The Kroger Co. (NYSE: KR) has filed a motion for preliminary injunction against the Federal Trade Commission’s (FTC) challenge to its merger with Albertson’s Companies Inc. (NYSE: ACI), arguing that the agency’s decision to proceed in an administrative tribunal along with a separate action in federal court is unconstitutional.
In a press statement, the Cincinnati-headquartered supermarket chain argued the FTC is running afoul of Article II of the Constitution because “the Administrative Law Judge presiding over the administrative proceeding is not removable by the President of the United States. This principle was recognized and applied by the Supreme Court in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010).”
Kroger’s also claimed the FTC violated Article III of the Constitution “by seeking to adjudicate Kroger’s private rights to contract with another private party administratively through the Executive Branch rather than in the independent Judicial Branch. This standard was reinforced this past term by the Supreme Court in SEC v. Jarkesy (2024).”
Kroger – which filed its motion in the U.S. District Court, Southern District of Ohio – stated the FTC’s effort to pursue action in two different tribunals was “an inappropriate attempt to receive multiple opportunities to litigate the same issues.”
The Kroger-Albertsons transaction was announced last October, but in February a lawsuit was filed by the FTC, eight states and the District of Columbia to stop the deal that would create a combined company with more than 4,000 stores. A district court hearing has been scheduled for Aug. 26 on the FTC’s bid for a preliminary injunction to block the merger. Last month, the companies agreed to a temporary injunction in a state lawsuit filed by Colorado Attorney General Phil Weiser.
The merger of supermarket chains has become a campaign issue for Vice President Kamala Harris’ presidential past, who has claimed without evidence that supermarket companies are price gouging consumers.
;
