The plaintiffs from states including California, Texas, and Florida simply did not prove how the $24.6 billion potential merger would impact them personally, according to U.S. District Judge Vince Chhabria. The lawsuit was the first private action against the deal.
Chhabria also said the lawsuit claims are simply too early, since the Federal Trade Commission (FTC) has yet to rule on the merger deal. The plaintiffs have until Oct. 2 to file any amended complaint challenging the ruling.
Plaintiff attorney Joseph Alioto also got an earful from Chhabria, who called the preliminary injunction “weak,” providing no evidence, no analysis, and no declaration from an expert about the effect the Kroger, Albertsons deal would have on market competition.
Alioto told the court that his clients did not have to wait for FTC approval because U.S. antitrust laws allow private citizens to challenge mergers without any government clearance.
Chhabria, however, said many details of the merger have not surfaced yet, making it impossible to assess the damages it would create. The judge added that the plaintiffs have a lot of work to do to prove their case.
The FTC and the Department of Justice recently released an updated version of the general guidelines the departments follow around merger deals.
Of the proposed new merger guidelines, the ones that could affect the potential Kroger, Albertsons merger concern anti-competition. (“Mergers should not significantly increase concentration in highly concentrated markets,” “Mergers should not otherwise substantially lessen competition or tend to create a monopoly”).
When asked about the proposed guidelines, Kroger CEO Rodney McMullen said he did not have any monopoly concerns regarding the merger deal.