsons.