FTC's in-house tribunal violates
Constitutional protections against federal government
overreach
Company remains prepared to defend merger with
Albertsons in upcoming federal court trial
CINCINNATI, Aug. 19,
2024 /PRNewswire/ -- The Kroger Co. (NYSE: KR) today
filed a motion for preliminary injunction in the U.S. District
Court, Southern District of Ohio,
against the Federal Trade Commission's (FTC) administrative
proceeding challenging the company's merger with Albertson's
Companies, Inc. The company argues that by proceeding in its
administrative tribunal, in addition to the separate action in
federal court, the FTC is violating Constitutional protections.
The motion details how the FTC's administrative proceeding
against the merger clearly violates the Constitution in two
areas:
- First, the FTC violates 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).
- Second, the FTC violates 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).
Furthermore, the FTC has sought to split its challenge to the
merger into two separate tribunals in an inappropriate attempt to
receive multiple opportunities to litigate the same issues. Despite
forcing Kroger to participate in this unconstitutional
administrative proceeding, 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. Evidentiary hearings for the federal
court proceeding are set to being on August
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," said Rodney McMullen, Kroger Chairman and CEO. "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."
About Kroger
At The Kroger Co. (NYSE:KR), we are dedicated to our Purpose: to
Feed the Human Spirit™. We are, across our family of companies
nearly 420,000 associates who serve over eleven million customers
daily through a seamless digital shopping experience and retail
food stores under a variety of banner names, serving America
through food inspiration and uplift, and creating
#ZeroHungerZeroWaste communities.
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SOURCE The Kroger Co.