Kroger files injunction against FTC

The Kroger Co. says it has filed a motion for a preliminary injunction against the Federal Trade Commission’s challenge of its proposed merger with Albertsons Cos. Inc. in the U.S. District Court of the Southern District of Ohio.

In February, the FTC filed a suit to prevent the proposed merger — a $24.6 billion deal — saying that the merger is anticompetitive.

Kroger said in a news release that the FTC's move violates its constitutional protections by proceeding with the administrative tribunal as well as a separate action in federal court.

The Cincinnati-based company alleges the FTC is violating Article II of the Constitution because the administrative law judge presiding over the administrative proceeding is not removable by the president. This principle was recognized and applied by the Supreme Court in Free Enterprise Fund v. Public Company Accounting Oversight Board, the release said.

Kroger also alleges the FTC violates Article III of the Constitution by seeking to adjudicate the copmany'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, the release said.

Kroger also said the FTC seeking to split its challenge to the merger into two separate tribunals is an inappropriate attempt to receive multiple opportunities to litigate the same issues. The company said the FTC has also filed a motion in the federal court proceedings seeking to block the merger for the duration of its administrative proceeding, which will likely take several years to resolve.

Kroger said the evidentiary hearings for the federal court proceeding are set to begin on Aug. 26 in the District of Oregon.

"The merger between Kroger and Albertson's is squarely focused on ensuring we bring customers lower prices starting day one while securing the future of good-paying union jobs," Kroger Chairman and CEO Rodney McMullen said in the release. "We stand prepared to defend this merger in the upcoming trial in federal court — the appropriate venue for this matter to be heard — and we are asking the Court to halt what amounts to an unlawful proceeding before the FTC's own in-house tribunal."