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CINCINNATI – The Kroger Co. today announced it has filed its answer and counterclaims against Albertsons in the Delaware Court of Chancery regarding the merger agreement that was terminated in December 2024.
According to Kroger’s court filing, the company asserts that while it was diligently working to secure regulatory approval for the merger, Albertsons was secretly collaborating with C&S Wholesale Grocers, the agreed-upon divestiture buyer, to undermine Kroger’s efforts. The alleged misconduct was revealed during antitrust trials, particularly through the testimony of Susan Morris, Albertsons’s CEO designate. Due to these actions, Kroger contends that Albertsons is not entitled to the $600 million termination fee or any additional damages it seeks.
Kroger claims that Albertsons executives, including Ms. Morris, engaged in covert discussions with C&S, using personal communication channels to further their own regulatory strategy. This resulted in C&S publicly questioning the viability of the divestiture package it had initially agreed to, leading regulators to perceive C&S as an inadequate buyer. These actions, Kroger asserts, directly contributed to the Washington court's decision to block the merger.
The counterclaims further state that Albertsons developed a ‘Plan B’ strategy to sue Kroger in the event the merger was not completed. Kroger alleges that Albertsons manufactured a paper trail over several months, contradicting testimony its executives provided under oath during the antitrust proceedings. According to Kroger, Albertsons' immediate filing of a 140-page complaint following the merger’s collapse indicates a premeditated shift toward litigation rather than its contractual duty to finalize the deal.
Kroger is seeking damages from Albertsons for alleged willful misconduct and breaches of the merger agreement. Specifically, Kroger aims to recover its substantial investment in regulatory approval efforts, which it claims were undermined by Albertsons’s actions.
